1.1. This Agreement is entered into between BrownSense Africa Group (Pty) Limited [Registration Number: 2019/594208/07] (“BrownSense.Africa”), a company incorporated under the laws of the Republic of South Africa and having its principal place of business located at First Floor, 61 Katherine Street, Sandton, 2196 and the Vendor.
1.2. BrownSense.Africa owns and operates an internet based platform in South Africa that allows Vendors to sell their products online to the Customers, which platform is currently provided on the website www.brownsense.africa, and may be provided on different websites or applications in the future as BrownSense.Africa may elect (the “Platform”);
1.3. The Vendor intends to sell products on the Platform according to the terms and conditions contained herein.
1.4. This Agreement expressly supersedes prior agreements or arrangements with the Vendor.
1.5. Guidelines will be available to Vendors for guidance on operations and will be displayed in the footer of SellerPortal. Guidelines are in addition to and shall be deemed a part of the present Agreement for the purposes of the applicable operating model, rules, and services. Guidelines shall prevail over this Agreement in the event of a conflict.
1.6. Any update to the Agreement will be communicated to the Vendor, who will have 14 calendar days to accept the terms. If the Vendor does not accept the terms, the Vendor Account will be suspended. If the Vendor accepts the Agreement, the new terms and conditions shall apply to all the orders processed after electronic acceptance of amendments and updates.
2.1. In this agreement unless the context otherwise indicates –
2.1.1. The singular shall include the plural and vice versa;
2.1.2. Reference to the masculine gender shall include the feminine gender and vice versa;
2.1.3. Natural persons shall include created entities (corporate or unincorporated) and vice versa; and
2.1.4. The headings in this Agreement are used for the sake of convenience and shall not govern the interpretation hereof.
2.2. “Account Manager” means a BrownSense.Africa professional agent specialized in supporting the commercial growth of a Vendor on the Platform. The assignment of an Account Manager to a Vendor is solely at BrownSense.Africa’s discretion;
2.3. “Business Day” means any day on which normal business is conducted and excludes Saturdays, Sundays, and public holidays in the Republic of South Africa.
2.4. “Confidential Information” means the content of this Agreement, all the information and data acquired in connection with or for the purposes of this Agreement and any information that is not publicly available to third parties.
2.5. “Confirmation of Sale” means the notice confirming a sale sent by BrownSense.Africa to the Vendor either via the Platform and/or via email. The Confirmation of Sale notice shall be presumed to have been received by the Vendor on the same date it was sent via the Platform and/or via email.
2.6. The “Customer” means BrownSense.Africa customers who make online purchase orders on the Platform.
2.7. The “Order” means the purchase order completed by the Customer, stating his contact information and detailed description of the Product/s he wishes to purchase.
2.8. “Payment Method” means electronic payment, which includes but is not limited to payment by credit card, debit card, and Electronic Funds Transfer (EFT).
2.9. The “Product” means the product/s offered on the Platform by the Vendor.
2.10. The “SellerPortal” means the online interface where Vendors administer and monitor their Product sales.
2.11. The “Invoice” means the invoice issued by BrownSense.Africa to the Customer.
2.12. The “Warehouse” means BrownSense.Africa’s warehouse situated at c/o Parcel Ninja, Ashworth Logistics Park, Building C, 18 Laneshaw Street, Linbro Park, Frankenwald, GP, South Africa.
3. Scope of Services
3.1. The Vendor shall offer its Products to Customers on the Platform.
3.2. BrownSense.Africa shall accept online purchase orders from the Customers in respect of the Vendor’s Products offered on the Platform, by way of an online application form on the Platform and completed by the Customer. The contract of sale is concluded between BrownSense.Africa and the Customer, subject to the Terms and Conditions published on the Platform.
3.3. The Vendor shall package its Products and deliver to BrownSense.Africa’s Warehouse, and ensure that it has sufficient stock for orders to be fulfilled. To this end, the Vendor will be provided with 100 000cm3 space which cost is included in clause 7.2 below. Should the Vendor require additional storage space, the Vendor shall procure additional space at the rates provided in clause 7.2 below
3.4. BrownSense.Africa shall do a quality inspection before delivering the Product to the Customer and reserves the right to return the Product to the Vendor, at the Vendor’s expense, should the Product fail to meets BrownSense.Africa’s quality standard
3.5. The Vendor shall accept returns of all Products returned by Customers and accepted by BrownSense.Africa, in line with BrownSense.Africa’s return policy and/or this agreement.
3.6. Ownership of the Products shall vest in the Vendor until such time as the stock is sold, paid for in full (by the Customer to BrownSense.Africa) and delivered to the Customer. On delivery, ownership in the Products shall vest in the Customer. BrownSense.Africa shall also monitor the time it takes for the Vendor’s Products to clear, and sell out. In the event that the Vendor’s stock remains unsold for a period of sixty (60) days, BrownSense.Africa reserves the right to relook keeping the Vendor as a merchant on its platform.
3.7 BrownSense.Africa accepts no liability for the quality of the Product and reserves the right to suspend any Vendor from its platform in the event that any product or service fails its quality acceptance criteria or in the event of a bona fide complaint by a Customer.
4. BrownSense.Africa’s Rights and Obligations
4.1. BrownSense.Africa shall display the Products specified by the Vendor, via the SellerPortal, on the Platform.
4.2. BrownSense.Africa shall offer the Product/s for sale for the display price specified by the Vendor, via SellerPortal.
4.3. BrownSense.Africa may use third party service providers to fulfil some part of the services to the Vendor and to the Customer.
