Note about important provisions
• Limitations of risk, legal responsibilities and liability. Sections 2A, 2B, 2C, 9, 10, 12, 13, 14 and 18 are important because they limit and exclude obligations, liabilities and legal responsibilities that we and other persons or entities may otherwise have to you. As a result of these clauses, your rights and remedies against us and these other persons and entities are limited and excluded. These sections also limit and exclude your right to recover or make claims for losses, damages, liability or harm that you or others may suffer.
• Assumptions of risk, legal responsibilities and liability by you. Sections 2C, 3, 4, 6, 8, 9, 10, 11, 12, 13, 14, and 18, are important because you take on risk, legal responsibilities and liability. As a result of these Sections, you may also be responsible for claims and other amounts. You will also be responsible for, and you accept, various risks, damages, harm, and injury which may be suffered by you and others for what is stated in these Sections. We will also be able to terminate our services to you as a result of these Sections.
• Acknowledgements of fact by you. Sections 2C and 16 are important because they each contain statements which are acknowledgements of fact by you. You will not be able to deny later that the statements are true. We may take action against you and may have claims against you as a result of these statements.
• Indemnities by you. Section 10 requires you to indemnify and hold harmless FRANKGATE and other persons or entities against claims, loss, damages, and harm that that may be suffered by FRANKGATE and other persons or entities as a result of the events set out in Section 10. You are also required to indemnify and hold harmless FRANKGATE and other persons and entities against claims for loss, damages, and harm that that may be made by any person or entity as a result of the events set out in Section 10. This places various risks, liabilities, obligations and legal responsibilities on you. You will be responsible and liable for the payment of the value of the claims, loss, damages, and harm that that may be suffered or claimed by FRANKGATE.
FrankGate has authorised Royal illumination Concepts (Pty) Ltd., a company incorporated and existing under the laws of the Republic of South Africa, registration number 2013/106217/07, having its principal place of business at 2 Jakaranda hof, 204 Burger street, Pretoria North, South Africa, 0182 (hereinafter together ” FRANKGATE “) and provides a collection of online resources which include classified advertisements and chat services (collectively, the “Service”) on the website www.frankgate.com and the mobile application of the platform (collectively, the “Website”).
You are solely responsible for reviewing these Terms from time to time. Should you object to any term or condition of these Terms, any guideline, or any subsequent changes thereto, you must immediately discontinue use of the Website and the Service. These Terms may be updated by FRANKGATE from time to time in accordance with Section 13.
FRANKGATE may provide a translation of the English version of the Terms into other languages. Any translation of the Terms into other languages is for your convenience only and the English version governs the terms of your relationship with FRANKGATE. Furthermore, if there are any inconsistencies between the English version of the Terms and any translation, the English version of the Terms shall prevail.
The term “affiliates” as referred to in Sections 10, 14 and 20 of these Terms means (i) any company which controls FRANKGATE from time to time; (ii) any company which is controlled or owned by FRANKGATE from time to time, (iii) any company commonly controlled or owned with FRANKGATE from time to time; or (iv) any entity forming part of FRANKGATE’s group of companies jointly offering the Service from time to time.
2. Description of Service and Content Policy
A. FRANKGATE is the next generation of online classifieds. We provide a platform where our users who comply with these Terms can offer, sell, and buy products and services listed on the Website. Although you may be able to conduct payment and other transactions through the Website, using third-party vendors, FRANKGATE is not in any way involved in such transactions. As a result, and as discussed in more detail in these Terms, FRANKGATE is not a party to such transactions, has no control over any element of such transactions, and, as far as the law allows, and subject to Section 19, shall have no liability towards any party in connection with such transactions. As far as the law allows and subject to Section 19, you use the Service and the Website at your sole risk and responsibility.
