Partner Terms of Service and Agreement entered into with Overflow Business Holdings (Pty) Limited
Please read these terms of service and agreement (“Terms”) carefully before using the website, applications and services (hereinafter referred to the “Platform”) offered by Overflow Business Holdings to register to be an Partner. The domain name https://www.shopespot.com, the Platform and including any related mobile site and mobile application is owned by Overflow Business Holdings (Pty) Limited, a company duly registered and incorporated in terms of the company laws of the Republic of South Africa with its registered address at Unit 109 Aldrovande Palace, 6 Jubilee Grove, Umhlanga Rocks, Durban, 4001 (hereinafter collectively referred to as "Shop eSpot", “we”, and “us”).
These Terms are between you (“Partner”), and Shop eSpot. By clicking on “I accept” and by using the Platform or participating in any of the services offered, you agree to be bound by these Terms.
Definitions
“Partner Media” means all advertising media, including but not limited to websites, applications and newsletters, Partner networks' sub Partners, their owned and brokered media registered to the Platform by the Partner and provided the standard Terms and Conditions of Shop eSpot is always adhered to.
“Partner Links” means advertising materials made available by Shop eSpot to Partner via the Platform, including graphics, artwork, text, files, URLs and HTML or JavaScript code.
“Completed Purchase” means a completion of an approved sale and/or purchase transaction of a Product or Service between a Buyer and a Seller on the Platform in accordance with Shop eSpot’s terms of use which results directly from a Buyer accessing the Platform via Partner Links placed on Partner Media and such Buyer:
is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real life person;
is not using pre-populated fields;
completes all of the information required for the Completed Purchase within the time period allowed by Shop eSpot, and;
is not later determined by Shop eSpot to be fraudulent, incomplete, unqualified or a duplicate.
“Platform” means any platform operated by Shop eSpot, which includes the Shop eSpot mobile site and mobile applications and the Shop eSpot websites.
“Product” means any item listed or service offered on the Platform by Sellers for sale to Buyers.
“Prohibited Content” means any content or term that:
Promotes or is related to illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes, or chain letters).
Promotes or is related to tobacco, gambling, or weapons.
Is related to pornographic or obscene material.
Is related to excessively graphic or explicit violence.
Is defamatory, inappropriate, or profane.
Is discriminatory or constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, or language of such individual or group.
Promotes or contains viruses, worms, corrupted files, malware, cracks, or other materials that are intended to or may damage or render inoperable software, hardware, or security measures.
“Terms of Use” means the terms of use governing the Platform, including additional guidelines required or updated by Shop eSpot from time to time.
“Service Provider” means a third party service provider who provides the platforms, services or software used by Shop eSpot to offer the Shop eSpot Partner Program and perform its obligations under this Agreement.
“User” means any registered valid user of the Platform, which includes both buyers (“Buyers”) and sellers (“Sellers”) on the Platform.
Partner Registration Requirements
The use of and registration to our Platform is available only to, and may only be used by, individuals who are at least 18 years and who can form legally binding contracts under the applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. We may, in our sole discretion, refuse to offer access to or use of the Platform to any person or entity or change its eligibility criteria at any time.
You shall provide any information requested by Shop eSpot and shall ensure such information is true, accurate and complete, for the purpose of registration for the Program. Any false or inaccurate information submitted to Shop eSpot shall be deemed as grounds for termination of this Agreement. Shop eSpot may accept or reject Partner’s application at its sole discretion and for any reason.
In the course of your use of the Platform, you agree to furnish your details and information as requested by us from time to time. You shall remain responsible for maintaining confidentiality of this information, as well as your display name, login and password details.
If your registration as a Partner on the Platform is granted, Shop eSpot grants to you for the duration of this Agreement a non-exclusive, non-transferrable and revocable right to display the Partner Links on its Partner Media at its own cost, for the sole purposes of Partner’s participation in the Platform.
You shall not, without the prior written consent of Shop eSpot, alter or modify or create derivative works of the Partner Links or any of Shop eSpot’s intellectual property. Except as expressly set forth in these Terms, nothing in these Terms is intended to grant you any rights to use any of Shop eSpot’s intellectual property.