4.4. BrownSense.Africa shall have the right to reject products, descriptions of products and/or pictures of products specified by the Vendor, via the SellerPortal, in the event that those products and/or pictures do not meet BrownSense.Africa’s quality standards, BrownSense.Africa’s Photography and Images Guidelines. Should a product be rejected, BrownSense.Africa will provide the Vendor with reasons for the rejection.
4.5. BrownSense.Africa reserves the right to:
4.5.1. Remove the entire or a portion of a Product page which would contravene the terms and conditions of this Agreement.
4.5.2. Remove an image proposed by the Vendor for any reason, including but not limited to the following:
126.96.36.199. The quality of the image does not match Photography and Images Guidelines , available in SellerPortal, in terms of quality or accuracy, or
188.8.131.52. The image offends the sensibility of Customers or the image is not compliant with moral ethics.
4.6. BrownSense.Africa shall send a Confirmation of Sale to the Vendor via the SellerPortal and/or by email.
4.7. BrownSense.Africa shall be responsible for delivering the Product to the Customer at the Vendor’s or Customer’s expense.
4.8. At BrownSense.Africa’s discretion, it may provide the Vendor with analytics about the performance of the Vendor’s products and additional marketing support.
4.9. BrownSense.Africa will provide the Vendor with training material and the requisite support for the Vendor to build the level of competence and acquire the knowledge to operate on the Platform. Training may be provided online or offline. BrownSense.Africa reserves the right to charge a fee for certain training programmes. Vendors may be required to attend training in order to be eligible to sell on the Platform.
5. Vendor’s Rights and Obligations
5.1. Vendor Account
5.1.1. Every Vendor who lists Products on SellerPortal must create an account.
5.1.2. An account created in SellerPortal is for the Vendor’s exclusive use and cannot be transferred to a third party without BrownSense.Africa’s prior written consent. It is prohibited for a Vendor to use the SellerPortal account for different points of sale. The Vendor understands and agrees that each SellerPortal account is for one unique point of sale and one email address.
5.1.3. The Vendor acknowledges that Vendor information shared with BrownSense.Africa is necessary to provide the services.
5.2. Product Listing and Content
5.2.2. The Vendor authorises BrownSense.Africa, by virtue of this Agreement, to sell the Product/s on the Platform to Customers on behalf of the Vendor, which pass quality control. The Vendor further authorises BrownSense.Africa to divulge data and information about the Vendor and the Products on its Platform to the extent required for marketing. The Vendor shall be responsible for its own marketing, which may include using advertising options offered by BrownSense.Africa on the Platform.
5.2.3. The Vendor shall be responsible for listing its own products. The Vendor shall provide a detailed description of the Products and all relevant and necessary information to BrownSense.Africa, via the SellerPortal, prior to displaying a Product on the Platform. This includes, but is not limited to, a detailed title and sub-title, prices, quantity, picture and description of the Product (complying with Content and Photography and Images Guidelines ).
5.2.4. The Vendor grants BrownSense.Africa the perpetual right to use, reproduce, modify, adapt, publish, translate and create other content and to distribute the content that the Vendor provides to describe the Products and the image itself.
5.2.5. BrownSense.Africa offers Customers the opportunity to evaluate the Products on the Platform. BrownSense.Africa will review these evaluations and may publish them, but reserves the right to delete ratings and reviews.
5.2.6. The Vendor acknowledges and undertakes that all the information relating to the Products provided to BrownSense.Africa is true and does not violate any third party’s Intellectual Property Right. The Vendor further guarantees that this information satisfies all legal requirements, and in particular satisfies information requirements for consumer protection
5.2.7. The Vendor indemnifies BrownSense.Africa against any third party claims resulting from the Product information provided by the Vendor and/or resulting from the product/s itself.
5.2.8. The Vendor must adhere to BrownSense.Africa’s Prohibited and Restricted Products Policy .
5.2.9. BrownSense.Africa may conduct audits and tests in respect of the Products provided by the Vendor to guarantee that the Products listed on the Platform are not counterfeit products. Listing of counterfeit products would be considered fraudulent activity and may lead to legal proceedings.
5.2.10. Every item sold shall be identical to its description on the Platform and to the image provided. BrownSense.Africa may inspect the Products listed by the Vendor in order to check their conformity with the specifications mentioned by the Vendor on its SellerPortal and with the standards of quality stated therein. In case of non-conformity with the technical characteristics, colour, image or in case of technical default, BrownSense.Africa shall return the Product to the Vendor (and impose penalties as stipulated in the Guidelines ). The Vendor shall not knowingly deceive a potential Customer by misrepresenting a Product.
5.2.11. The Vendor shall assume responsibility for the content it publishes on its Product page.
5.2.12. The Vendor agrees that because of lead time due to quality control, the Product page may not go online instantly.
5.3. Sale of the Products
5.3.1. The Vendor is responsible for setting the price of its Products on the Platform. The price must include taxes and comply with applicable laws in effect for the full duration of the listing.
5.3.2. The Vendor authorizes BrownSense.Africa to accept binding sales on its behalf.
5.3.3. The Vendor does not have the right to contact the Customers directly and the Vendor agrees that BrownSense.Africa is the owner of the Customer information.
5.3.4. The Vendor shall not send advertising or promotional emails to a Customer without the prior consent of BrownSense.Africa and the Customer.
5.3.5. The Vendor is responsible for keeping an up-to-date inventory of all the Products displayed on the Platform and undertakes to immediately replenish inventory by timeously delivering it at the designated BrownSense.Africa warehouse.