B. FRANKGATE is not responsible for any advertisements, comments, offerings, user postings, images, photographs, videos, sound clips, directory information, business listings/information, or any other materials made available through the Website or Service, or any messages between users, including without limitation, e-mails or chats or other means of electronic communication (“Content”), whether accessed or exchanged through the Website or other third party websites (“Third Party Websites”). By using the Website and the Service, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. As far as the law allows and subject to Section 19: (i) you are responsible for, must evaluate, and bear all risks associated with the use of any Content; (ii) you may not rely on any Content; and (iii) under no circumstances will FRANKGATE be liable in any way for the Content or for any loss or damage of any kind incurred as a result of the browsing, using or reading of any Content listed, e-mailed or otherwise made available via the Service. FRANKGATE is not obliged to pre-screen or approve any Content, but FRANKGATE has the right, in its sole and absolute discretion, to refuse, delete or move any Content that is or may be available through the Service, for violating these Terms where such violation is brought to FRANKGATE’s knowledge. Furthermore, the Website and Content available through the Website may contain links to Third Party Websites which are completely unrelated to FRANKGATE. If you link to Third Party Websites, you may be subject to those Third Party Websites’ terms and conditions and other policies. As far as the law allows, and subject to Section 19, FRANKGATE makes no representation or guarantee as to the accuracy or authenticity of the information contained in any such Third Party Websites, and your linking to any other websites is, as far as the law allows and subject to Section 19, completely at your own risk and FRANKGATE will not be liable in any way for your link to such other websites.
C. As far as the law allows, and subject to Section 19, you are solely responsible for your own Content posted on, transmitted through, or linked from the Service and the consequences of posting, transmitting, linking or publishing it. More specifically, you are solely responsible for all Content that you upload, email or otherwise make available via the Service. In connection with such Content posted on, transmitted through, or linked from the Service by you, you affirm, acknowledge, represent, warrant and undertake that: (i) you own or have and shall continue to, for such time the Content is available on the Website, have the necessary licenses, rights, consents, and permissions to use such Content on the Service and Website (including without limitation all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all such Content) and authorise FRANKGATE to use such Content to enable inclusion and use of the Content in the manner contemplated by the Service, the Website and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person or business in the Content to use the name or likeness of each and every such identifiable individual person or business to enable inclusion and use of the Content in the manner contemplated by the Service, the Website and these Terms.
For clarity, you retain all of your ownership rights in your Content; however, by submitting any Content on the Website, you hereby grant to FRANKGATE an irrevocable, non-cancellable, perpetual, worldwide, non-exclusive, royalty-free, sub-licensable, transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Website and FRANKGATE’s (and its successors’) business, including, without limitation, for the purpose of promoting and redistributing part or all of the Website and Content therein (and derivative works thereof) in any media formats and through any media channels now or hereafter known. These rights are required by FRANKGATE in order to host and display your Content.
You also hereby grant each user of the Website a non-exclusive license to access your Content through the Website, which licence excludes, amongst other things, scraping of Content and any other possible use for commercial purposes. The license you have granted to each user in terms of this Section you terminates once you or FRANKGATE remove or delete such Content from the Website.
By you posting Content to any public area of the Service, you agree to and do hereby grant to FRANKGATE all rights necessary to (i) prohibit or allow any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Service or Website by any party for any purpose which contravenes these Terms; and (ii) to enforce, on your behalf all rights you may have in the Content against any infringement by a third party. These rights are perpetual and cannot be revoked by you and will apply and can be exercised throughout the world.
FRANKGATE does not endorse any Content or any opinion, statement, recommendation, or advice expressed in the Content, and, as far as the law allows, and subject to Section 19, FRANKGATE expressly disclaims any and all liability in connection with Content. FRANKGATE does not permit copyright infringing activities and infringement of intellectual property rights on the Website, and FRANKGATE may, at its sole discretion, remove any infringing Content or which it may consider to be infringing. FRANKGATE reserves the right to remove any Content without prior notice. FRANKGATE may also terminate a user’s access to the Website, if they are determined to be a repeat infringer or found to be engaging in any act contrary to these Terms. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had a user submission removed from the Website more than twice. Further, at its sole discretion, FRANKGATE reserves the right to decide whether any Content is appropriate and complies with these Terms.
