E-commerce and Content Service Agreement
- 1.1 In this Agreement, the following words and phrases shall have the following meanings:
Advertising Rightsthe advertising, promotional, sponsorship or similar rights sold or licensed with respect to pages in or accessible through the Service which contain Content;
Affiliateany Holding Company or Subsidiary Company of Pathfinda and/or Supplier (as the case may be) and any Subsidiary Company of any such Holding Company as the context so requires;
Alternative Mediaany digital service, product, platform or alternative website, other than the Service, which is developed or provided by, or in conjunction with Pathfinda;
Contentwebsite material which shall be in the form of written as well as pictorial material for the web page/s, or such other material as may be agreed between the parties from time to time;
Cookieselements of data stored on a user's computer system which permit an Internet server to provide personalised information or services;
E-commerce Placementspromotional placements taking the form of buttons or links from online retailers and service providers for which a placement fee and/or royalty or share of revenue on customer sales is received;
Effective Datethe date on which the Customer’s Listing/s is/are Published;
Exclusive Promotionpromotions to be created by the Customer exclusively for end users accessing the Content through the Service;
Free Category/Categoriesrefers to Categories that are not monetised and where payment is not required to Publish the Listing;
Subsidiary CompanyHolding Company or Subsidiary Company have the meanings ascribed to them by Section 1 of the Companies Act 71 of 2008;
Intellectual Property Rightsall copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, database rights, trade names, design rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
Listing/spages consisting of the Customer’s business information on Pathfinda’s website, composed of the Customer’s content such as: text descriptions/editorials, contact details, photos etc;
NightsBridgea service that enables accommodation establishments to take real-time, online bookings through partner websites that they opt-in to list with on a commission structure negotiated with the partner website;
Paid Category/Categoriesrefers to Categories where payment is required, or in the case of accommodation Categories, where the NightsBridge option is chosen;
Payment Termthe period of time that a Paid Listing is Published for;
Published/Unpublishedwhen a Listing is effectively made live for the public to see on Pathfinda it is said to be Published. If the Listing is not publically viewable then it is said to be Unpublished;
Renewal Termthe period of time within the Payment Term that a Paid Listing may be renewed;
Servicethe website owned and operated by Pathfinda and which is located at https://pathfinda.com or any subsequent URL which may replace it but, for the avoidance of doubt, excluding any website or co-branded website, with any third party or any other website owned or operated by Pathfinda or its Affiliates;
StripeStripe is the best way to accept payments online and in mobile apps. Stripe handles billions of dollars every year for forward-thinking businesses around the world;
Traffic Datadata relating to a Customer's use of the Content, whether aggregated or otherwise, including without limitation details of page impressions, click-throughs, use of links, conversion rates of visitors to customers or such other information as Pathfinda may reasonably require;
- 1.2 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
- 1.3 Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa.
- 1.4 References to the whole shall include the part and vice versa.
The headings to the Clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof.
2. Supply of Content by the Customer
- 2.1 The Customer shall supply the Content to Pathfinda in accordance with the formats and presentation requested or accepted by Pathfinda.
- 2.2 The Content:
- 2.2.1 Can be uploaded to the Customer’s Listing/s by the Customer, using the provisioned access thereto by Pathfinda, or added by Pathfinda into the Customer’s Listing/s ; but,
- 2.2.2 The Content should not be Published until:
- 18.104.22.168 The Customer ensures that it conforms fully to the Agreement.
- 22.214.171.124 In the case of Paid Categories: The agreed upon sum is paid and credited into the account of Pathfinda’s payment gateway; or in the case of an accommodation establishment, if the Customer has been listed by way of NightsBridge.
- 2.3 Pathfinda reserves the right to exclude the Content from the Service until it is satisfied that the Content meets the requirements of Clause 2.2 and is of a sufficiently high quality to be displayed within the Service.
- 2.4 The Customer acknowledges that Pathfinda may operate navigation page(s) on entry to the Content for the purposes of website navigation which, for the avoidance of doubt, shall not be a part of the Content.
