CARS.CO.ZA TERMS OF SERVICE
THESE TERMS ARE EFFECTIVE AS OF: 1 JULY 2018 “EFFECTIVE DATE”
READ THESE TERMS CAREFULLY BEFORE BROWSING THE CARS.CO.ZA WEBSITE. YOUR CONTINUED USE OF THE CARS.CO.ZA WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THE CARS.CO.ZA WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO ALL USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
1.1. The Cars.co.za website, www.cars.co.za, is made available, and owned by, Cars On The Internet (Pty) Ltd t/a Cars.co.za (bearing registration number 2016/041496/07) (hereinafter referred to as "Cars.co.za", “Website”, "we", “our", "us" or “its”). Any reference to "Cars.co.za ", "we", "our", "us" or “its” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub- contractors, service providers and suppliers.
1.3. Accessing and/or use of the Website after the Effective Date will signify that the User has read, understands, accepts, and agrees to be bound, and are bound, by the Terms in such User’s individual capacity and/or for and on behalf of any entity for whom the User utilises the Website. Further, the User represents and warrants that the User has the authority to do so and that in the case of a User being a natural person, the User is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.4. To the extent permitted by applicable law, we may modify the Terms with prospective effect without prior notice to Users, and any revisions to the Terms shall be noted within such Terms and will take effect when posted on the Website, unless a later date is otherwise stated in the revised Terms. A User’s continued use of the Website and/or the Services will be construed as a User’s consent to the amended or updated Terms, and will be conditional upon the Terms in force at the time of use. A User’s only remedy, should such User not agree to these Terms, is to stop the use of the Website.
2.1. The following terminology applies to these Terms:
2.1.1. “Advert” shall mean an advert placed on the Website, which relates to the sale of a vehicle, setting out, inter alia, the vehicle specifications, photographs, asking price, reviews and the like;
2.1.2. “Dealers”/”Groups” shall mean a person or entity which regularly trades in or is otherwise in the business of vehicle purchase and sales;
2.1.3. “Purchaser” shall mean either a person acting in their sole capacity, alternatively duly authorised to act on behalf of another person or entity which utilises the Services as offered on the Website;
2.1.4. “Seller” shall mean either a person acting in their sole capacity, a Dealer/Group, alternatively a person or entity which is duly authorised to act on behalf of another person or entity who utilises the Services as offered on the Website;
2.1.5. “Services” shall mean those Services as provided to the Users through the Website as more fully set out in clause 4 below; and
2.1.6. “Users” shall mean the Purchaser and the Seller collectively and "User" shall mean either of them as the context may indicate.
2.2. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
3. A USER’S AGREEMENT TO THESE TERMS
3.1. Subject to, and on the basis of a User’s acceptance of the Terms, Cars.co.za grants the User a limited, revocable, non-transferable license to access and use the Website in accordance with the various policies and agreements which may govern such use and access.
4.1. Cars.co.za provides the following Services to Users:
4.1.1. Sellers are able to place an Advert pertaining to the sale of a vehicle onto the Website for the costs as set out in clause 5 below for viewing by prospective Purchasers; and
4.1.2. Provision of information comprising news and tools centred around vehicle purchases, reviews, financing, insurance and the like.
5. COSTS & PAYMENT
5.1. Cars.co.za reserves its rights to charge Sellers, Purchasers and/or Users for use of the Services from time to time in its sole and absolute discretion.
5.2. Payment shall be effected via electronic funds transfer, debit order or credit card through payment gateways, where applicable, provided via an independent third party payment service provider, in the discretion of Cars.co.za. The Purchaser is encouraged to consult the websites of any third-party payment service providers to familiarise themselves with the security protocols and other policies in place and which may apply to any transaction conducted through such payment gateways.
5.3. Upon payment having been processed, the Seller will be able to post the Advert/s on the Website. This is the only manner in which the Advert/s may be placed on to the Website. No e-mailed Advert/s will be accepted by Cars.co.za.
6. THE ROLE OF CARS.CO.ZA
6.1. Cars.co.za provides the Services as set out in clause 4 above.
6.2. Although Cars.co.za, by its provision of the Services, introduces Purchasers or potential Purchasers to Sellers, the Users will be solely responsible for agreeing and formulating between themselves the terms and conditions related to a sale of a vehicle that may arise from the provision of the Services.
6.3. Cars.co.za is not a party to any vehicle sales, nor is it involved in the negotiation or final outcome of any sale, holding of deposits or the like. Accordingly, Cars.co.za shall have no liability arising therefrom. Without limiting the generality of clause 15 below, Users agree to indemnify and hold harmless Cars.co.za in respect of any and all costs, losses and/or damages howsoever arising, whether direct, indirect or consequential out the sale of a vehicle pursuant to an Advert being posted on the Website.
6.4. In certain circumstances Cars.co.za may review, at its discretion, the contents of any Adverts, and in this regard refuse to post Adverts, or may remove such Adverts which are deemed in its sole discretion, not suitable for the Website.