A. You agree not to post, email, host, display, upload, modify, publish, transmit, update or share any information on the Site, or otherwise make available Content:
1. that violates any law or regulation;
2. that is copyrighted or patented, protected by trade secret or trademark, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission or a license from their rightful owner to post the material and to grant FRANKGATE all of the license rights granted herein;
3. that infringes any of the foregoing intellectual property rights of any party, or is Content that you do not have a right to make available under any law, regulation, contractual or fiduciary relationship(s);
4. that is harmful, abusive, unlawful, threatening, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy or other rights, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or illegal gambling or harms or could harm minors in any way or otherwise unlawful in any manner whatsoever;
5. that harasses, degrades, intimidates or is hateful towards any individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
6. that violates any (local) equal employment laws, including but not limited to those prohibiting the stating, in any advertisement for employment, a preference or requirement based on race, color, religion, sex, national origin, age, or disability of the applicant;
7. that includes personal or identifying information about another person without that person’s explicit consent;
8. that impersonates any person or entity, including, but not limited to, an FRANKGATE employee, or falsely states or otherwise misrepresents an affiliation with a person or entity;
9. deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
10. that is false, deceptive, misleading, deceitful, misinformative, or constitutes “bait and switch” offer;
11. that constitutes or contains “pyramid schemes”, “jokes”, “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “bait marketing”, “negative option marketing”, “referral selling” or unsolicited advertisements of a commercial nature;
12. that constitutes or contains any form of advertising or solicitation if (1) posted in areas or categories of the Website which are not designated for such purposes; or (2) e-mailed to FRANKGATE users who have requested not to be contacted about other services, products or commercial interests;
13. that includes links to commercial services or Third Party Websites, except as specifically allowed by FRANKGATE;
14. that advertises any illegal services or the sale of any items the sale of which is prohibited or restricted by applicable law, including without limitation items the sale of which is prohibited or regulated by applicable law;
15. that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or any other computer resource;
16. that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Service, or that otherwise negatively affects other users’ ability to use the Service; or
17. that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Service.
B. Additionally, you agree not to:
1. contact anyone who has asked not to be contacted, or make unsolicited contact with anyone for any commercial purpose, specifically, contact any user to post advertisement on a third party Website or post any advertisement on behalf of such user; or to “stalk” or otherwise harass anyone;
2. make any libellous or defamatory comments or postings to or against anyone;
3. collect personal data about other users or entities for commercial or unlawful purposes;
4. use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Service, except for internet search engines (e.g,. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file;
5. post Content that is outside the local area or not relevant to the local area, repeatedly post the same or similar Content, or otherwise impose unreasonable or disproportionately large loads on our servers and other infrastructure;
6. post the same item or service in multiple classified categories or forums, or in multiple metropolitan areas;
7. attempt to gain unauthorized access to computer systems owned or controlled by FRANKGATE or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Website.
8. use any form of automated device or computer program (sometimes referred to as “flagging tools”) that enables the use of FRANKGATE’s “flagging system” or other community control systems without each flag being manually entered by a human that initiates the flag (an “automated flagging device”), or use any such flagging tool to remove posts of competitors, other third parties or to remove posts without a reasonable good faith belief that the post being flagged violates these Terms or any applicable law or regulation; or
9. use any automated device or software that enables the submission of automatic postings on FRANKGATE without human intervention or authorship (an “automated posting device”), including without limitation, the use of any such automated posting device in connection with bulk postings, or for automatic submission of postings at certain times or intervals.
4. Paid Postings
FRANKGATE may charge users a fee to post Content in some specific areas of the Service (“Paid Content”). The fee permits Paid Content to be posted in a designated area of the Website. Each user posting Paid Content to the Service is responsible for the Content and compliance with the Terms. Any such fees are non-refundable in the event that any Content is removed from the Service for violating these Terms. Please read our additional terms for Paid Content here Terms for Top Ads.
