Terms and Conditions

Terms and Conditions for SelfSeller Products and Services

These are the Terms and Conditions on which SelfSeller, a division of AWR Attorneys West & Rossouw,  permits you to list on the website located at www.SelfSeller.co.za, properties for sale or lease;

1.  Your use of the Service

a.   Your access to and use of the Service is governed by an Agreement, which includes:

• these Terms and Conditions;

• the Seller enrolment form;

• the Mandate form (MF);

• the SelfSeller Privacy Policy and

• any other document provided to you by SelfSeller expressed to form part of the Agreement

between you and SelfSeller.

b. Your use of the Service signifies your agreement to abide by the terms and conditions set out in each of the above listed documents.

c. SelfSeller may, in its absolute discretion, determine not to accept any application for your use of the Service which is submitted by you.

2.  Your duties and obligations

a.    In using the Service, you must:

i.   ensure that all information, illustrations, photographs and other material you upload or submit to the Website in your use of the Service (Submitted Materials) are provided in the form required by SelfSeller from time to time;

ii only submit material to SelfSeller by a method pre-approved by SelfSeller (such as via an authorised XML provider);

iii ensure that Submitted Materials are not defamatory, offensive, misleading or capable of causing SelfSeller exposure to any legal liability;

iv. comply with any relevant SelfSeller advertising policy;

v.  provide SelfSeller with such assistance as is reasonably necessary to provide you with the Service;

vi.  notify SelfSeller in writing if you change any information required by SelfSeller to provide the Service;

b. You must not:

i. use the Service for any purpose other than the uses intended by SelfSeller;

ii. do anything which impairs the lawful use of the Service by any person;

iii. introduce or use any device, software or routine that interferes or attempts to interfere with the operation of the Service including but not limited to any device intended to copy any information published by SelfSeller including any listing; or

iv. create or otherwise produce either directly or indirectly or wholly or partly any database which is substantially comprised of any information published by SelfSeller.

c.    You warrant to SelfSeller that:

i. you are the owner or you are authorised by the owner of the property listed by you to list the property for sale or lease on the Website;

ii. all information provided by you to SelfSeller, whether for the purposes of publication or not, is accurate and complies with all relevant laws; does not infringe any third parties’ intellectual property rights; is not illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years; is not misleading or deceptive or likely to mislead or deceive; or not comprised of anything which may adversely reflect in the Website or any website on which the information is published; and

iii. you will comply with all applicable laws in relation to your use of the Service, including all laws in relation to handling and use of personal information.

d. You acknowledge that it is your sole responsibility to ensure that SelfSeller has your correct contact details, including but not limited to street and / or postal address and email address for delivery of leads, notices, notifications and email enquiries from the Website.

3. Specific terms relating to listings

a. In using the Service, you must:

i. only list real property for sale or lease – the listing of other items (for example, cars or boats) is prohibited

ii. only list properties which are presently available for sale or lease and of which you are the owner or you have been authorised to market for sale or lease in accordance with schedule 1 hereto.

iii. not include any promotional web addresses

iv. ensure that any photographs or illustrations submitted in respect of a property, accurately represent the property in question and are free from borders, watermarks (unless otherwise allowed as an exception by SelfSeller), attorney location or contact details;

v. accurately indicate the location of the property being listed – SelfSeller reserves the right not to publish an advertisement which does not include accurate details of the property location;

vi. immediately remove any properties which are no longer for sale or lease (for example properties which have been sold, leased or withdrawn from the market);

vii. only list each property for sale or lease once on the Service;

viii. provide to SelfSeller in respect of each property at least the minimum required fields for publication.

b. SelfSeller may choose not to publish, or may remove once published, any listings which do not comply with the above requirements (or where you have not complied with any of the above requirements) .

c. SelfSeller may, from time to time, set guidelines for how property listings will be returned in searches on the Websites.