5.3.6. The Vendor must adhere to its range of Products and prices as provided to BrownSense.Africa and as described on the Product listings on the Platform.
5.3.7. The Vendor acknowledges and undertakes that there are no ongoing criminal, insolvency or tax investigation proceedings or other penalties outstanding in relation to the Product. The Vendor further undertakes to take great care to keep his range of Products, stock count, prices and associated terms and conditions like delivery fees up to date.
5.4. Packaging and Fulfilment
5.4.1. BrownSense.Africa shall process the Order and prepare the packaging of the Product, with all reasonable care, on receipt of a Confirmation of Sale through BrownSense.Africa.
5.5.1. If a Vendor submits Products using the Promotion Feature in SellerPortal, the Vendor agrees to sell the Products at the price entered into the Promotion Feature for the period mentioned in the Promotion description.
5.6.1. The Vendor shall deliver Products, or arrange for a service provider to deliver the Product, to BrownSense.Africa’s Warehouse to ensure that stock is consistently adequate. The Vendor shall do this in accordance with the guidelines set out in Annexure A of this agreement.
5.6.2. The Vendor shall ensure that all the Products are the exact products delivered to the Warehouse. The Vendor can only deliver its Products during the opening hours of the Warehouse. When delivering its Products, the Vendor must provide the list of the products and quantities delivered to BrownSense.Africa.
5.7 Training – BrownSense.Africa will, from time-to-time, organize online training sessions for the benefit of the Vendor. These training sessions are compulsory for the Vendor to attend, and the Vendor shall ensure attendance and where not possible, a review of the recorded training as soon as it is made available by BrownSense.Africa.
6.1. Penalties may be instituted in the case of non-compliance by the Vendor with BrownSense.Africa’s quality commitments to its Customers at BrownSense.Africa’s discretion.
6.2. If instituted, penalties shall be awarded to compensate BrownSense.Africa for any extra effort required to meet our mission of providing quality products to Customers, and to protect the best interest of the BrownSense.Africa brand. The following are usual offences that may be subject to penalties: 6.2.1. sale of counterfeit products and non-conformity to the Prohibited and Restricted Products Policy;
6.2.2. slow fulfilment of orders;
6.2.3. cancellation of orders and out of stock;
6.2.4. non-compliance with Packaging Guidelines;
6.2.5. high rate of Returns of products according to BrownSense.Africa’s discretion;
6.2.6. breach/infringement of any applicable law and regulations.
6.3. The Penalties shall be described and instituted in accordance with the Penalty Guidelines.
7. Payment and Taxes
7.1. BrownSense.Africa’s commission:
7.1.1. BrownSense.Africa’s commission for services rendered shall be calculated as a fixed percentage of the Recommended Retail Price (“RRP”) of the Product, excluding VAT. The fixed percentage shall be set out in Annexure A, attached hereto.
7.1.2. The commission percentage shall exclude VAT and VAT shall therefore be added to the commission amount on BrownSense.Africa’s Invoices.
7.1.3. In the event that products are discounted by the Vendor, the parties agree that BrownSense.Africa’s commission shall still be calculated on the full RRP, before any discounts or reductions are applied against the RRP.
The fee structure is set as follows (all in ZAR, excl. VAT):
- Non-refundable application (verification) fee of R200 (payable annually on the anniversary date of the verification)
- Monthly membership fee of R320, which includes storage space of up to 100 000cm3
- Storage Space: 100 000cm3 covered in the above monthly fee. If an additional space of 100 000cm3 is required, an additional monthly amount of R50 becomes payable
- Success fee of 10%
- Fulfilment fees Delivery fee (per order) R70
- Return fee (subject to 9) R0 Optional fees (at Vendor request)
- Picture cost (per Product)* R100
* Samples to be delivered to BrownSense.Africa at Vendor’s cost and returned by BrownSense.Africa at BrownSense.Africa’s cost
* Should Vendor request BrownSense.Africa to take pictures of products, the Vendor shall be entitled to use those pictures (excluding model images) for marketing the sale of their products on www.brownsense.africa only. Whenever these photographs are used by the Vendor, there must be a link redirecting potential customers to those products on www.brownsense.africa. The Vendor shall not be entitled to use the pictures for any other marketing purposes unless expressly agreed to by BrownSense.Africa.
7.3. BrownSense.Africa’s invoicing and payment to the Vendor:
7.3.1. BrownSense.Africa shall provide the Vendor, by the 15th of every month, with:
184.108.40.206. a statement of all the Vendor’s Products sold in the preceding month, less any Products returned in that period, known as an Account Statement. The Account Statement shall include inter alia the details of the Products sold, the quantity sold, the amount the Products were sold for and the amount of VAT charged; and
220.127.116.11. a Tax Invoice for BrownSense.Africa’s commission earned during the preceding month;
7.3.2. The Vendor shall be entitled to the total amount recorded in the Account Statement at Display Price.
7.3.3. BrownSense.Africa shall settle the balance between the total amount due to the Vendor as per the Account Statement and BrownSense.Africa’s Tax Invoice for commission and any other costs as agreed, within 1 month from month-end of the period described in the Account Statement.
7.3.4. The Vendor shall furnish BrownSense.Africa with an original letterhead, with the correct bank account details and signed by an authorized signatory, which details shall act as the agreed bank account into and from which payments shall be made.
7.3.5. BrownSense.Africa shall pay all amounts owing in terms of clause 7.3.3 into a bank account nominated by the Vendor, by electronic funds transfer.
