3J MEDIA (PTY) LTD T/A BUYMYSTUFF
SELLER AND BUYER
TERMS AND
CONDITIONS
(“USER TERMS”)
THESE USER TERMS ARE EFFECTIVE AS OF: 1 MARCH
2023
“EFFECTIVE DATE”
READ THESE USER TERMS CAREFULLY BEFORE ENLISTING AS A USER (SELLER OR BUYER). YOUR
CONTINUED USE OF THE APPLICATION OR THE WEBSITE (COLLECTIVELY THE “PLATFORM”) INDICATES THAT YOU HAVE
BOTH READ AND ACCEPT THESE USER TERMS. YOU CANNOT ENLIST AS A SELLER OR BUYER IF YOU DO NOT ACCEPT THESE
USER TERMS. ALL SECTIONS OF THE USER TERMS ARE APPLICABLE TO ALL BMS USERS UNLESS THE SECTION EXPRESSLY
STATES OTHERWISE.
1. INTRODUCTION
- Both the Application and the Website (collectively the “Platform”) through which
the Services are provided are operated and/or owned by 3J Media (Pty) Ltd t/a BuyMyStuff (BMS) (bearing
registration number: 2019/066010/07) (hereinafter referred to as “3J Media”, “we”, “our” or “us”). The
User Terms are entered into by and between 3J Media and the User. Any reference to “3J Media”, “we”,
“our” or “us”, shall include our employees, officers, directors, representatives, agents, shareholders,
affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service
providers and suppliers.
- The User Terms, including any document incorporated by reference herein,
including, but not limited to the Privacy Policy (collectively, the “Terms”) apply to the User making
use of the Services.
- By utilising the Services after the Effective Date this will signify that the User
has read, understands, accepts, and agrees to be bound, and is bound, by these User Terms in such User’s
individual capacity and/or for and on behalf of any entity that utilises the Services. Further, the User
represents and warrants that it 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).
- To the extent permitted by applicable law, 3J Media may modify the User Terms with
prospective effect without prior notice to a User, and any revisions to the User Terms shall be noted
within such User Terms and will take effect when posted on the App or Website, unless a later date is
otherwise stated in the revised Terms. 3J Media will however use its best endeavours to email any such
amendments to the User Terms to the User prior to same coming into effect. A User’s continued use of the
Services will be construed as the User consenting to the amended or updated Terms, and will be
conditional upon the User Terms in force at the time of use. The User’s only remedy, should such User
not agree to these User Terms, is to no longer make use of the Services.
- 3J Media does not accept any User, or representatives of a User under the age of
majority or who otherwise do not have the relevant capacity to be bound by the User Terms, unless such
User has, through their parent or guardian, consented to the terms hereof.
2. INTERPRETATION
In these Terms:
- clause headings are for convenience purposes and are not to be used in its
interpretation;
- unless the context indicates a contrary intention, an expression which denotes:
- any gender includes the other gender;
- a natural person includes a juristic person and vice versa;
- the singular includes the plural and vice versa;
- the following expressions bear the meanings assigned to them below and cognate
expression bear corresponding meanings;
- “3J Media” means shall mean 3J Media
(Pty) Ltd t/a BuyMyStuff (Registration No: 2019/066010/07), a private company incorporated in
accordance with the company laws of South Africa, having its registered place of business at 3 Mini
Street, Newcastle, Kwa-Zulu Natal, 2940. Email address: info@buymystuff.app;
- “Application” shall mean the software
application which a User may subscribe to through the Website in respect of the rendering of the
Services;
- “Buyer” means a person who purchases
Goods from the Seller through the Platform;
- “Commencement Date” means the date on
which the User registers on the Platform;
- “Content” means the description of the
Goods, photographs of the Goods, a video of the Store together with the Goods; name/description of
the Goods, price of the Goods, available quantity of the Goods; condition of the Goods (i.e. new,
pre-used and the like), size of the Goods, colour of the Goods, brand name of the Goods, weight and
dimensions of the Goods, together with any additional information that the Seller would like to
include;
- “Goods” means the products and/or
services made available to the Buyer by the Seller through the Platform;
- “Party” or “Parties” means 3J Media or the User (Buyer or Seller), or both,
as the context implies;
- “Platform” shall comprise both the
Application and the Website owned and/or operated by 3J Media as subscribed to by a User;
- “Seller” means the owner of the Store,
who makes Goods available for purchase by Buyers through the Platform;
- “User Terms” means these User Terms and
Conditions;
- “Services” means the services provided
by 3J Media to the User as set out in clause 5 below;
- “Store” means the online store created
on the space made available to the Seller by 3J Media on the Platform, on which the Goods are made
available to Buyers for purchase;
- “Terms” means the User Terms and
Privacy Policy collectively, which Privacy Policy may be found at: https://buymystuff.app/;
- “User” means any person/entity that
makes use of the platform, whether as a Seller or Buyer, or both; and
- “Website” means the Website as owned,
hosted and managed by 3J Media, and which Website may be found at: https://buymystuff.app/. Any
reference to the Website shall automatically include the Application.