5. Posting Agents
As used herein, the term “Posting Agent” refers to a third-party agent, service or intermediary that offers to post Content to the Service on behalf of others. FRANKGATE prohibits the use of Posting Agents, directly or indirectly, without the express written permission of FRANKGATE. In addition, Posting Agents are not permitted to post Content on behalf of others, directly or indirectly, or otherwise access the Service in order to post Content on behalf of others, except with express written permission or license from FRANKGATE.
6. Access to the Service
FRANKGATE grants you a limited, revocable, non-transferable, non-exclusive licence to access and use the Service for personal use. This licence does not include any of the following: (a) access to or use of the Service by Posting Agents; or (b) any collection, aggregation, copying, duplication, display or derivative use of the Service; or (c) any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by FRANKGATE or as otherwise set forth in these Terms.
Notwithstanding the foregoing, general purpose internet search engines and non-commercial public archives that gather information for the sole purpose of displaying hyperlinks to the Service may engage in the activities set forth in (b), provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with our robots.txt file. For purposes of this exception, a “general purpose internet search engine” does not include a website or search engine or other service that specialises in classified listings, including any subset of classifieds listings such as housing, for sale, jobs, services, or personals, or which otherwise provides classified ad listing services.
The licence set forth in this Section 6 permits you to display individual postings on the Service on your website, or create a hyperlink thereto, so long as such use is for non-commercial and/or news reporting purposes only (e.g. for use in personal blogs or other personal online media). FRANKGATE may limit the amount of postings displayed on or linked to your website. Use of the Service beyond the scope of authorised access as set forth in these Terms immediately terminates any permission or license granted by FRANKGATE in these Terms. In order to collect, aggregate, copy, duplicate, display or make derivative use of the Service or any Content made available via the Service for other purposes (including commercial purposes) not stated in these Terms, you must first obtain an appropriate license from FRANKGATE.
7. Notification of Claims of Infringements
If you are an owner of intellectual property rights or an agent who is fully authorised to act on behalf of the owner of intellectual property rights and believe that any Content or other content infringes upon your intellectual property right or intellectual property right of the owner on whose behalf you are authorised to act, you may submit a notification to FRANKGATE together with a request to FRANKGATE to delete the relevant Content in good faith. The notification and the request must contain the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the intellectual property rights claimed to have been infringed, or, if multiple intellectual property rights at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the Content (by means of data or communication link, etc.) that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit FRANKGATE to locate the material;
4. Information reasonably sufficient to permit FRANKGATE to contact you, such as an address, telephone number, and an electronic mail address;
5. A signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property right-owner, its agent, or the law;
6. A signed statement that the intellectual property-owner hold FRANKGATE harmless from any claim of any third party in connection with the removing by FRANKGATE of the relevant content; and
7. A signed statement that the information in the notification is accurate and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications must be sent to email@example.com, and/or on the Grievance Officer’s mail id provided herein below.
8. Intellectual Property Rights
The materials on the Website, other than the user Content that you licensed under these Terms, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Materials”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to FRANKGATE, and are subject to copyright and other intellectual property rights under South African and foreign laws and international conventions. In connection with the Services, the Website may display certain intellectual property goods belonging to third parties. Use of these goods may be subject to license granted by third parties to FRANKGATE. You shall, in no event, reverse engineer, decompile, or disassemble such goods and nothing herein shall be construed to grant you any right in relation to such goods. Materials on the Website are provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. FRANKGATE reserves all rights not expressly granted herein to the Website and the Materials. You agree to not engage in the use, copying, or distribution of any of the Materials other than as expressly permitted herein, including any use, copying, or distribution of Materials of third parties obtained through the Website for any commercial purposes. . You agree not to circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Materials or enforce limitations on use of the Website or the Materials therein. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, other laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the Website, the Materials, or the collective work or compilation is expressly prohibited. Copying or reproducing the Website, the Materials, or any portion thereof for further reproduction or redistribution is expressly prohibited.