- 2.5 The Content shall be delivered free of all advertising, third party links and third party E-commerce Placements.
- 2.6 During the term of this Agreement, the Customer will at the Customer's cost, provide such ongoing assistance to Pathfinda in respect of administrative and service-oriented issues relating to the provision and transmission of the Content for presentation of the Service, as Pathfinda may reasonably request.
- 2.7 In the event that Pathfinda develops Alternative Media, where practicable, the Customer hereby agrees to enter into negotiations with Pathfinda in good faith to discuss the provision of Content in respect of such Alternative Media if Pathfinda should so require.
- 2.8 Pathfinda reserves the right to redesign the Service or any part of it including but not limited to the addition and removal of channels and sections of the Service. In the event that Pathfinda does intend to redesign the Service, the Customer shall be informed of how it will affect the Customer as soon as reasonably practicable. Such redesign of the Content will be to achieve the design goals of the Service. Pathfinda will use reasonable endeavours to procure that the position and prominence of the Customer’s web page on the Internet will be maintained following such redesign but does not guarantee to do so. In the event that Pathfinda is unable to maintain the Customer’s position and prominence following the redesign, the Customer shall have the right to request to terminate the Service forthwith, by written notice to [email protected].
- 2.9 Pathfinda is entitled to use and process the Customer Data and Traffic Data for whatever purposes Pathfinda may in its sole discretion decide, provided that the Customer Data and Traffic Data shall not be passed to competitors of the Customer or be used by Pathfinda to compete directly with the Customer.
- 126.96.36.199 Pathfinda will never sell any Customer Data to third parties.
3. Sale of Advertising Rights
- 3.1 Pathfinda shall not be entitled to sell Advertising Rights on web pages that contain Content of the Customer.
- 3.2 Pathfinda shall be entitled to sell Advertising Rights on any other web pages that do not contain Content of the Customer, and or in any other part of the Pathfinda website and shall retain 100% of the advertising revenue generated therefrom.
- 4.1 To the extent that any e-commerce is to be provided as part of the Content and that revenues relating to such e-commerce are to be shared between Pathfinda and the Customer, separate provisions shall apply, such provisions shall be set out as an addendum to this Agreement.
- 4.2 All Traffic Data shall be owned by Pathfinda and may be provided by Pathfinda to the Customer periodically as determined by Pathfinda. Certain Traffic Data may be made accessible to the Customer at the discretion of Pathfinda within the workings of the Service for continual access by the Customer.
- 5.1 Each party to this Agreement represents and warrants to the other party that:
- 5.1.1 it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder;
- 5.1.2 it fully complies with, and shall continue to fully comply with, all the provisions of the Electronic Communications and Transactions Act 25 of 2002 and any similar or subsequent legislation insofar as they apply to it;
- 5.1.3 the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and
- 5.1.4 when executed and delivered by such party, this Agreement will constitute legal, valid and binding obligations of such party, enforceable against such party in accordance with its terms.
- 5.2 The Customer represents and warrants to Pathfinda that:
- 5.2.1 it has sufficient rights in the Content to grant to Pathfinda the right to use and disseminate the Content in accordance with the terms of this Agreement;
- 5.2.2 it absolves Pathfinda from any legal claims of whatsoever nature resulting from instances where this should arise from any Content published by Pathfinda on the web page/s published by Pathfinda representing/displaying the Customer Content.
- 5.2.3 it absolves Pathfinda forthwith on demand against any liability, damage, expense, claim or cost suffered by Pathfinda as a result of any breach by the Customer of the warranties in 5.2.1 or any legal claims of whatsoever nature resulting from Pathfinda’s presence, as a link, to or from the Customers existing other web pages, outside of those presented on the Pathfinda website, where links have been created, at all times, even if the currency of this Agreement has expired or is no longer in force, for any reason.