- If any provision is a substantive provision conferring rights or imposing
obligations on either Party, notwithstanding that it is only in the definition clause, effect will be
given to it as if it were a substantive provision in the body of the Terms.
- Words and expressions defined in any clause shall, for the purpose of that clause,
bear the meaning assigned to such words and expressions in such clause.
3. DURATION AND TERMINATION
- The User Terms shall commence on the Commencement Date and endure indefinitely,
subject, without prejudice, to the right of either Party to terminate the User Terms on 30 (thirty) days
written notice to the other Party.
- Notwithstanding the provisions contained in the User Terms, 3J Media shall be
entitled to terminate the User Terms forthwith on written notice to the User if the User breaches the
User Terms.
4. ONBOARDING OF A USER
- Only a Seller may make use of the Services insofar as same relate to the creation
and operation of a Store.
- In registering as a User by signing up through the Platform, the User shall be
required to provide personal details as well as a Store name should they wish to be a Seller, and upload
Content in order that a Buyer may purchase Goods should it so wish.
- The User shall further be required to provide certain personal information, as set
out in the Privacy Policy.
5. SERVICES
- 3J Media shall act as a facilitator between the Seller and the Buyer by:
- permitting the Seller to create a Store on the Platform; and
- permitting the Buyer to browse all Stores in order to locate Goods that it may
wish to purchase.
- It is specifically recorded that 3J Media shall act only in accordance with the
Services as set out above and shall not in any manner be involved with or party to any arrangements made
between the Buyer and the Seller relating to the viewing of Goods outside of the Platform, the
collection and/or delivery of Goods as well as payment in respect of Goods.
- 3J Media shall further not be held liable, or be seen as an alternative party in
the event of either the Seller or the Buyer not honouring any of their undertakings timeously,
correctly, in full or at all.
6. PAYMENTS
- Registration on the Platform shall not attract any fees.
7. WARRANTIES BY THE USER
- 7.1. The User warrants and undertakes that:
- the information as contained on the Platform insofar as it pertains to the
Content is both true and current;
- it shall not publish or mirror any of this Platform’s material in any media
whatsoever;
- it shall not use the Platform or the Services for any objectionable or
unlawful purpose, including the posting of any threatening, libellous, defamatory, obscene,
scandalous, inflammatory, pornographic, profane or spam material or comments;
- it shall not use the Platform or the Services in any manner that would result
in any other Buyer or Seller breaching an applicable legislation or licensing obligations (including
with respect to privacy) or any obligations that a Buyer or Seller may owe to third parties;
- it shall not take any action that imposes an unreasonable or
disproportionately large load on the Platform infrastructure, including spam or other unsolicited
mass e-mailing techniques;
- it shall not mislead or deceive others through any act or omission or make a
false representation about a Buyer or Seller’s identity including the Goods on offer, including the
impersonation of a real or fictitious person or using an alternative identity or pseudonym;
- it shall not conduct any activity which compromises or breaches another
party’s patent rights, trademark, copyright or other intellectual property rights;
- it shall not copy, collect or save information about other Sellers or Buyers
using the Platform;
- it shall not introduce to the Platform or to other Buyers and Sellers using
the Platform, any virus, worm, trojan horse, malicious code or other program which may damage
computers or other computer-based equipment and/or software;
- it shall not stalk or harass anyone;
- it shall not attempt to disrupt or interfere with the Services as delivered
through the Platform;
- it shall not use the details of other Sellers or Buyers for anything other
than the use expressly permitted by those Buyers or Sellers;
- it shall not download, access, use, harvest or download in bulk other Buyers’
or Sellers’ details;
- it shall not pass on another Buyer’s or Seller’s details to anyone other than
the authorised user of that account;
- it shall not remove or alter 3J Media’s copyright notices or other means of
identification including any watermarks, as they appear on the Platform;
- it shall not use the Services and/or Platform contrary to applicable laws and
regulations, or in any way may cause harm to the Platform, or to any person or business entity;
- it shall not use the Services and/or Platform to engage in any advertising or
marketing other than in a manner expressly permitted by the Platform;
- it shall not crawl, spider or scrape the content of the Platform, except to
the extent required by recognised search engines (e.g. Google) for the purposes of indexing this
Platform; and
- 7.1.19. it shall not provide unauthorised interfaces to the Platform.