9. User Submissions
When using the Website, you will be exposed to Content from a variety of sources, and that, as far as the law allows, and subject to Section 19, FRANKGATE is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and you agree and assume all liability for your use. You further may be exposed to Content that is inaccurate, offensive, indecent, objectionable, defamatory or libellous and, as far as the law allows, and subject to Section 19, you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against FRANKGATE with respect thereto.
As far as the law allows, and subject to Section 19, you agree to defend, indemnify and hold harmless FRANKGATE, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, from and against any and all claims, damages, obligations, losses (whether direct, indirect or consequential), liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your violation of any provision of these Terms; (ii) your violation of any third party right, including without limitation any copyright, trade mark, trade secret or other property, or privacy right; or (iii) any claim that your Content caused damage to a third party. As far as the law allows, and subject to Section 19, this defence and indemnification obligation will, subject to any provisions contained in the Prescription Act, 68 of 1969, survive termination, modification or expiration of these Terms and your use of the Service and the Website.
11. No Spam Policy
You understand and agree that sending unsolicited email advertisements or other unsolicited communications to FRANKGATE email addresses or through FRANKGATE computer systems is expressly prohibited by these Terms. You agree that from time to time FRANKGATE may monitor email usage using human monitors or automated software to flag certain words associated with spam or scams in emails that are sent between one user to another in the FRANKGATE e-mail system. Any communication between yourself and any other user utilising the communication features available on the Service and the Website may be used only in accordance with the Terms. Any unauthorised use of FRANKGATE computer systems is a violation of these Terms and certain applicable laws. Such violations may subject the sender and his or her agents to civil claims and criminal penalties.
12. Dealings with Organizations and Individuals
As far as the law allows, and subject to Section 19, FRANKGATE shall not be liable for your interactions with any organisations and/or individuals on the Website or through the Service. This includes, but is not limited to, payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with any interaction you may have with other organizations and/or individuals. These dealings are solely between you and such organizations and/or individuals. As far as the law allows, and subject to Section 19, FRANKGATE shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or interactions. In the event that you have a dispute with one or more other users, as far as the law allows, and subject to Section 19, you hereby release FRANKGATE, its officers, employees, agents and successors from any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or our Service.
13. LIMITATION AND TERMINATION OF SERVICE AND AMENDMENTS TO THESE TERMS
FRANKGATE may establish limits from time to time concerning use of the Service, including among others, the maximum number of days that Content will be maintained or retained by the Service, the maximum number and size of postings, e-mail messages, or other Content that may be transmitted or stored by the Service, and the frequency with which you may access the Service or the Website.
FRANKGATE, in its sole and absolute discretion, has the right (but not the obligation) to delete or deactivate your account, block your e-mail or IP address, or otherwise terminate your access to or use of the Service (or any part thereof), to modify or discontinue the Service (or any part thereof), and to remove and discard any Content within the Service. As far as the law allows and subject to Section 19, FRANKGATE has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Website or the Service and shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service or for any termination of your access to the Website or the Service.
FRANKGATE may also from time to time amend these Terms. All changes to the Service or to these Terms will take effect from the time that FRANKGATE places them on the Website. You are responsible for reviewing and checking these Terms whenever you wish to use the Service or the Content.
Any changes to the Terms relating to paid services shall be notified to you at least 30 days (or such shorter period as may be required by law or as may be reasonable having regard to the nature and content of the changes) before the changes come into effect. We will do this by sending you an email, or through a pop-up notice when you access the Service or the Website.
14. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
AS FAR AS THE LAW ALLOWS, AND SUBJECT TO SECTION 19, YOU AGREE THAT USE OF THE WEBSITE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND THAT THE WEBSITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
AS FAR AS THE LAW ALLOWS AND SUBJECT TO SECTION 19, FRANKGATE, ITS AFFILIATES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND SERVICE AND YOUR USE THEREOF. FRANKGATE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY THIRD PARTY WEBSITES LINKED TO THE WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE OR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE SERVICE.