4.  Specific terms relating to leads

You acknowledge and agree that:

SelfSeller provides no warranties in relation to the number of leads (meaning enquiries for further information submitted by users of the Website) you may receive; and while SelfSeller will use its best endeavours to provide accurate leads, it has no control over the identity or bona fides of any enquirer.

b. You must:

i. provide a valid email address in respect of each listing to which leads should be sent by SelfSeller;

ii. ensure that all leads are handled by you in a professional and expeditious manner;

c. You acknowledge that:

i. SelfSeller will use its best endeavours to deliver all leads to the nominated email address, or where this is not available, an alternate email address;

ii. SelfSeller will not be liable for any delay or failure to deliver leads to you which is caused by any technical or technological fault or failure; and

in order to accurately record the number of leads delivered for each listing, it is necessary for SelfSeller to have absolute control over the contact details published by you, and you will not attempt to include any unauthorized contact details in any listing.

5.  Licence to use Submitted Materials and monitoring of content

a. By uploading or otherwise submitting any materials to the Website or in your use of the Service, you automatically grant (or warrant that the owner of such material expressly grants) to SelfSeller a world-wide, perpetual, royalty-free, irrevocable, transferable and sub-licensable licence to use, reproduce, adapt, modify, communicate, display, perform, store and distribute those Submitted Materials for the purposes of (i) performing its obligations pursuant to this Agreement; (ii) publishing the Submitted Materials and any information included in a listing on the Website (including any websites owned or operated by SelfSeller, or on any website owned or operated by a third party with whom SelfSeller has an agreement to provide, share or distribute listings, information or materials and any related services including search engines, or any other online or print based media; (iii) creating statistics, databases and  compilations for use by SelfSeller and third parties. Provided that SelfSeller will not disclose your information in any matter that identifies your information as yours; and (iv) sub-licensing Subscriber Information to a third party with whom SelfSeller has a license agreement limited to the use of Subscriber Information as part of a real estate related application service. Such license shall apply with respect to any form, media or technology now known or later developed.

b.   Without limiting the foregoing, you agree that Submitted Materials may be used by SelfSeller for purposes including (without limitation) marketing, research and development of goods and services.

c.    You warrant that:

i. SelfSeller’s use of any Submitted Material contributed by you will not infringe the intellectual property rights (including the moral rights) of any third party or breach any obligations of confidence or any other law or regulation relating to the Submitted Materials; and

ii. in relation to moral rights, you have obtained all necessary consents which will allow SelfSeller to perform all or any acts or omissions which, but for the consent, would be considered an infringement of the author’s moral rights under the Copyright Act.

d. SelfSeller reserves the right to amend, edit, block or immediately remove Submitted Material without notice to you that it considers is or may be, in its sole discretion:

i. abusive, defamatory or obscene;

ii. fraudulent, deceptive or misleading;

in violation of copyright, trade mark or other intellectual property rights of another person;

iv. in violation of any law or regulation;

in breach of these Terms and Conditions or any of the other documents listed in clause 1a of these Terms and Conditions; or offensive or otherwise unacceptable to SelfSeller.

e. Notwithstanding the above, SelfSeller is under no obligation to monitor Submitted Material to ensure it complies with any law, guideline or requirements or for general suitability for publication.

f. While SelfSeller will use its best endeavour to store your information in its data base, it provides no warranty as to such storage and will not, subject to clause 9, be liable in the event that there is a corruption, deletion or failure to store any information which relates to you including any listing or any inability to access such information. Accordingly, SelfSeller strongly recommends that you keep a permanent record of all information which relates to you.

6.  Access and delivery

a. Whilst SelfSeller uses its best endeavours to provide the Service to you, SelfSeller does not represent or warrant that:

i. you or users of the Website will have continuous access to the Website;

ii. the Service will be complete or free from all viruses, defects or errors and you acknowledge that the existence of any defects or errors does not constitute a breach of any agreement between you and SelfSeller; or

iii. any information supplied or accessed using the Service is correct and complete or sufficient for your intended use.

b. SelfSeller will not be liable in the event that the Website is unavailable for any reason, including but not limited to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunication supplies.

c. SelfSeller does not guarantee the delivery or security of communications delivered over the Internet (including emails).