You agree that all use of the Platform and Services, and all activities that occur under your account (including without limitation, posting any company or product information, clicking to accept any Additional Agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by yourself.
You agree to comply with any additional terms of service that may be imposed on you by Shop eSpot’s Service Providers at all times during your registration and participation on the Platform as if it were a party to such terms of service itself. In the event of any conflict between such additional terms of service and these Terms and Conditions, these Terms and Conditions shall prevail.
Your Media must be publically available via the information provided in your application to join the Platform. You shall not be eligible to participate, and Shop eSpot may terminate your participation if the Media contains any of the Prohibited Content or other content that Shop eSpot deems inappropriate.
The person registering for the Service by opening an Partner account will be the contracting party for the purposes of our Terms and will be the person who is authorized to use any corresponding account we may provide to the Partner in connection with the Service.
If you register as a business entity you represent and warrant that you are duly authorised by the business entity to accept the terms and you have the authority to bond the business entity to the Terms.
Responsibilities of Partner
You may not contractually bind Shop eSpot or make any representations on behalf of Shop eSpot. You agree to not engage in any unconscionable, false, deceptive, misleading, or fraudulent conduct. You will not advertise substances, services, products, or materials that violate applicable laws. Shop eSpot shall have the absolute discretion and authority to make any request for any removal of any content, material, or other media placed or displayed by the Partner under its performance of these Terms and you shall act upon Shop eSpot’s request immediately.
You undertake to ensure that the Media and the placement of Links complies with all applicable laws.
You will not, and will not allow any third party to do the following:
use advertising e-mails to promote Shop eSpot without Shop eSpot’s prior written consent;
use robots or other automated query tools, computer generated search requests;
fraudulent use of search engine optimization services to generate or conceal impressions, inquiries, clicks, or conversions that are fraudulent or invalid;
drive or utilize any SEM keywords and other keyword-based advertising traffic using the Shop eSpot brand or private labels to Shop eSpot’s Platform (in other words, "Shop eSpot" and other similar words which could be misleading as Shop eSpot must be entered as a negative keyword) without Shop eSpot’s prior written consent;
use any automated means or form of scraping, or other data extraction methods to access, query, collect, or use Shop eSpot intellectual property, including logo, key visuals, creative materials and other Confidential Information from the Platform or otherwise;
(where Partner is an Partner network) re-brokering to another Partner network as their sub-Partner.
A Partner will
not send any email regarding Shop eSpot or Shop eSpot related entities to any individual or entity that has not requested such information;
always include Partner’s contact information and “unsubscribe” information in any email regarding Shop eSpot, the Service or the Platform; and
not imply that such emails are being sent on behalf of Shop eSpot.
A Partner will not
engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Shop eSpot;
use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Shop eSpot;
make any false, misleading or disparaging representations or statements with respect to Shop eSpot;
solicit Merchants to leave the Shop eSpot service;
copy, resemble or mirror the look and feel of Shop eSpot’s websites, Trademarks or Services or otherwise misrepresent Partner’s affiliation with Shop eSpot; or
engage in any other practices which may adversely affect the credibility or reputation of Shop eSpot, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that
uses aggressive or low-quality marketing, including marketing services that are unrelated to Shop eSpot or the Partner’s services,
promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or
violates any intellectual property or other proprietary rights of any third party; or
violates the Acceptable Use Policy.
Each Partner is responsible for:
ensuring that its employees, agents and subcontractors comply with these Terms; and
any breach of this Agreement by Partner’s employees, agents or subcontractors.
Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
Partner acknowledges and agrees that Partner’s participation in the Shop eSpot Partner Program, including information transmitted to or stored by Shop eSpot, is governed by the Shop eSpot’s Privacy Policy.
You may not transfer or sell your Shop eSpot Partner account, username and password to another third party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to these Terms.
Payment of Fees
Upon registration on the Platform, you undertake to pay the applicable setup fees and recurring fees together with fees applicable to your subscription to Online Service and/or POS Services (“Subscription Fees”).
Subscription Fees will be invoiced starting from the day your services are established and in advance of using such services. You will be billed on a recurring and periodic basis ("Billing Cycle"). Billing cycles are set on a monthly basis.
Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Billing Date occurs on the last day of each month. Should this day fall on a weekend or public holiday then the Billing Date will follow the next business day. Our invoices set out Subscription Fees charged during the billing cycle, as well as any disbursement categories that may be incurred.
You will be charged on each Billing Date for all outstanding Subscription Fees that have not previously been charged. Subscription Fees will appear on an invoice, which will be sent to the Partner via the email address provided. An invoice will also appear on the Account page on the Platform Dashboard.
If we neglect to account to you regularly on a billing date whether by inadvertence or deliberately (due to technical and operational faults) this will not mean we are disentitled to our Subscription Fees. You will be notified of late submission of an invoice via the Platform, email or sms in such an event and these Terms will still remain in force.
Invoices are due and payable within 15 days of receipt of same. Should you fail to make payment of same we reserve the right to suspend your access to the Platform.
Should your Subscription Fees not be settled timeously during a Billing Cycle, then you will be liable for the outstanding Subscription Fees together with current Subscription Fees due at the next Billing Cycle. Shop eSpot reserves the right to suspend your account if same is not paid after 60 days.
If your Fees remain outstanding for a third consecutive Billing Cycle, will endeavour to obtain a final attempt for payment from yourself. Should same not be successful, we will suspend and revoke access to your Account and the Services.
You may not be able to access your Account or your storefront during any period of suspension. If the outstanding Subscription Fees remain unpaid for a further 30 days following the date of suspension, Cybr eCom reserves the right to terminate your Account. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle.
If we terminate your subscription due to your non-compliance, you will still be liable for the full subscription fees for the remainder of the subscription period. If not already paid, we may continue to charge you for this amount.
For the avoidance of doubt, all sums payable by you to Shop eSpot under these Terms shall be paid free and clear of any deductions or withholdings whatsoever. Shop eSpot shall be entitled to charge the full amount of Fees stipulated under these Terms.
In particular, Shop eSpot may at its sole discretion introduce new services and modify some or all of the existing services offered on the Platform. In such an event Shop eSpot reserves the right to introduce fees for the new services offered or amend/introduce fees for existing services, as the case may be. Changes to the Fees shall be posted on the Platform and such changes shall automatically become effective immediately after they are posted on the Platform. Unless otherwise stated, all fees shall be quoted in the currency indicated on your application and registration form.
Modifications to the Service and Prices
Prices for using the Services are subject to change upon 30 days’ notice from Shop eSpot. Such notice may be provided at any time by posting the changes to the Shop eSpot or the administration menu of your Shop eSpot via an announcement.
Your continued use of the Service after the Subscription Fee change comes into effect constitutes your agreement to pay the modified Subscription Fee amount.
Shop eSpot reserves the right at any time, and from time to time, to modify or discontinue, the Services (or any part thereof) with or without notice.
Shop eSpot shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Shop eSpot’s Right to Reject
Shop eSpot reserves the right to reject, cancel, modify, change any material or content, the seller details at any time, by giving definitive reason for such change to you well in advance in writing. Shop eSpot may remove or refuse to publish or link to any material/content, which is in its sole discretion considered defamatory, misleading, abusive, unlawful, or otherwise inappropriate or in violation of Shop eSpot policies and practices and against Shop eSpot’s reputation.
Shop eSpot reserves the right to review any Partner Media and any related documentation submitted by the Partner. If, in Shop eSpot’s sole judgment:
any Partner violates the Terms of Use of the Platform;
Partner violates or encourages violation of any applicable laws;
Partner breaches its obligations under these Terms;
Shop eSpot believes that any Partner Media may subject Shop eSpot to criminal, civil, or administrative liability; or
any Partner Media constitutes or contains Prohibited Content, Shop eSpot may take one or more of the following measures:
request that the Partner Links and/or Partner Media be removed or taken down immediately;
require the Partner to cure its violation, non-compliance, or breach within a specified period of time; or
terminate this Agreement.
Termination and Cancellation
This Agreement takes effect on the date that Shop eSpot approves the Partner’s application to join the Partner Platform and continues to be in effect until terminated in accordance with the clauses set our below:
Shop eSpot may unilaterally terminate these Terms ends at its sole discretion and for any reason which Shop eSpot deems appropriate with thirty (30) days’ prior written notice and disabling the Partner Links.