6. Customer's Responsibility for the Content
- 6.1 The Customer will ensure that the Content in general and any Exclusive Promotion offered with the Content complies with all applicable law and regulation including, but not limited to, any regulation or code of practice relating to advertising and in particular, where such Exclusive Promotion contains any element of competition, lottery, betting, chance or gaming or the like, complies with laws and regulations applicable thereto.
- 6.2 The Customer will ensure that the Content does not infringe any Intellectual Property Rights of a third party and that it does not libel, defame, cause injury to, invade the privacy of or otherwise violate any other rights of any person.
- 6.3 If at any time during the term of this Agreement any part of the Content is in breach of any applicable law or regulation or infringes the Intellectual Property Rights of any third party then the Customer shall:
- 6.3.1 procure the right to use such Content; or
- 6.3.2 use its reasonable endeavours to provide alternative Content which will not be in breach of any applicable law or regulation or infringe the Intellectual Property Rights of any third party; or
- 6.3.3 remove the offending part of the Content and replace it so far as it is reasonably practicable with equivalent Content.
- 6.4 The Customer will fully indemnify and keep fully indemnified Pathfinda (and its employees, directors and agents) forthwith on demand against any liability, damage, expense, claim or cost suffered by Pathfinda as a result of any breach by the Customer of the warranties set out in Clause 5.2 and the obligations contained in Clauses 6.1 to 6.3.
- 6.5 The Customer will defend or settle at the Customer’s expense any action or other proceedings brought against Pathfinda arising from any breach by the Customer of the warranties contained in Clause 5.2 or the obligations contained in Clauses 6.1 to 6.3. Pathfinda shall notify the Customer promptly of any such claim and shall permit the Customer to assume and control the defence of such action with Counsel chosen by the Customer (who shall be reasonably acceptable to Pathfinda) and shall not enter into any settlement or compromise of any such claim without the Customer’s prior written consent. The Customer shall pay any and all proper costs, damages and expenses (including but not limited to reasonable legal fees and costs) awarded against or incurred by Pathfinda in any such action or proceedings.
7. Term and Termination
- 7.1 This Agreement shall take effect from the Effective Date and shall continue thereafter unless and until:
- 7.1.1 The Customer gives written notice of termination, even prior to the expiry of the Payment Term; or
- 7.1.2 terminated by expiry of the Payment Term; or
- 7.1.3 terminated in accordance with Clauses 6.1, 6.2, 9.2, 9.3 or 17.
- 7.2 Either party shall be entitled to terminate this Agreement forthwith on written notice in the event that the other:
- 7.2.1 commits a material breach of the terms of this Agreement and having received from the party not in breach written notice of such breach stating the intention to terminate the Agreement if not remedied, fails to remedy the breach within 30 days; and/or
- 7.2.2 shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due, or commits an act which, if committed by an individual, would constitute an act of insolvency within the meaning of Section 8 of the Insolvency Act, 24 of 1936, or any distress, execution or other process is levied upon any of the assets of the other party.
- 7.3 Pathfinda shall be entitled to terminate this Agreement with immediate affect and without further notice in the event that any act or omission of the Customer, at Pathfinda's sole discretion, results or is likely to result in any material damage to Pathfinda or any of its Affiliates, or causes or is likely to cause material damage to any brands of Pathfinda or any of its Affiliates or brings Pathfinda or any of its Affiliates into disrepute, whether in relation to the Content or otherwise.
8. Consequences of Termination
- 8.1 In the event of the termination of this Agreement:
- 8.1.1 Pathfinda agrees to cease using or distributing the Content.
- 8.1.2 each party agrees to provide the other with all outstanding payments (if any) due to it (unless the Agreement has been terminated by Pathfinda in accordance with Clauses 6.2, 9.2 or 9.3); and
- 8.1.3 for the avoidance of doubt, the webpage provided for the Customer as hosted by Pathfinda for the benefit of the Customer in terms of this Agreement, shall become Unpublished and consequently no longer be publicly accessible on Pathfinda’s Website.
- 8.2 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- 8.3 Clauses 1, 3.1, 3.2, 10, 11, 12 and 20 shall survive expiry or termination of this Agreement.