AS FAR AS THE LAW ALLOWS, AND SUBJECT TO SECTION 19, FRANKGATE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND FRANKGATE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND/OR OTHER USERS AND/OR THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
AS FAR AS THE LAW ALLOWS, AND SUBJECT TO SECTION 19, IN NO EVENT SHALL FRANKGATE, ITS AFFILIATES, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF FRANKGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE WEBSITE OR THE SERVICE, INCLUDING, WITHOUT LIMITATION (I) WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE WEBSITE OR THE SERVICE, (II) FROM INABILITY TO USE THE WEBSITE OR THE SERVICE, OR (III) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE WEBSITE OR THE SERVICE, (IV) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (V) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE AND SERVICE, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (VIII) ANY BUGS, MALWARE, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE SERVICE.
SUCH LIMITATION OF LIABILITY SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR THE SERVICE OR ANY LINKS ON THE WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION, OPINIONS OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR THE SERVICE OR ANY LINKS ON THE FRANKGATE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
AS FAR AS THE LAW ALLOWS, AND SUBJECT TO SECTION 19, YOU AGREE THAT FRANKGATE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FRANKGATE MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE IS APPROPRIATE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEBSITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
These Terms, and any rights, licenses and obligations granted under these Terms, may not be ceded, delegated, transferred or assigned by you. You agree that FRANKGATE may, at any time and without restrictions, transfer, cede, delegate or assign any or all of its rights and obligations under these Terms. Any cession, delegation, assignment or transfer by you shall be null and void.
16. ABILITY AND AUTHORITY TO ACCEPT THESE TERMS
This Website is intended only for adults and for entities and persons that are entitled to contract as per applicable laws. If you are using/accessing this Website as a representative of any person/entity, you warrant, represent and undertake that you are legally authorised to represent that person/entity. You warrant, represent and undertake that you are either at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
17. General Information
These Terms and the other policies posted by FRANKGATE on the Website constitute the complete and exclusive understanding and agreement between you and FRANKGATE and govern your use of the Service and the Website superseding all prior understandings, proposals, agreements, negotiations, and discussions between the parties, whether written or oral. These Terms and the relationship between you and FRANKGATE shall be governed by the laws of the Republic of South Africa without regard to its conflict of law principles. Any claim you may have against FRANKGATE must be submitted to the exclusive jurisdiction of the courts located within the Republic of South Africa. The failure of FRANKGATE to exercise or enforce any right, remedy or provision in or arising from these Terms shall not constitute a waiver of such right, remedy or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid (including, without limitation, because such provision is inconsistent with the laws of another jurisdiction) or inapplicable, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision. If any provision or provisions of these Terms is held to be invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of the Terms shall not in any way be affected or be impaired. These Terms shall inure to the benefit of and be binding upon each party’s successors.
18. VIOLATION OF TERMS AND LIQUIDATED DAMAGES / CONTACT US
Please report any violations of the Terms that you become aware of by contacting us using the link at the bottom of the Website’s homepage at www.frankgate.com. Any failure to act by FRANKGATE with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches by you or others. You understand and agree that, because damages are often difficult or impossible to quantify, if actual damages cannot be reasonably calculated then, as far as the law allows, and subject to Section 19, you will be liable to pay FRANKGATE the following as liquidated damages:
a. If you post a message that (1) impersonates any person or entity; (2) falsely states or otherwise misrepresents your affiliation with a person or entity; or (3) that includes personal or identifying information about another person without that person’s explicit consent, you agree that FRANKGATE in its sole discretion may disclose identifying information about you to the victim, and that should FRANKGATE bring a claim against you in court, that you will pay FRANKGATE one thousand Rand (R 1,000.00) for each such message.
b. If FRANKGATE establishes any limits on the frequency with which you may access the Service, or terminates your access to or use of the Service, you agree to pay FRANKGATE one hundred Rand (R 100.00) for (i) each message posted in excess of such limits or (ii) for each day on which you access FRANKGATE in excess of such limits, whichever is higher..