7. UNDERTAKINGS BY THE USER
7.1. The Seller hereby confirms that it shall not upload onto the Website any Adverts that are unlawful, abusive, defamatory, libellous, pornographic, obscene, threatening, invasive of privacy or publicity rights, inclusive of hate speech, or would constitute or encourage a criminal offense, violate the rights of any party, or give rise to liability or violate any national or international law.
7.2. Failure to comply with this undertaking will result in the Advert either being removed from, or not posted on the Website.
8. COMMENCEMENT & TERMINATION
8.1. Subject to clause 9 below, these Terms commence on the date upon which a User first accesses the Website, and shall terminate only upon the later of the termination of the Subscription Period, Once Off Period, or User discontinuing their access to the Website.
9.1. Clauses which out of necessity or by implication herein survive termination of these Terms, shall remain in full and effect despite the termination hereof.
10. RESERVATION OF RIGHTS
10.1. Cars.co.za reserves the right, in its sole discretion, to disable, remove or refuse to display on the Website any Advert and refuse the Seller any and all future use of the Website if Cars.co.za comprises, or has reasonable grounds to suspect, that the Advert contains false, infringing or misleading information, or information not otherwise permitted in accordance with these Terms.
11.1. Cars.co.za does not have, and expressly disclaims, any liability to a User in connection with any content, information, text, graphics, images, audio or video, or material a Seller uploads to the Website. Cars.co.za cannot guarantee, and makes no representations in relation to the completeness or accuracy of any Advert.
11.2. Cars.co.za makes no express, implied or statutory representations, warranties, or guarantees in connection with the Website or the Services, relating to the quality, suitability, truth, accuracy or completeness of any information or material contained or presented on the Website.
11.3. Without limiting the generality of the foregoing, Cars.co.za makes no warranty that the Website will meet a User’s requirements, or that the Website will be uninterrupted, timely, secure, error free or that defects in the Website will be corrected, nor that it will be virus free.
11.4. Cars.co.za makes no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement.
11.5. The User agrees that, whilst Cars.co.za uses reasonable efforts to prevent click fraud, a User shall have no claim of any nature whatsoever against Cars.co.za in the event of any click fraud arising in respect of an Advert.
11.6. Cars.co.za shall not be liable for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications or other systems outside the reasonable control of Cars.co.za. While a User may have statutory rights, the duration of any such statutorily warranties, will be limited to the shortest period to the extent permitted by required law.
11.7. Subject to any express terms, Cars.co.za makes no representation or warranty as to the volume of potential Users accessing the Website.
11.8. Except for any express warranties in these Terms of Service, the Website is provided on an “as is” basis and used at the User’s own risk.
12. UNAUTHORISED USE OF THE WEBSITE
12.1. A User may not:
12.1.1. use the Website for any objectionable or unlawful purpose, including the posting of any threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or spam material;
12.1.2. take any action that imposes an unreasonable or disproportionately large load on the Website's infrastructure, including spam or other unsolicited mass e-mailing techniques;
12.1.3. use the Website in any manner that would result in a User breaching any applicable legislation or licensing obligations (including with respect to privacy) or any obligations a User may owe to third parties;
12.1.4. mislead or deceive others through any act or omission or make a false representation about a User’s identity, including the impersonation of a real or fictitious person or using an alternative identity or pseudonym;
12.1.5. post content which contravenes a confidentiality or non-disclosure agreement, insider trading laws, or intellectual property rights which a User is not authorised to transfer to another party;
12.1.6. conduct any activity which compromises or breaches another party's patent rights, trademark, copyright or other intellectual property rights;
12.1.7. introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment to the Website or to other Users;
12.1.8. crawling, spidering or scraping of content is prohibited, except to the extent required by recognised search engines (e.g. Google) for the purposes of indexing the Cars.co.za Website;
12.1.9. remove or alter Cars.co.za’s copyright notices or other means of identification including any watermarks, as they appear on the Website.
12.2. The User understands and agrees that it is solely responsible for compliance with any and all laws, rules, regulations and taxation obligations that may apply to its use of the Website or the Services.
13.1. Cars.co.za and the contents of the Website are the property of Cars.co.za, and are protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website and/or the Services, is the property of Cars.co.za, unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
13.2. Except as stated in the Terms, none of the contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without the prior written permission of Cars.co.za, and further, should such consent be provided, Cars.co.za reserves its right to withdraw such consent at any stage, in its sole and absolute discretion.
13.3. Users are expressly prohibited to “mirror” any content, contained on the Website, on any other server unless with the prior written permission of Cars.co.za, and further, should such consent be provided, Cars.co.za reserves its right to withdraw such consent at any stage, in its sole and absolute discretion.
13.4. Cars.co.za does not permit copyright infringing activities and infringement of intellectual property rights on the Website, and Cars.co.za may, at its sole discretion, remove any infringing content if they are of the view that such content infringes on another's intellectual property rights or our own.
13.5. The Seller is granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page or other applicable page of Cars.co.za, so long as the link does not portray Cars.co.za, its affiliates, or its products or services in a false, misleading, derogatory, or otherwise offensive manner. A User may not use Cars.co.za’s logo or other proprietary graphic or trademark as part of the link without the express permission of Cars.co.za, its affiliates or content suppliers.