Shop eSpot may terminate this Agreement immediately and without any prior notice if the Partner breaches its obligations under these Terms.
You may cancel your Partner account and terminate the Terms at any time by contacting Shop eSpot and providing us with thirty (30) days written notice of your intention to cancel.
This Agreement will terminate immediately upon:
either party’s dissolution or ceasing to do business, or the institution by or against either party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts; or
the occurrence of an event of Force Majeure (as defined in clause 16) that continues for more than 30 days.
Upon termination of this Agreement, the mutual obligations of the parties hereto shall cease, provided that any moneys due to Shop eSpot by the Partner before such termination shall continue to be owed.
Breach
Without limiting other remedies, we may limit your activity, immediately remove your information, warn other users of your actions immediately, temporarily/indefinitely suspend/terminate/block your account and/or refuse you access to the Platform in the event of, including but not limited to, the following:
1. if you breach the Term, privacy policy or other policies (if any);
2. if we are unable to verify or authenticate any information you provide; or
3. if it is believed that your actions may cause legal liability for you, other users, or us;
We may at any time, at our sole discretion, reinstate suspended Sellers. A Seller that has been suspended or blocked may not register or attempt to register with us or use the Platform (through itself or any other entity or legal form) in any manner whatsoever until such time that such a seller is reinstated by us. Notwithstanding the foregoing, if you breach the Terms or other rules and policies, we reserve the right to recover any amounts due and owed by you to us and take strict legal action, including but not limited to a referral to the appropriate authorities for initiating criminal or other proceedings against you.
Indemnity
You shall indemnify and hold harmless Shop eSpot, its owners, licensee, Partners, subsidiaries, group companies (as applicable) and their respective officers, directors, agents, and employees from any claim, demand, or actions including reasonable attorneys' fees made by any third party or penalty imposed due to or arising out of your breach of the Terms, privacy policy and other policies or your violation of any law, rules, regulations or the rights (including infringement of intellectual property rights) of a third party.
Severability
If any provision of these Terms is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of these Terms shall remain in full force and effect.
Confidentiality
During the course of your use of the Platform, you may receive information relating to us or to the Services that is not known to the general public (“Confidential Information”). You agree that:
all Confidential Information will remain Shop eSpot’s exclusive property;
you will use Confidential Information only as is reasonably necessary for your participation in the Services;
you will not otherwise disclose Confidential Information to any other person or entity; and
you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
You may not issue any press release or make any public statement related to the Platform or Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
Protection of Data
To the extent applicable, you shall not store or make unlawful or unauthorised use of any Personal Information of the users. You agree to strictly comply with the provisions of Protection of Personal Information Act, 2013 (“POPI”) while using such Personal Information. For the purpose of this clause “Personal Information” shall mean any information relating to any natural person which in combination with other information that is either available or likely to be available to you is capable of identifying such person.
Violation of this obligation shall be deemed to be a material breach of these Terms and Shop eSpot shall have the right to forthwith terminate this Agreement without any prior written notice to you. In addition to the foregoing, you as Partner, agrees to indemnify and hold Shop eSpot harmless against all losses, damages, costs, expenses, suits and proceedings (including reasonable attorney fee) that may be suffered or incurred by Shop eSpot due to third party claim arising as a consequence of breach by you or your personnel of this clause.
Use of Shop eSpot Transaction Information
You will not, nor will you cause any other Partner to, directly or indirectly:
disclose any Shop eSpot Transaction Information (defined below), except that you may disclose that information solely as necessary for you to perform your obligations under these Terms if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information;
use any Shop eSpot Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law;
disparage us, our Partners, or any of their or our respective products or services or any customer; or
In addition, you may only use tools and methods that we designate to communicate with Shop eSpot users regarding transactions, including for the purpose of scheduling, communicating, or cancelling the fulfilment of products, services or Content. “Shop eSpot Transaction Information” means, collectively, order information and any other data or information acquired by you or your Partners from Shop eSpot, its Partners, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties' performance under this Agreement.
Shop eSpot Software
The following terms (“Software Terms”) apply to any software (including any updates or upgrades to the software) and any related documentation we make available to you in connection with Shop eSpot Services (the "Shop eSpot Software").