- The User further warrants and undertakes that:
- the information provided to 3J Media is and shall remain accurate, true and
correct and that the User will update the information held by 3J Media to reflect any changes as
soon as possible;
- if registering on the Platform on behalf of any entity that such User will be
taken to have represented to 3J Media that it has the authority to act on behalf of the entity, and
that these User Terms will be binding on the User;
- it is not impersonating any person or entity;
- it is not violating any applicable law regarding use of personal or
identification information;
- it is authorised to create an account on the Platform; and
- it will provide, on demand from 3J Media, verification of such User’s
credentials in such form as required by 3J Media.
- 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 Services
and the Platform.
- Certain areas of the Platform are restricted from being accessed by the User, and
3J Media may further restrict access by the User to any areas of the Platform, at any time, in its
absolute discretion.
8. WARRANTIES BY 3J MEDIA
- The Platform and Services are provided “as is,” with all faults, and 3J Media
expresses no representations or warranties, express or implied, statutory or otherwise, including but
not limited to warranties of merchantability, title, fitness for a particular purpose or
noninfringement.
- Without limiting the generality of the foregoing, 3J Media makes no warranty that
the Platform and/or Services will meet a User’s requirements, or that the Platform and/or Services will
be uninterrupted, timely, secure, error free or that defects in the Platform will be corrected.
- 3J Media cannot guarantee or warrant that any file downloaded from the Platform or
delivered to a User will be free of infection or virus, worms, trojan horses or other code that has
contaminating or destructive qualities. The User is responsible for implementing appropriate processes,
systems and procedures to circumvent this type of issue.
- 3J Media cannot be held liable for any inaccurate information contained on the
Platform, other than its own information.
9. CONFIDENTIALITY
- Confidential information means any documents or information created, received or
obtained from 3J Media, together with information relating to 3J Media as well as non-public information
pertaining to 3J Media’s business (including, without limitation any related entities, the identity of
the Sellers or Buyers, and any content marked confidential or reasonably construed as being confidential
due to its nature) (“Confidential Information”) which must remain strictly confidential.
- The 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.
- Where a User is legally required to disclose the Confidential Information, it
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.
- The User shall notify 3J Media immediately upon becoming aware of a suspected or
actual breach of the confidentiality obligations herein contained.
- 3J Media will not disclose or make available to any third party, directly or
indirectly, any User’s Confidential Information, except where 3J Media has the User’s permission, where
the Confidential Information is already in the public domain (through no breach of the User Terms), in
furtherance of the User’s use of the Services, to enforce all or any of these User Terms or if legally
compelled to do so.
10. PROTECTION OF DATA
- 3J Media makes all reasonable efforts to ensure security on its systems. However,
it cannot guarantee that Personal Information, alternatively any data uploaded onto the Platform may not
be accessed, disclosed, altered or destroyed by breach of 3J Media’s administrative, managerial and
technical safeguards. Therefore, 3J Media urges the User to take adequate precautions to protect its
personal data and login details including never sharing its password with anyone.