7.3.6. It is specifically recorded that it is the Vendor’s responsibility to declare VAT on Product sales reflected in the Account Statement. For the avoidance of doubt, the parties specifically agree that Section 54(2) of the VAT Act No. 89 of 1991 is applicable. The sale of Products to Customers is deemed to be made by the Vendor and not BrownSense.Africa. The Vendor may use the Product sale information in the Account Statement for the purposes of declaring output VAT.
7.3.7. In the event that the Customer requests an invoice for a Product sale, BrownSense.Africa will issue an invoice on behalf of the Vendor in terms of section 54(2) as stated above.
7.3.8. Payment method may be subject to change as described in the Payment Terms Guidelines.
7.3.9. Each party shall be responsible for the settlement of its respective tax obligations which arises from any transaction in relation to this contract.
8. General acknowledgments
8.1. The Parties acknowledge and agree that BrownSense.Africa has the right to amend/modify the general terms and conditions of the Platform at any time and without giving any justification. In this case, BrownSense.Africa will furnish the Vendor with notice of intended amendments/modifications via email, at least three (3) days prior to making the changes. If the Vendor does not object to these amendments/modifications in writing within three (3) Business Days of delivery of the notice, the changed terms and conditions will be considered accepted by the Vendor.
8.3. The Parties acknowledge and agree that BrownSense.Africa may carry out changes to the Platform or the service, or suspend the service, without notice to the Vendor.
9.1. The Vendor shall accept BrownSense.Africa’s Return Policy provided on the Platform. The Vendor agrees to renounce its own return policy in respect of orders on BrownSense.Africa.
9.2. General conditions for return:
9.2.1. BrownSense.Africa will accept returns from the Customer, at no cost to the Customer, provided that the following conditions are satisfied:
18.104.22.168. The return request must be made by the Customer by contacting BrownSense.Africa’s customer service within no later than Fourteen (14) days from Delivery Date
22.214.171.124. The Products are returned in the original packaging;
126.96.36.199. The Product shows no sign of usage.
188.8.131.52. The returned Product is not one of the non-returnable Products or brands stated on the Platform.
9.3. BrownSense.Africa will collect returns at no cost to the Vendor.
9.4. Conditions for returning a defective Product:
9.4.1. The return request must be made by the Customer within no later than six (6) months from the delivery date and must be in line with provisions of Consumer laws relating to the return of defective goods;
9.4.2. The product must be defective, appear to be defective to BrownSense.Africa or must not comply with the Customer’s right to receive safe and good quality goods in terms of the Consumer Protection Act;
9.4.3. BrownSense.Africa will proceed with the return process, only if BrownSense.Africa’s after sales support team failed to fix the problem;
9.4.4. A quality control is undertaken in the Warehouse in order to determine who is responsible for the return of the product.
9.5. BrownSense.Africa will accept returns of Products that reasonably appear to be defective and will not be obliged to investigate the defect after 14 (fourteen) days; and
9.6. Defective Products will be returned to the Vendor at the Vendor’s expense.
9.7. If the quality control shows that the Customer is responsible for the defect, the product shall be sent back to the Customer and there will be no reimbursement.
9.8. If the Vendor or manufacturer is responsible for the defect, the Product shall be sent back to the Vendor.
9.9. In case of disagreement over the quality control, the Vendor must provide BrownSense.Africa with proof that the Product was not defective and had the quality necessary to be sold when it was delivered to BrownSense.Africa.
9.10. If at the end of the return process, BrownSense.Africa considers that the final Customer must be reimbursed, BrownSense.Africa shall reimburse the Customer and process the return on the SellerPortal, which will reduce the amount due to the Vendor for the particular Account Statement period.
9.11. If the conditions contained in clauses 9.2 and 9.4 are satisfied, BrownSense.Africa will collect and send the returned Product to the Vendor within (14) days, at no additional cost. The Vendor will accept the return.
9.12. The term “return” in terms of this Agreement, includes cancellations prior to delivery to Customer.
10.1. The Parties acknowledge and agree that BrownSense.Africa does not guarantee the quality or the condition of the sold Products. The Vendor acknowledges that all the Products are free from defects in design, materials and workmanship, clear of any liens, claims and encumbrances and comply with all relevant laws, regulations and requirements. The Vendor also acknowledges that the Products are of merchandisable quality, fit for the particular purpose for which they are intended and match their description. The Vendor undertakes to indemnify BrownSense.Africa against any third party claims relating to the quality or the condition of the sold Products or resulting from the Vendor’s violation of any of the applicable laws or regulations.
10.2. BrownSense.Africa does not guarantee that the Platform will be free from all malfunctions, but will exercise all reasonable care and skill to resolve any such issue.
10.3. VAT liability for the product sold rests with the Vendor and BrownSense.Africa shall not be responsible for any VAT issues that may arise.
10.4. BrownSense.Africa does not guarantee any commercial results to the Vendor concerning the products that the Vendor puts on BrownSense.Africa’s platform.
10.5. BrownSense.Africa shall not be held responsible for any prejudice and direct or indirect damages of whatsoever nature done to the Vendor because of the use, interruption or dysfunction of BrownSense.Africa’s website, mobile website, or any other service provided by BrownSense.Africa.
10.6. BrownSense.Africa, its subcontractors and suppliers shall not be responsible for any delays or impossibility to fulfil their contractual obligations in case of:
10.6.1. force majeure;
10.6.2. interruption of the website connection because of maintenance operations or refreshing information published;
10.6.3. momentary inability to have access to the website or mobile application because of a technical problem;
10.6.4. hacking or any other cause which interrupts the access to the internet laws, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes;
10.6.5. interruption of traffic;
10.6.6. interruption of production or operation, difficulties in obtaining labour, fuel, parts or machinery;
10.6.7. power failure or breakdown in machinery.