Use of the Shop eSpot Software
You may use Shop eSpot Software solely for purposes of enabling you to use the Shop eSpot Services as provided by Shop eSpot, and as permitted by these terms of use and any service terms. You may not incorporate any portion of the Shop eSpot Software into other programs or compile any portion of it in combination with other programs, or otherwise copy (except to exercise rights granted in this section), modify, create derivative works of, distribute, assign any rights to, or license the Shop eSpot Software in whole or in part.
All software used in any Shop eSpot Service is the property of Shop eSpot or its software suppliers and is protected by copyright laws.
Any software provided by us to you as part of the Services is subject to the provisions of these Terms. Shop eSpot reserves all rights to the software expressly granted by Shop eSpot hereunder. Any third-party scripts or code, linked to or referenced from the Services, are licensed to you by the third parties that own such scripts or code, not by Shop eSpot.
Use of Third Party Services
When you use the Shop eSpot Software, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile software provider. Your use of these third party services may be subject to the separate policies, terms of use, and fees of these third parties.
No Reverse Engineering
You may not reverse engineer, decompile or disassemble, tamper with, or bypass any security associated with the Shop eSpot Software, whether in whole or in part.
Relationship of Parties
You and Shop eSpot are independent contractors, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us.
You will have no authority to make or accept any offers or representations on Shop eSpot’s behalf.
These Terms will not create an exclusive relationship between you and Shop eSpot.
Nothing expressed or mentioned in or implied from these Terms is intended or will be construed to give to any person other than the parties to these Terms any legal or equitable right, remedy, or claim under or in respect to these Term.
All of the representations, warranties, covenants, conditions, and provisions contained in these Terms are intended to be and are for the sole and exclusive benefit of Shop eSpot, you, and customers.
As between you and Shop eSpot, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.
Electronic communications
You agree to receive communications from Shop eSpot electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records.
You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Shop eSpot provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.”
Trademark complaint
Shop eSpot respects the intellectual property of others. In case you feel that your trademark has been infringed, you can write to Shop eSpot at support@shopespot.com
Copyright complaint
Shop eSpot respect the intellectual property of others. In case you feel that your work has been copied in any way that constitutes copyright infringement you can write to Shop eSpot at support@shopespot.com.
Trademark, Copyright and Restriction
The Website is controlled and operated by Shop eSpot and certain Services are provided us Shop eSpot which are optional. Products on the Platform are sold by respective registered Sellers. All material on the Platform, including images, illustrations, audio clips, and video clips, are protected by copyrights, trademarks and other intellectual property rights. You must not copy, reproduce, republish, upload, post, transmit, or distribute Shop eSpot’s or other Seller’s material in any way, including by email or other electronic means and whether, directly or indirectly, you must not assist any other person to do so. Without the prior written consent of the owner, modification or use of the material on any other website/networked computer environment or for any purpose other than personal, non-commercial use is a violation of the copyrights, trademarks, and other proprietary rights is prohibited. Any use for which you receive any remuneration, whether money or otherwise, is a commercial use for the purposes of this clause.
Suggestions and other information
If you or any of your Partners elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us (collectively, “Submissions”), Shop eSpot will consider such Submissions to be non-confidential and non-proprietary. Shop eSpot shall have no obligations concerning the Submissions, and Shop eSpot will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing Submissions in any manner, without any restriction or compensation to you. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.
Force Majeure
In the case of force majeure, which includes but is not limited to: an Act of God, war, disease, revolution, riot, civil commotion, strike, lockout, flood, fire, satellite failure, failure of any public utility, man-made disaster, satellite failure, global pandemic, you agree that Shop eSpot shall be under no liability whatsoever to you (including any event which is caused by the failure or non-performance on the part of the Content Owners or the Platform Partners which results in a delay or failure or disruption of the Services to you) for whatever damages.
Applicable law and jurisdiction
These Terms are to be governed, interpreted and implemented in accordance with the laws of South Africa.
Any dispute arising in relation to our Terms with you shall, to the extent permitted by law, be referred to arbitration in KwaZulu-Natal at a venue to be determined by us applying the Uniform Rules of the High Court of South Africa.
I HAVE READ THESE TERMS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE AND ANY REVISION THE SAME HEREAFTER.
If you have any questions regarding our Website, the Terms, products or services, please click here to contact us.