9. Limitations of Liability
- 9.1 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
- 9.2 The liability of the Customer shall not be limited in respect of a claim by Pathfinda relating to a breach by the Customer of Clause 6.2.
- 9.3 Subject to Clauses 9.1 and 9.2, the liability of either party in contract, delict (excluding defamation), negligence, pre-contract or other representations or otherwise arising out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement, and every applicable part of it shall be limited in aggregate to the amount received by Pathfinda from the Customer in the 12 months preceding the first date on which such liability arose.
- 9.4 Neither party shall be liable in contract, delict (including, without limitation, negligence), pre-contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with this Agreement for:
- 9.4.1 any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); and
- 9.4.2 subject to Clause 6.4:
- 188.8.131.52 any loss of goodwill or reputation; or
- 184.108.40.206 any special, indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, suffered or incurred by that party arising out of or in connection with the provisions of any matter under this Agreement.
- 9.5 Except as set out in this Agreement, each party excludes all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Content and the Service, whether imposed by statute or by operation of law or otherwise, that are not expressly stated herein, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.
- 9.6 Each provision of this Clause 9 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiry or termination of this Agreement.
- 10.1 During the term of this Agreement and for a period of 3 years thereafter, both parties agree with each other to keep all information that they obtain about the other concerning the business, finances, technology and affairs of the other, and in particular but not limited to the Content and the Service and regardless of its nature (
Confidential Information), strictly confidential.
- 10.2 The provisions of this Clause 10 shall cease to apply to:
- 10.2.1 information that has come into the public domain other than by breach of this Clause or any other duty of confidence; and/or
- 10.2.2 information that is obtained from a third party without breach of this Clause or any other duty of confidence; and/or
- 10.2.3 information disclosed to the professional advisers of either party, provided that such advisers are under an obligation of confidentiality no less onerous than that contained in this Clause 10; and/or
- 10.2.4 information that is known by either party, in connection with the other party, and which has been disclosed to either party by a third party, other than Customer or Pathfinda or a contractor of either of them and not in breach of any duty of confidence; and/or
- 10.2.5 information that is trivial or obvious; and/or
- 10.2.6 information that is required to be disclosed by a government body or court of competent jurisdiction or by operation of law.
Except for announcements or other information releases required by a regulatory body of competent authority, or required by law, neither party shall issue by any medium any public announcement, whether written or otherwise, in relation to the subject matter of this Agreement (save in respect of any advertisements and/or publicity for the Content by Pathfinda) except with the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
12. Rights of Third Parties
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
- 13.1 Any notices required to be given under this Agreement shall be in writing and shall be deemed to have been duly served if hand delivered or sent by facsimile or email (with the original to be forwarded by first class post) or by first class registered post or recorded delivery post correctly addressed in the case of Customer to the party accepting this Agreement, or the duly authorised nominee and in the case of Pathfinda to the Director at the addresses specified in this Agreement or at such other address as either party may designate from time to time in accordance with this Clause 13.
- 13.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery).
- 13.3 A correctly addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
- 13.4 A notice sent by fax or email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
Neither party shall be entitled to assign the benefit and/or burden of this Agreement in whole or in part to any party, save that either party shall be entitled to assign the benefit and/or the burden of this Agreement in whole or in part to an Affiliate provided that such assignee agrees in writing to abide by the terms of this Agreement and does so abide by the terms of this Agreement. On any breach of this Agreement by such assignee, this Agreement shall, at the other party's request, automatically reassign to the assignor, who shall be liable as guarantor for any past breaches by its assignee.
15. Force Majeure
Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of God, war, telecommunications/services availability that is not within its control, civil commotion or industrial dispute (
force majeure). If such delay or failure continues for at least 30 days, the party not subject to the force majeure shall be entitled to terminate this Agreement by notice in writing to the other. The party subject to the event of force majeure shall, as soon as practicable, give notice of the event to the other party, such notice to include a reasonable forecast of the duration of the event.