7.  Additional terms in relation to SelfSeller’ rights

SelfSeller retains sole editorial control (including: placement) in relation to all listings published on the Website.

SelfSeller will not to the full extent permitted by law, be liable for error, misplacement, amendment, omission or failure to publish any listing.

SelfSeller reserves the right to change the functionality of the Website at any time without prior written notice.

SelfSeller may from time to time modify, enhance or upgrade any of the Services. For the avoidance of doubt, SelfSeller may cease to provide the Service (or part thereof) on 14 days notice or such shorter period as is reasonably required by SelfSeller.

The Service does not include:  back up services; customisation; training; attendance at your premises; or correction of errors or defects, including those caused by:

faulty equipment or hardware provided by you;

any negligent act or omission by you; or

any event beyond SelfSeller control.

8.  Specific terms relating to the use of the Internet

SelfSeller is not responsible for the Internet or any telecommunication infrastructures required to access and use the Service.

b. SelfSeller does not and cannot provide any warranty that the Internet, any website or any telecommunications infrastructure (including  but  not limited  to email and SMS) will be continuously accessible.  For the avoidance of doubt, subject to clause 9, SelfSeller will not be liable in the event that:

i. the Internet, any website or any telecommunications infrastructure (including   email and/or SMS) is unavailable (in whole or part) for any reason whatsoever; or

ii. any message (including  any email and/or SMS ) or file is transmitted by or to you using the Service and is not received in a timely manner or at all.

9.  SelfSeller’s liability to you

Other than as set out in this clause 9, and to the full extent permitted by law, all guarantees and implied and express warranties in respect of any goods or services provided by SelfSeller are HEREBY EXCLUDED,

b. To the full extent permitted by law, SelfSeller will only be liable to you:

i. pursuant to any guarantee, right or contractual term that arises, is created or is implied by operation of law and that cannot be excluded PROVIDED THAT, to the full extent permitted by law, any such liability of SelfSeller is limited, at SelfSeller’ option, to (i) replacing or repairing the relevant goods, (ii) supplying goods equivalent to the relevant goods, (iii) supplying the relevant services again or (iv) paying the cost of such replacement, repairs or supply; or

ii. Subject always to clause 9(d), if your claim arises from or in connection with any deliberate breach of this Agreement or fraud by SelfSeller.

c. Subject to clause 9b, and except to the extent that liability cannot be excluded, SelfSeller will not be liable to you for claims arising out of or in connection with this Agreement whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute.

d. To the full extent permitted by law, SelfSeller will not be liable to you for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.

e. For the purposes of this clause and clause 10, the term SelfSeller will mean SelfSeller, its related bodies corporateand each other, their officers, employees, contractors and  attorneys, whether individually or collectively.

f. This clause will survive the termination of this Agreement.

10.  You indemnify SelfSeller

a. You release and indemnify SelfSeller, against all actions, claims and demands (including the cost of defending or setting any actions, claims and demands) arising out of:

i.   a breach of this Agreement  by you;  or

ii.  any deliberate, unlawful or negligent act or omission by you.

This clause will survive the termination of this Agreement.

11.  Suspension of the Service

SelfSeller may suspend or restrict access to the Service on such terms as SelfSeller determines, without notice if any event listed in clause 12a occurs or during the notice period referred to in 12 (a) (ii).

12.  Termination of this agreement

a. SelfSeller may terminate this Agreement by immediate written notice to you if you:

i. breach any provision of this Agreement that is not capable of remedy;

ii. breach any provision of this Agreement that is capable of remedy and you fail to remedy such breach with 14 days’ written notice;

iii. fail to notify SelfSeller that a change of control has occurred or you fail to undertake any actions required by SelfSeller following a change of control;

iv. assign or purport to assign this Agreement; or

v. are or become insolvent.

b.  Termination of this Agreement will not prejudice any accrued rights or liabilities of a party.