c. If you are a Posting Agent that uses the Service in violation of these Terms, in addition to any liquidated damages under Section 18(e) below you agree to pay FRANKGATE forty five Rand (R 45.00) for each and every item you post in violation of these Terms. A Posting Agent will also be deemed an agent of the party engaging the Posting Agent to access the Service, and such party (by engaging the Posting Agent in violation of these Terms) agrees to pay FRANKGATE an additional forty five Rand (R 45.00) for each item posted by the Posting Agent on behalf of such party in violation of these Terms.
d. If you use FRANKGATE e-mail addresses or computer systems to send unsolicited e-mail advertisements to FRANKGATE e-mail addresses or any other party, you agree to pay FRANKGATE forty five Rand (R 45.00) for each such e-mail.
e. If you post messages in violation of these Terms, other than as described above, you agree to pay FRANKGATE one hundred Rand (R 100.00) for each such message. Notwithstanding the foregoing, FRANKGATE may, in its sole and absolute discretion, issue a warning before assessing damages pursuant to this Section.
f. If you aggregate, copy, display, mirror, reproduce, or otherwise exploit for any purpose any Content (except for your own Content) in violation of these Terms without FRANKGATE’s express written permission, you agree to pay FRANKGATE a thousand Rand (R 1,000.00) for each day on which you engage in such conduct.
If none of the foregoing sections 18 (a) – (f) are applicable, you agree to pay FRANKGATE’s actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms, FRANKGATE retains the right to seek equitable remedies, including without limitation, specific performance of any term contained in these Terms, or a preliminary or permanent interdict against the breach or threatened breach of any such term or in aid of the exercise of any power granted in these Terms, or any combination thereof. To the extent that any provision of these terms is considered to be, or qualifies as, a penalty stipulation in terms of the Conventional Penalties Act 15 of 1962: these Terms shall not be construed or interpreted in such a way as entitling FRANKGATE to recover both damages and the penalty; FRANKGATE shall be entitled to recover damages in lieu of the relevant penalty; FRANKGATE shall not be obliged to accept defective or delayed performance by you; and you agree, having taken account of the prejudice that will be suffered by FRANKGATE, that the penalty stipulation is equitable in the circumstances. Please report any violations of the Terms that you become aware of by contacting us to firstname.lastname@example.org.
To the extent that any provision of these Terms is considered to be, or qualifies as, a penalty stipulation in terms of the Conventional Penalties Act 15 of 1962:
• (i) these Terms shall not be construed or interpreted in such a way as entitling FRANKGATE to recover both damages and the penalty;
• (ii) FRANKGATE shall be entitled to recover damages in lieu of the relevant penalty;
• (iii) FRANKGATE shall not be obliged to accept defective or delayed performance by you; and
• (iv) you agree, having taken account of the prejudice that will be suffered by FRANKGATE, that the penalty stipulation is equitable in the circumstances.
Please report any violations of the Terms that you become aware of by contacting us to email@example.com.
19. CONSUMER PROTECTION ACT AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT
a. If these Terms and/or the Website and/or the Services is regulated by the Consumer Protection Act, 68 of 2008 (“CPA”) or the Electronic Communications and Transactions Act, 25 of 2002 (“ECTA”), it is not intended that any provision of these Terms contravenes any provision of the CPA or ECTA. Therefore all provisions of these Terms must be treated as being qualified, to the extent necessary, to ensure that the provisions of the CPA and ECTA are complied with.
b. Nothing in these Terms:
(i) limits or exempts FRANKGATE or any other person from any responsibility or liability (including, without limitation, for any loss directly or indirectly attributable to the gross negligence or wilful default of FRANKGATE or any other person, or any person acting for or controlled by FRANKGATE or any other person) to the extent that the law does not allow this, or
(ii) requires you to assume risk or responsibility or liability (including, without limitation, for the kind of loss referred to in (i) above) to the extent the law does not allow this; or
(iii) excludes any warranties implied into these Terms by law, to the extent that the law does not allow them to be excluded.