16. Entire Agreement
This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms,
- 16.1 contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that the agreement of the parties contained in this Clause shall not apply in respect of any fraudulent representation whether or not such has become a term of this Agreement.
- 16.2 No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument or accepted by clicking accept within the Pathfinda website provision, or signed on a written Addendum by both parties or by a duly authorised representative of each of the parties.
- 17.1 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
- 17.2 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement.
- 17.3 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
- 17.4 This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original but all the counterparts together shall constitute one and the same instrument.
- 17.5 Each party undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of this Agreement.
Categories are linked to every Listing and are required before the Listing may be Published. Pathfinda maintains categories for Listings that may be Free Categories or Paid Categories, and depending on this status would require payment (or a NightsBridge opt-in connection) in the case of Paid Categories; or not require payment in the case of Free Categories. The status of each of these categories can be found on Pathfinda’s category page.
- 18.1 Free Categories do not require payment; The Effective Date is synonymous with the creation date and the Listing is automatically Published if all required fields have been added by the Customer.
- 18.2 Paid Categories do require payment; The Effective Date comes into force when Pathfinda receives payment, or in the case of NightsBridge, when the opt-in process is completed. The Listing will be Published when the Effective Date is in force and all required fields have been added by the Customer.
- 18.3 Pathfinda reserves the right to modify the status of Free Categories at any time, making them Paid Categories. In the case of a category modification, Pathfinda will notify all Customers concerned before this change is made allowing at least one month to accept payment before the Listings concerned are automatically Unpublished.
19. Accepted Payment Types
- 19.1 is Pathfinda’s preferred payment gateway. For all of the Paid Categories, the Customer can use Stripe to pay for their Listing at the cost of ZAR1,000.00 per annum. Once Pathfinda has received confirmation from Stripe that the payment was successful the Customer’s Listing will be Published.
- 19.1.1 The Payment Term comes into effect from the Effective Date and lasts for one year, after which the Payment Term must be renewed within the Renewal Term;
- 19.1.2 The Renewal Term comes into effect thirty days before the end of the Payment Term, within this period the Customer must renew their Listing for another year (pay for another year) for the Listing to remain Published;
- 19.1.3 Accepted payment options in South Africa using Stripe:
- 220.127.116.11 With Stripe, you can pay with almost any kind of credit or debit card, including Visa, MasterCard, and American Express.
- 19.1.4 No refunds will be entertained as Pathfinda allows the Customer to create a Listing for review (to try it out, add Content, see what it would look like, etc) and only when the Customer is entirely satisfied and would like it Published, does the Customer need to pay the annual subscription fee.
- 19.1.5 The annual subscription starts the same day as we receive confirmation of payment and the Listing may not be put
on holdduring the year to extend this period.
- 19.2 Customers who are accommodation providers, may choose to have their Listing in a Paid Category Published without Stripe payment by opting-in to use NightsBridge instead. Pathfinda provides the possibility for these establishments that currently use the NightsBridge service to list by way of a commission of 15% on bookings received through the Pathfinda website. Customers who do so, accept the following overbooking condition:
- 19.2.1 Pathfinda does not guarantee bookings since each individual Customer (the accommodation provider) manages the availability from their NightsBridge system. Should it be the case that the accommodation provider cannot accommodate a confirmed booking, it is the responsibility of the accommodation provider to find alternative accommodation for the guest. Pathfinda does not accept responsibility for accommodating the guest.
20. Law and Jurisdiction
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the Republic of South Africa. The parties consent and submit to the exclusive jurisdiction of the South Gauteng High Court, Johannesburg.
21. Pathfinda Brand Features
Consisting of all trademarks, service marks, logos and other distinctive brand features of Pathfinda that are used in connection with the Content, including (without limitation) the Pathfinda name, the Pathfinda logo, WWW home page banner(s), the WWW URLs, etc. These brand features should not be copied or reused anywhere on any media without prior consent in writing from Pathfinda.
This Agreement was last amended on 29 June 2016.