10.7. The Vendor acknowledges that due to unforeseen technical challenges of telecommunication operators, the permanent availability of www.brownsense.africa cannot be guaranteed.
11.1. The Parties undertake that, for the duration of this Agreement and for one (1) year after termination, they will not disclose, provide, copy or otherwise make available to any third party any Confidential Information of any kind concerning the other Party except to the extent necessary to implement this Agreement and perform the marketing services stated thereto, this includes, but is not limited to, the content of this Agreement, all the information and data acquired in connection or for the purposes of this Agreement. The Parties undertake to comply with all applicable privacy laws and handle accordingly all data related to Customers, Vendors and business partners.
11.2. Upon termination of this Agreement each Party must immediately return to the other Party all material in its possession which contains Confidential Information of the other Party.
12. Intellectual Property Rights
12.1. For the purposes of this Agreement, the Parties acknowledge and agree that BrownSense.Africa has the right to utilize the Products and the Vendor’s name, logos, listings, trademarks, intellectual property rights and significant signs by several means and forms for marketing purposes and disclose the relationship with the Vendor.
12.2. The Vendor grants to BrownSense.Africa a royalty-free, perpetual, unrestricted license to use and distribute any materials provided by the Vendor to BrownSense.Africa, for the purpose of advertising BrownSense.Africa’s service. In particular, this includes using it in Google AdWords campaigns, domain name registrations and other online marketing and search engine optimization measures.
13. Representation and Warranties
13.1. The Vendor represents and warrants that:
13.1.1. It has good title to, and is the sole beneficial owner of, the Products supplied to BrownSense.Africa under this Agreement;
13.1.2. As at the date of this Agreement, the Vendor is not aware of any claim for infringement of Intellectual Property Rights or for the breach of any obligation of confidence, arising out of the manufacture, sale or use of the Products, having made reasonable investigations in this regard, and will immediately notify BrownSense.Africa should such a claim arise;
13.1.3. It will, at no further cost to BrownSense.Africa, procure for BrownSense.Africa all licenses reasonable and necessary to fulfil the services;
13.1.4. The Intellectual Property relating to the Product does not and will not infringe any rights of third parties;
13.1.5. The provision of the Products to BrownSense.Africa does not and will not infringe the rights (including, but not limited to, Intellectual Property Rights) of any third party;
13.1.6. It has the right, power and authority to enter into and perform its obligations in accordance with this Agreement;
13.1.7. All corporate and other necessary action has been taken to authorise the signing and performance of this Agreement; and
13.1.8. This Agreement is valid and legally binding on the Vendor.
13.2. The Vendor further warrants that the Products will:
(a) Be free from defects in design, materials and workmanship;
(b) Be of good quality, and shall be useable and durable for a reasonable period of time;
(c) Be fit for the purpose they are generally intended; and
(d) Meet the relevant Standards and comply with all relevant laws, regulations and Standards;
14.1. The Vendor shall be liable for and hereby indemnifies BrownSense.Africa against proven liabilities, claims, proceedings, judgments, damages, obligations, costs and expenses of any nature (including legal fees on the scale most favourable to BrownSense.Africa and court costs), arising in any manner out of the Vendor’s conduct (acts and/or omissions), or those of the Vendor’s employees, agents or contractors, whether in delict, contract or otherwise, including:
(a) Personal injury or the death of any person;
(b) Loss of or damage to any property; and
(c) Breach of any representation or warranty contained in this Agreement.
14.2. It is not necessary for BrownSense.Africa to incur any cost or expense or make any payment before enforcing a right of indemnity conferred by clause 14.1, and BrownSense.Africa shall be entitled to require the Vendor to step into the BrownSense.Africa’s shoes, and/or to do all such things and incur all such costs as may be reasonably necessary to give effect to the indemnity in this clause, but such costs shall first be discussed and agreed with BrownSense.Africa.
14.3. The indemnities provided shall survive the termination of this Agreement.
BrownSense.Africa shall insure the Products against reasonable risk during the time that the Products are in BrownSense.Africa’s possession, while the Vendor shall effect and maintain at its own expense a suitable insurance policy in respect of any events which may arise in connection with this Agreement.
Any amendments to this Agreement or the Guideline will be communicated to the Vendor by email and SellerPortal account notification. The Vendor will have fourteen (14) calendar days to accept amendments to the Agreement or to communicate its disagreement. If the Vendor does not agree within the fourteen (14) calendar days’ timeline, its SellerPortal account will be suspended. Amendments to the Guidelines will be effective upon BrownSense.Africa posting such updated Guidelines in SellerPortal. The Vendor’s continued access or use of the SellerPortal after such posting constitutes the Vendor’s consent to be bound by the Guidelines, as amended.
The Parties acknowledge and agree that the rights and duties created by this Agreement are personal to the Parties and that it was granted in reliance upon their individual or collective character and business ability, therefore neither Party may assign this Agreement wholly or partially without the prior written consent of the other Party.
18. Entire Agreement
The Parties acknowledge and agree that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressed in it.
The Parties acknowledge and agree that the provisions of this Agreement are severable and if any provision in this Agreement is held invalid or unenforceable under any competent jurisdiction, such invalidity or enforceability will be restricted only to the this provision and will not in any manner effect the validity or enforceability of the other provisions in this Agreement. The parties will endeavour to replace the invalid clause by a valid one that reproduces as closely as possible the intended economic meaning of the invalid clause.