11. COPYRIGHTS
- The contents of the Platform are the property of 3J Media. Furthermore, the
compilation (meaning the collection, arrangement, and assembly) of all content on the Platform is that
of 3J Media unless credit is attributed to the author thereof, and is, likewise, protected by South
African and international copyright laws.
- Except as stated in these User Terms, none of the contents of the Platform 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 3J Media or the copyright owner, and further, should such
consent be provided, 3J Media reserves its right to withdraw such consent at any stage, in its sole and
absolute discretion.
- The User is expressly prohibited to include any hyperlink to any other Website in
any Content uploaded to the Platform by it.
- The User, in providing a description of the Goods and/or the Store, is prohibited
from using keywords or repetitive words or words which have no bearing on the Goods and/or the Store
appearing on the Platform.
- 3J Media does not permit copyright infringing activities and infringement of
intellectual property rights on the Platform, and may at its sole discretion, remove any infringing
Content should same infringe on another’s intellectual property rights or its own.
- All trademarks and copyrights, together with any other intellectual property
rights, in and to any of the content of the Platform, where not evidently that of the User or a third
party, are the exclusive property of 3J Media.
12. INTELLECTUAL PROPERTY
- The 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 Platform including
any algorithm used by 3J Media.
- 3J Media owns or is licensed to use all intellectual property on the Platform. A
User may not use any of 3J Media’s intellectual property for any purpose other than as may be required
to use the Platform for its intended purpose.
13. CONTENT
- 13.1. The User warrants that
- all rights in and to any Content uploaded by it (including, without
limitation, all rights to the reproduction and display of such Content) are obtained by the User or,
alternatively, all necessary rights in and to such Content providing the rights in and to such
Content have been obtained;
- all necessary license fees, and other financial obligations, of any kind,
arising from any use or commercial exploitation of the Content have been paid prior to it being
uploaded to the Platform;
- Content does not infringe the copyright, trademark, patent, trade secret, or
other intellectual property rights, privacy rights, or any other legal or moral rights of any third
party;
- it is entitled, in the event of the Content being the property of a third
party, to receive any payment generated from sales as a result of the uploading of the Content;
- the Content does not incorporate materials from a third-party website, or
addresses, email addresses, contact information, or phone numbers (other than a Seller’s own
materials);
- the Content does not contain any viruses, worms, spyware, adware, or other
potentially damaging programs or files; and
- the Content does not contain any information that may be considered
confidential, proprietary, or personal insofar as it relates to a third party.
- By submitting the Content, the User grants 3J Media an irrevocable, perpetual,
transferable, non-exclusive, fully paid, worldwide, royalty free license (sub-licensable through
multiple tiers) to publish feedback, comments and ratings in respect of the Service and use such
feedback in blogs, features, social media posts, highlights as well as for advertising and promotional
purposes.
- 3J Media shall not be held liable or responsible for any loss, theft, damage or
misuse of the User’s Content.
14. LIABILITIES AND INDEMNITIES
- Without limiting the generality of these User Terms, the User hereby indemnifies
3J Media and shall keep indemnified 3J Media in respect of any cost or expense incurred by 3J Media by
virtue of a decision made by it to comply on a User’s behalf, with or without a User’s permission,
arising out of any regulation or law including but not limited to any amendments or deletions which 3J
Media may make in respect of any Content uploaded onto the Platform by the User.
- Notwithstanding anything to the contrary, in no circumstances will 3J Media 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 for any reason whatsoever, whether in
delict, contract or otherwise.
- 3J Media shall not be liable for delays, interruptions, service failures or other
problems that may be caused as a result of the use of the internet and electronic devices and
communications outside of its reasonable control.
- Without limiting the generality of the foregoing, 3J Media makes no warranty that
the Platform will meet the User’s requirements, or that the Services will be uninterrupted, timely,
secure, error free or that defects in respect of 3J Media will be corrected, nor that it will be virus
free.
- The User accepts that access to the Services and the Platform may be restricted on
occasion due to necessary updates and maintenance being carried out on the Platform.
- Except for any express warranties in these User Terms, the Services and Platform
are provided on an “as is” basis and used at the User’s own risk.
- 3J Media makes no other warranties, express or implied, statutory or otherwise,
including but not limited to warranties of title, fitness for a particular purpose or non-infringement.