13.6. All trademarks and copyrights, and also any other intellectual property rights, in and to any of the content of the Cars.co.za Website are the exclusive property of Cars.co.za.
14. INTELLECTUAL PROPERTY
14.1. A User undertakes not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Website including any algorithm used by Cars.co.za.
14.2. Cars.co.za owns or is licensed to use all intellectual property on the Website. A User may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
14.3. The ownership in and to any intellectual property comprising the Adverts and the contents thereof, shall as and when posted by a User on the Website, be transferred to Cars.co.za, free of any charge. In this regard, the User agrees to waive any and all moral rights attaching thereto. Accordingly, Cars.co.za shall have the right to use, display, copy, modify, adapt, reproduce, commercialise, prepare derivative works, display and publish all such intellectual property and that content forming all or part of the Advert, for any reasonable purpose.
14.4. By using the Website, a User warrants that it owns or is licensed to utilise and post the intellectual property rights comprising such Advert. This includes copyright in respect of any text posted, as well as the right to use or display any image or logo. The User indemnifies Cars.co.za, and agrees to keep Cars.co.za indemnified, from and against any claims by third parties arising from a User’s Advert, including any breach of intellectual property rights any third party may bring against us, in relation to a User’s Advert.
14.5. No User may use or display any trade marks on the Website without first obtaining the consent of the owner of the trade mark. We own the distinctive “Cars.co.za” marks, brand and logo.
14.6. Nothing on this Website creates any right on a User’s part (express or implied) that would allow a User to use or display a trade mark that such User does not own and has not otherwise validly licensed, regardless of whether the trade mark is currently registered.
15. LIMITATION OF LIABILITY AND INDEMNITY
15.1. The Website shall be used entirely at a User’s own risk.
15.2. Cars.co.za is not responsible for, and the User agrees that we will have no liability in relation to, the use of and conduct in connection with the Website, the purchase and sale of any vehicles being the subject of an Advert, or any other person’s use of or conduct in connection with the Website, in any circumstance.
15.3. A User indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that we may suffer or incur as a result of or in connection with a User’s improper use of or conduct in connection with the Website, including any breach by a User of these terms or any applicable law or licensing requirements.
15.4. To the maximum extent permitted by law Cars.co.za excludes all implied representations and warranties which, but for these terms, might apply in relation to a User’s use of the Website.
15.5. To the extent that Cars.co.za liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute or tort (including negligence), to a User will be limited to the minimum amount imposed by such law.
15.6. Notwithstanding anything to the contrary in these terms, in no circumstances will Cars.co.za be liable for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising from or in any way connected to interruption of the Services of any type, whether in delict, contract or otherwise.
16.1. Confidential Information means any documents or information created, received or obtained from one User by another alternatively Cars.co.za, together with information relating to Cars.co.za as well as non-public information pertaining to Cars.co.za’s business (including, without limitation pricing information, any related entities, the identity of Users, and any content marked confidential or reasonably construed as being confidential due to its nature) which must remain strictly confidential.
16.2. A User may not disclose, solicit, make available or misappropriate any Confidential Information, trade secrets or other proprietary information that belongs to any third party without that party’s prior written permission, or in violation of any express or implied duty or contractual right.
16.3. Where a User is legally required to disclose the Confidential Information, such User shall inform the third party who disclosed the Confidential Information of the requirement as soon as reasonably practicable and liaise with that party prior to disclosing any of that party’s Confidential Information.
16.4. A User shall notify Cars.co.za immediately upon becoming aware of a suspected or actual breach of this obligation.
18.1. Our failure to enforce any provision of these Terms shall not constitute a waiver of such provision. Further, any consent to depart from the terms of this Agreement shall be ineffective unless it is confirmed in writing and signed by us.
18.2. Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with these Terms is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
18.3. The rights, powers and remedies provided to us in these Terms are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of these Terms.
18.5. The laws of the Republic of South Africa shall apply to these Terms and the Terms of Service.
18.6. Any claims, legal proceeding or litigation arising in connection with these Terms shall be subject solely to the jurisdiction of the courts of the Republic of South Africa.
18.7. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect.
19. DOMICILIUM CITANDI ET EXECUTANDI AND CONTACT INFORMATION
19.1. The Seller and Cars.co.za choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Terms, the following:
19.1.1. Cars On The Internet (Pty) Ltd
Block E, Hans Merensky Office Park
32 Van Buuren Road, Bedfordview
Contact Link: https://www.cars.co.za/carsContact.php
Phone Number (Call Centre / Customer Services): 011 450 4250
19.1.2. Seller: The address as provided when registering on the Website.
19.2. Both the Seller and Cars.co.za may change its domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (Seven) days after receipt of notice of change of domicilium.
19.3. All notices to be given in terms of these Terms will:
19.3.1. be given in writing;
19.3.2. be delivered or sent by email; and
19.3.3. be presumed to have been received on the date of delivery.
19.4. Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.