13.  Intellectual property rights

a.  All intellectual property rights in the Service and all information generated, compiled, arranged, stored or otherwise developed by SelfSeller, including any listing, are vested in SelfSeller and there is no assignment of SelfSeller’ intellectual property rights to you.

14. Amendments to Terms and Conditions

a. SelfSeller may amend these Terms and Conditions at any time upon 30 days notice in writing to you

b. Your continued use of the Service signifies your agreement to be bound by the amended Terms and Conditions.

15.  Fees

a. Fees payable by you to SelfSeller and the manner of payment are set out in the attorney mandate form. (MF)

b. If you fail to pay any fees by the required time, SelfSeller may require that you pay:

(a) interest to SelfSeller on the daily amount outstanding, at the prevailing mora interest rate of 9% from time such fee becomes due and

(b) any expense (including legal fees calculated at the rate as between attorney and his own client) incurred by SelfSeller in recovering the outstanding fees from you.

c. If VAT is imposed on any taxable supply by a party in connection with these Terms and Conditions or any agreement including but not limited to AMF and the consideration payable is not expressed to be inclusive of VAT, then, subject to a valid tax invoice being issued, the Party liable to pay for the taxable supply must pay on demand an additional amount calculated by multiplying the value of the VAT exclusive consideration (without deduction or set off) by the current VAT rate.

16.  Other legal matters

a. Force Majeure: Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to force majeure.  For the purposes of this clause “Force Majeure” means an event or circumstance beyond the reasonable control of a party (without fault or negligence of that party) including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and natural disasters; acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; strikes and industrial disputes; Internet outage, power, water, telecommunications or other utility shortage; or valid laws, rules, regulations, orders or decrees of the SA Government or of any local government or of any statutory authority.  If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations affected by the Force Majeure will be suspended (other than any obligation to pay any fees due).  If the delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Agreement on providing a notice in writing to the other Party.

b. Further Acts: Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by another party to do so.

c. Assignment: You must not assign, transfer, subcontract or otherwise dispose of, in whole or in part your rights or obligations under this Agreement, without the prior written consent of SelfSeller. SelfSeller may at any time assign the whole or any part of this Agreement without your consent.

d. Subcontractors: SelfSeller may subcontract the performance of this Agreement or any part thereof.

e. Provisions Severable: If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from this Agreement.

f. Waiver:  Failure by any party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise. A waiver must be in writing signed by the party giving the waiver.

g. Notice: Where in this Agreement SelfSeller is required to give notice in writing, SelfSeller may give the same by:

(a) posting the notice on the SelfSeller Website;

(b) emailing the notice to the  email address last provided to SelfSeller by you; or

(c) posting the notice to the postal or street address last provided to SelfSeller by you.

h.  Governing Law: This Agreement is governed by and construed in accordance with the laws of South Africa and the parties irrevocably submit to the exclusive jurisdiction of the Cape High Court or any Magistrate’s Court with competent jurisdiction, at the sole discretion of SelfSeller. .

Schedule 1

Required fields for listings appearing on the Websites

The following information is the minimum information which you must submit to SelfSeller in respect of each listing for publication on the Websites:

1.    Street address

2.    Property type (eg house, apartment)

3.    Title

4.    Description

5.    Number of bedrooms (except for vacant land)

6.    Number of bathrooms (except for vacant land)

7.    Number of carspaces (except for vacant land)

8.    Images (minimum of 5)

9.    Display price (may be numeric value or text, eg POA)

10.  Status (eg current, sold, leased, withdrawn)

Where you do not provide or authorise SelfSeller to publish all of the above information set out above in a listing, SelfSeller may not publish the listing on the Websites.

Schedule 2

Guidelines for search results on the Websites

When a listing display price is provided, SelfSeller will use the numeric value within the display price to determine the search results. When a price range is provided the lower numeric value is used in  determining the search results except within the investment search where the higher numeric value is used in determining the search results.

If the listing has no numeric display price for example POA or Auction etc, the price search values that are provided within the XML feed or within the SelfSeller Dashboard are used in determining the  search results.

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