20. Independent Contractors
BrownSense.Africa and the Vendor are acting hereunder as independent contractors. Vendor will not be considered or deemed as an agent, employee, joint venture or partner of BrownSense.Africa. The Vendor’s personnel will not be considered employees of BrownSense.Africa, will not be entitled to any benefits that BrownSense.Africa grants it’s employees and will have no authority to act on BrownSense.Africa’s behalf.
21. Term and Termination
21.1. Duration of Agreement
This Agreement will remain in full force and effect until it is terminated by either Party by serving a thirty (30) day written notice of termination on the other Party. The rights and obligations generated during this notice period are still subject to the terms and conditions of this Agreement.
21.2. Immediate Termination by BrownSense.Africa
BrownSense.Africa may terminate this Agreement immediately if the Vendor fails to satisfy a minimum level of operational performance in order to provide a satisfactory Customer experience of purchase on the Platform. Termination on this basis shall be at BrownSense.Africa’s sole discretion.
BrownSense.Africa may also terminate this Agreement with immediate effect where the Vendor repeatedly receives negative ratings and reviews which are not unjustified or where Vendor repeatedly provides misleading information or withholds information required to present the Vendor’s products. For the avoidance of doubt, typos, mistakes and transmission errors shall not be grounds for immediate termination of this Agreement unless they are intentionally caused or caused by gross negligence. or
If the Vendor fails to fulfil any of its obligations or undertakings stated in clause 5 of this Agreement.
22. Consequences of Termination
22.1. The Parties will settle within a maximum period of 1 month any amounts due in accordance with the terms and conditions of this Agreement.
22.2. Termination of this Agreement is without prejudice to any of the rights, remedies or obligations of the Parties existing at the time of termination and the obligation to pay any amounts due and/or payable hereunder.
23. Breach of Agreement
23.1. BrownSense.Africa may:
23.1.1. Terminate this Agreement with immediate effect, if the Vendor is in breach of its obligations under this agreement and such breach is not remedied within 7 (Seven) days of receiving a notice of breach from BrownSense.Africa; or
23.1.2. Terminate this Agreement on the occurrence of the third breach, if the Vendor commits a breach of this Agreement on any 3 (Three) occasions in a rolling 6 (Six) month period; or
23.1.3. Impose appropriate penalties, such as delisting/suspension of the Vendor from the Platform for an appropriate period.
24. Governing Law and Dispute Resolution
This Agreement is governed by and construed in accordance with the substantive laws of the Republic of South Africa. Any dispute arising out of the execution, interpretation or termination of this Agreement will be settled by any competent Court in the Republic of South Africa.
25. Privacy and Data Protection
25.1. In performing their responsibilities under this Agreement, the Parties shall comply with the provisions of the prevailing privacy and data protection legislation governing the collection, use and processing of Personal Information as defined in the Protection of Personal Information Act 4 of 2013.
25.2. The Vendor shall at all times during the performance of its obligations in terms of this Agreement ensure that (a) no data collected from any person during the supply of the Products, is sold, disclosed, commercially exploited, or used in any way other than as expressly authorised by BrownSense.Africa and (b) ensure that it processes data for only the express purpose for which it was obtained.
25.3. The Vendor consents to the collection, processing and further processing of its personal information (including personal information contained in electronic communications) by the Purchaser for the purposes of implementing this Agreement and facilitating the supply of the Products.
(Please disregard the clauses which is not relevant to your product)
TERMS AND CONDITIONS APPLICABLE ONLY TO SERVICE BASED BUSINESSES
- Acknowledgement & Acceptance of Agreement
- Acknowledgement & Acceptance of Agreement
- Pursuant to this Agreement, Advertiser submits business listing(s) and/or link(s) to, its web site(s) for inclusion on BrownSense Africa Group web site. The terms and conditions applicable are set forth below. Listing shall be subject to the Advertiser undergoing a verification process (a know your client process).
- Basic inclusion of a website title, description and URL (‘Business Listing’) on the BrownSense Africa Group site are sold on an inclusion basis for a non-refundable annual verification fee and an annual renewal fee. BrownSense Africa Group may, in its sole discretion, change the setup or annual renewal fee at any time.
- Following submission by Advertiser of a Business Listing submission form, BrownSense Africa Group will review the Business Listing entry containing the information submitted by Advertiser regarding its website/details, to determine whether Advertiser’s Business Listing entry and applicable web site is eligible for inclusion in BrownSense.Africa within five (5) business days from the date the Business Listing submission form is received by BrownSense Africa Group, BrownSense Africa Group will review Advertiser’s Business Listing entry inclusion to determine whether it is eligible for inclusion in BrownSense Africa Group.
- Notification of Changes
- BrownSense Africa Group may, at any time in its sole discretion, change the terms of this Agreement. Modifications may include, without limitation, increases to the annual fees charged for the Listing Services. Whenever BrownSense Africa Group changes this Agreement, it will post those changes to its Web Site and will update the ‘Last Updated’ date at the top of this Agreement. The revised terms will become effective on the date BrownSense Africa Group posts such changes to its Web Site, except annual fee increases will become effective at the time your annual Agreement automatically renews. It is your obligation to check this Agreement regularly to ensure you are updated as to any changes. Without limiting the foregoing, if BrownSense Africa Group determines in its sole discretion that the modification is material, it will notify you electronically via the email address associated with each account. If any modification to this Agreement is not acceptable to you, your only remedy is to notify BrownSense Africa Group of your election not to renew your Agreement, as provided in Section 3 below.