15. BREACH
- If either Party commits a breach of these User Terms and fails to remedy such
breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the
Party giving notice shall be entitled, at its option, either to cancel these User Terms and claim
damages or alternatively to claim specific performance of all the defaulting Party’s obligations,
together with damages, if any, whether or not such obligations have fallen due for performance.
16. DISPUTE RESOLUTION BETWEEN 3J MEDIA AND THE USER
- Any dispute which arises between the Parties in respect of these User Terms shall
require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days
of the dispute having been raised in writing.
- If the dispute cannot be resolved in accordance with the foregoing, the dispute
shall be finally resolved in accordance with the rules of Arbitration Foundation of South Africa
(“AFSA”) by an arbitrator or arbitrators appointed by AFSA.
- Either Party may demand that a dispute be referred to arbitration by giving
written notice to that effect to the other Party. This clause shall not preclude either Party from
obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision
of the arbitrator.
- The arbitration referred to in clause 16.2 shall be held –
- in Durban, KwaZulu Natal or other venue agreed by the Parties in writing;
- in English; and
- immediately and with a view to its being completed within 21 (twenty-one) days
after it is demanded.
- The Parties irrevocably agree that the decision in arbitration proceedings:
- shall be final and binding upon them;
- shall be carried into effect; and
- may be made an order of any court of competent jurisdiction.
17. NOTICES AND DOMICILIUM
- The User and 3J Media 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, the following:
- 3J Media, the address set out in clause 2.3.1 above.
- User: The address as provided when registering on the Platform.
- Both the User and 3J Media may change their 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.
- Any notice given in terms of these User Terms shall be in writing and shall –
- if delivered via email, on the date of dispatch;
- if delivered by hand, be deemed to have been duly received by the addressee on
the date of delivery; and
- if delivered by an internationally recognised courier service, be deemed to
have been received by the addressee 3 (three) business days after dispatch.
- Notwithstanding anything to the contrary contained in these User Terms, a written
notice or communication actually received by one Party from the other shall be adequate written notice
or communication to such Party.
18. VARIATION
- No contract varying, adding to, deleting from or cancelling these User Terms, and
no waiver of any right under these User Terms, shall be effective unless reduced to writing and signed
by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means
of email signatures.
19. APPLICABLE LAW AND JURISDICTION
- These User Terms and the relationship between the Parties hereto shall be
regulated entirely by the laws of the Republic of South Africa and, in the event of a dispute, the
Parties hereto consent, at 3J Media’s sole and exclusive discretion to the jurisdiction of the
Magistrate’s Court of South Africa.
20. ENTIRE AGREEMENT
- These User Terms, in conjunction with the Privacy Policy shall constitute the
entire agreement between the Parties as to the subject matter hereof and no agreements, representations
or warranties between the Parties regarding the subject matter hereof other than those set out herein,
are binding on the Parties.
21. ASSIGNMENT
- These User Terms are personal to 3J Media and the User, and the User shall not be
entitled to assign, transfer, alienate or otherwise dispose of all or any of its rights and/or
obligations under these User Terms.
FORCE MAJEURE
- If either Party is prevented or restricted directly or indirectly from carrying
out all or any of its obligations under these User Terms due to third party strikes or lock-outs, server
downtime, black outs, riots, wars, sabotage, governmental laws, regulations or rulings, acts of God,
fire, flood and other acts beyond the control of such Party, the Party so affected shall be relieved of
its obligations hereunder during the period that such event and its consequences continue, but only to
the extent so prevented and shall not be liable for any delay or failure in the performance of any
obligations hereunder or loss or damages whether general, special or consequential which the other Party
may suffer due to or resulting from such delay or failure, provided always that written notice shall
forthwith be given of any such inability to perform by the affected Party. Either Party invoking force
majeure shall upon termination of such event giving rise thereto, forthwith give written notice thereof
to the other Party.
- If the event continues for a period of 30 (thirty) days, either Party may then
give notice of termination of these User Terms, which termination shall take effect 7 (seven) business
days after the giving of the notice.
23. PREPARATION
- These User Terms have been custom created for 3J Media by the good folks at Legal
Legends www.legallegends.co.za.