- Term of Agreement
- BrownSense Africa Group may, at any time in its sole discretion, with or without cause, terminate this Agreement and/or cancel any listings or links submitted under this Agreement.
- Auto-Renewal: Business Listing subscription will be automatically* renewed on a month to month basis*, unless Advertiser notifies BrownSense Africa Group by sending an email with the words ‘CANCELLATION’ in the subject line to *email@example.com*. Advertiser shall deliver such notice at least thirty (30) days prior to the commencement of the next renewal term. *Notice of cancellation to be sent (30) days prior to or after expiration of contract and not earlier.*
- Service Fees and Payment Terms
- Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. If Advertiser disputes any charge made under this Agreement, Advertiser must notify BrownSense Africa Group in writing within sixty (60) days after any such charge; failure to so notify BrownSense Africa Group shall result in the waiver by Advertiser of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by BrownSense Africa Group. No other measurements or statistics of any kind shall be accepted by BrownSense Africa Group or have any effect under this Agreement.
- Fees: Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. If Advertiser disputes any charge made under this Agreement, Advertiser must notify BrownSense Africa Group by sending a detailed notice of dispute to BrownSense Africa Group via email at: firstname.lastname@example.org within ten (3) days of the charge; failure to so notify BrownSense Africa Group shall result in the waiver by Advertiser of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by BrownSense Africa Group. No other measurements or statistics of any kind shall be accepted by BrownSense Africa Group or have any effect under this Agreement. All payments made under this Agreement are non-refundable.
- Late Payments: Any charges which are past due by more than thirty (30) days shall bear interest at the rate of ten percent (10%) per month or the maximum rate permitted by applicable law, whichever is less, and Advertiser shall reimburse BrownSense Africa Group for any costs and fees (including attorneys’ fees) incurred by BrownSense Africa Group in an effort to collect any amount due hereunder.
- Disputes: If Advertiser has any questions or objections regarding charges, it must promptly (within 3 days from invoice) notify BrownSense Africa Group in writing (including electronic mail) and make a reasonable and good faith effort to resolve its objection. Such notice must identify the amount in dispute and must provide in reasonable detail the basis for disagreement with any charges. For purposes of this paragraph, disputing payment because of inability to pay or because of Advertiser’s failure to submit a proper notice of non-renewal by the applicable date shall not be considered to be a good faith dispute.
- Payment Method: To maintain a Listing account with BrownSense Africa Group, Advertiser must pay into the bank account designated by BrownSense Africa Group in an invoice sent to the Advertiser. Listing accounts are renewed on an annual basis as set forth in Section 6.
- Editorial Standards and Requirements
- Advertiser’s Listing entries are written by the Advertiser subject to BrownSense Africa Group approval. Advertiser agrees to be bound by and follow the BrownSense Africa Group editorial standards as described in BrownSense Africa Group’s Editorial Guidelines. Advertiser’s submissions to the BrownSense Africa Group site will be subject to BrownSense Africa Group editorial review, modification and/or removal in BrownSense Africa Group sole discretion. BrownSense Africa Group reserves the right, but not the obligation, to review Advertiser submissions.
- ADVERTISER REPRESENTS AND WARRANTS THAT ITS LISTINGS, LINKS AND SUBMISSIONS TO THE BROWNSENSE AFRICA GROUP SITE DO NOT, AND WILL NOT INCLUDE CONTENT, OR LINKS TO CONTENT, WHICH MAY RESULT IN A CLAIM AGAINST, OR CIVIL OR CRIMINAL LIABILITY TO, BROWNSENSE AFRICA GROUP OR THAT OTHERWISE VIOLATES APPLICABLE LAW OR THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTENT THAT IS FRAUDULENT, DECEPTIVE, LIBELOUS, DEFAMATORY, OBSCENE, PORNOGRAPHIC, ADULT-THEMED, INFRINGING OR THAT VIOLATES THE PRIVACY, PUBLICITY OR ANY OTHER RIGHT(S) OF A THIRD PARTY.
- ADVERTISER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS BROWNSENSE AFRICA GROUP AND ITS AFFILIATES AND PARTNERS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, AGENTS, LICENSEES AND EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, DAMAGES, AND COSTS INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES (COLLECTIVELY, ‘LOSSES’) THAT MAY AT ANY TIME BE INCURRED AS A RESULT OF ANY THIRD PARTY CLAIMS, SUITS OR PROCEEDINGS: (A) ARISING OUT OF ANY BREACH BY ADVERTISER OF ANY DUTY, REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; OR (B) ARISING FROM THE CONTENT OR SUBJECT MATTER OF ANY ADVERTISER LISTING, LINK, SUBMISSION OR CONTENT OF SITES TO WHICH VISITORS CAN LINK THROUGH ADVERTISER’S LINKS OR LISTINGS. BROWNSENSE AFRICA GROUP RETAINS COMPLETE EDITORIAL DISCRETION WITH RESPECT TO ALL LISTINGS AND LINKS, INCLUDING, WITHOUT LIMITATION, REGARDING THE SELECTION, PLACEMENT, KEYWORDS, TITLE, DESCRIPTIONS AND MULTILINKS.
- BrownSense Africa Group endeavors to protect the security of Advertiser’s payment information during transmission by using Secure Sockets Layer (‘SSL’) when receiving payment information through the BrownSense Africa Group website. It is important for Advertiser to protect against unauthorized access to your password and your computer. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and Advertiser agrees to accept full responsibility for all activities conducted using Advertiser’s account on BrownSense Africa Group .
- Registration Information
- In connection with the Listing program, Advertiser is required to submit registration information. BrownSense Africa Group may use such information to contact Advertiser regarding its listings and links. BrownSense Africa Group may disclose such information to its third party vendors and service providers in connection with conducting its business and providing and maintaining its site, and, in addition, in the good faith belief that such disclosure is reasonably necessary to (a) comply with the law or legal process; (b) enforce this Agreement; or (c) protect the rights or interests of BrownSense Africa Group, its affiliates or related parties. Notwithstanding anything to the contrary herein, BrownSense Africa Group may transfer, sell or assign such information to third parties as a result of a merger, consolidation or combination of BrownSense Africa Group with another entity.
- Advertiser hereby grants to BrownSense Africa Group a worldwide, limited, non-exclusive, non-transferable, royalty-free license to: (i) reproduce, distribute, transmit, display, perform, download, cache, store on its servers, and otherwise use Advertiser’s listings and submissions, and any portion thereof, including, without limitation, the trademarks, trade names, service marks and logos set forth therein, or as otherwise specified in writing by Advertiser (collectively the ‘Advertiser Marks’), for purposes of providing the services covered by this Agreement; and (ii) incorporate in BrownSense Africa Group’s sites links provided by Advertiser as part of its listings and submissions.
- Warranty Disclaimer
- NEITHER BROWNSENSE AFRICA GROUP NOR ITS SUPPLIERS OR VENDORS MAKE ANY WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE. BROWNSENSE AFRICA GROUP’S OBLIGATIONS UNDER THIS AGREEMENT ARE SUBJECT TO DELAYS CAUSED BY WAR, TERRORISM, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND BROWNSENSE AFRICA GROUP’S REASONABLE CONTROL. ADVERTISER ACKNOWLEDGES THAT BROWNSENSE AFRICA GROUP’S SITE IS OPERATED ON AN ‘AS IS’, ‘AS AVAILABLE’ BASIS, AND THAT NEITHER BROWNSENSE AFRICA GROUP NOR ITS SUPPLIERS OR VENDORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE PLACEMENT OF LISTINGS OR LINKS OR THE PERFORMANCE OR SECURITY OF ITS WEB SITE OR SERVICES.
- Limitation of Liability
- IN NO EVENT SHALL BROWNSENSE AFRICA GROUP OR ANY OF ITS SUPPLIERS, VENDORS OR AFFILIATES BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL BROWNSENSE AFRICA GROUP’S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO BROWNSENSE AFRICA GROUP BY ADVERTISER UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD PRIOR TO THE TIME THE APPLICABLE CLAIM ACCRUED.
- In no event shall Advertiser collect, or cause or permit the collection of, any Personal Information (as defined below) from users of BrownSense Africa Group site while such users are browsing or viewing BrownSense Africa Group sites, or place any file or code, including cookies, on the personal computers of users of BrownSense Africa Group sites while such users are browsing or viewing BrownSense Africa Group sites. BrownSense Africa Group privacy policies shall apply to users of BrownSense Africa Group’s Web Site while users are browsing or viewing BrownSense Africa Group’s site, and Advertiser shall comply with same. BrownSense Africa Group shall own all information relating to user access to BrownSense Africa Group’s site, including, but not limited to, all Personal Information, demographics and usage information gathered therefrom. ‘Personal Information’ includes an individual’s name, address, e-mail address, age, date of birth, credit card or other financial information, or any other contact or personal information about an individual or from which the personal information about an individual can be derived.
- Reservation of Rights
- Advertiser agrees that BrownSense Africa Group retains all right, title and interest in and to BrownSense Africa Group’s technology, services and other intellectual property rights. Advertiser agrees that it will not reproduce, distribute, alter, modify, copy, edit, format, create derivative works of or otherwise use any materials, content or technology provided by BrownSense Africa Group, except as explicitly provided herein or approved in advance in writing by BrownSense Africa Group
- BrownSense Africa Group reserves the right, in its sole discretion, to (i) remove Advertiser’s Listing and/or cancel Advertiser’s account for any reason or no reason; (ii) change the fees for Listing; (iii) change the procedures or rules for obtaining or maintaining a Listing; (iv) alter the content or other aspect of any Listing; and (v) discontinue Listing and/or the or website. Payment of Advertiser’s fee will not guarantee that Advertiser’s listing(s), link(s) and/or account will remain on the BrownSense Africa Group Directory or website if Advertiser or Advertiser’s listing is deemed to be in violation of any term or condition of this Agreement. Upon any termination or expiration of this Agreement, Advertiser shall promptly pay BrownSense Africa Group all moneys due hereunder.
- Receipt times of all submissions, notices and other correspondences and transactions via the BrownSense Africa Group site are measured based on receipt by BrownSense Africa Group servers. This Agreement: (a) shall be governed by and construed in accordance with, the laws of the South Africa, without giving effect to principles of conflicts of law; (b) constitutes the complete and entire expression of the agreement between the parties with respect to the subject matter hereof; and (c) shall supersede any and all other agreements, whether written or oral, between the parties, including, without limitation, any print, online and electronic promotional materials. All waivers hereunder by BrownSense Africa Group must be expressly made in writing. Should any provision of this contract be held to be void, invalid, or inoperative, such provision shall be modified to reflect the fullest enforceable intent of the parties, or if such modification is not possible, severed, and the remaining provisions of this contract shall not be affected and shall continue in full force and effect.
- Acknowledgement & Acceptance of Agreement