BY ACCESSING OR USING THE WEBSITE YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE.
1. IMPORTANT INFORMATION ABOUT THE WEBSITE
THE INFORMATION WE PROVIDE IN CONNECTION WITH AN OFFER, OR OTHERWISE IN CONNECTION WITH YOUR USE OF THIS WEBSITE IS NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL LEGAL, FINANCIAL, TAX, OR REAL ESTATE ADVICE. YOU SHOULD ALWAYS CONSULT PROFESSIONAL ADVISORS BEFORE MAKING REAL ESTATE DECISIONS.
UNLESS OTHERWISE SET FORTH IN A WRITTEN DOCUMENT SIGNED BY SPROUD, SPROUD IS ACTING AS A PRINCIPAL ON ITS OWN BEHALF AS A POTENTIAL BUYER. IT IS REPRESENTING ITS OWN INTERESTS AND DOES NOT REPRESENT YOU IN ANY SALE TRANSACTION. ALL INFORMATION PROVIDED ON OR THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE ESTIMATED VALUE OF YOUR PROPERTY, IS FOR CONVENIENCE ONLY AND WITHOUT EXPRESS OR IMPLIED WARRANTY AS TO ITS ACCURACY OR VALIDITY. RELIANCE ON SUCH INFORMATION TO ENTER INTO ANY REAL ESTATE TRANSACTION IS SOLELY AT
YOUR OWN RISK. WE RECOMMEND THAT YOU CONSULT RELIABLE, INDEPENDENT INFORMATION SOURCES TO PROVIDE YOU INFORMATION ON WHICH TO RELY. IF YOU HAVE ANY QUESTIONS IN THIS REGARD, YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
2. ABOUT THE TERMS
2.1 Website Rules, Offer Terms and OTP
If you request and receive an offer, that offer may be subject to certain terms and conditions (the “Offer Terms”). Further, if you accept an offer, you will be asked to agree to a purchase agreement (the “OTP”), which, once executed by the parties, will govern the sale of your house. The terms of the OTP may be subsequently amended to include differing or supplemental terms (the “Supplemental Terms”). If you choose to accept the Offer Terms and OTP (as amended by any Supplemental Terms), they will be incorporated and deemed part of these TOU. In the event of a conflict between these TOU and any Offer Terms, and OTP(as amended by any Supplemental Terms), the OTP will govern and control.
IN CONNECTION WITH YOUR USE OF THE WEBSITE AND THE CONDUCT OF ANY TRANSACTION(S). FOR EXAMPLE, THE TERMS INCLUDE:
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
IF YOU HAVE ANY QUESTIONS REGARDING TERMS, YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
If you are accepting or agreeing to the Terms on behalf of another person or on behalf of any company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that person or entity to the Terms.
2.2 Amendment of Terms
No other modification, amendment, supplement of or to the Terms will be binding on Sproud unless it is in writing and signed by an authorized representative of Sproud.
2.3 International Users
The Website is operated within the South Africa and is not intended for use outside of the South Africa. If you access the Website from a location outside the South Africa, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3. OFFER & PURCHASE PROCESS
You may not request an offer:
- if you are not able to form legally binding contracts (for example, if you are under the age of 18); or
- if you are barred or prohibited from entering into contracts or conducting real estate transactions under the laws of the South Africa or other applicable jurisdiction.
As of the date of these TOU, we are currently buying homes only in the metro areas specified on our website. However, we are under no obligation to make an offer for any property, including any property within those areas.
Once a request for an offer is submitted, we will typically send you an email within 24 hours notifying you of whether we wish to make an offer for your property. If so, the email will contain your online offer. Offers generally expire 48 hours after receipt, regardless of whether or when you open the email. Each offer will identify its actual expiration date. We also reserve the right to revoke any offer at our discretion, prior to it being accepted, by notifying you of the revocation by an e-mail which shall be deemed delivered at the time sent by Sproud to your e-mail address. Once an offer expires or is revoked, you will not be able to accept the offer.
3.2 Purchase Price, Credits, Costs and Fees
If we elect to make an offer for your property, the offer will identify the purchase price that we are willing to pay and the credits that will be deducted from that price at closing, as set forth in the offer.
Please note that we determine the offer price and credits by analyzing various data sources, including information provided by you. We reserve the right to change the price and/or credits if we discover that the condition of the house is not consistent with your description, or that the information provided by you is otherwise incomplete or inaccurate. Any such change will require your approval, but if you disapprove, Sproud may terminate the OTP.
Sproud makes no representations or warranties that the purchase price we offer will equal or exceed the fair market value or the price you would obtain by listing your house with a real estate agent. Also, while we attempt to keep our credits as close to the same percentages as you would typically pay at closing during a traditional real estate transaction, we make no representations or warranties regarding credits, including how our credits will compare to credits at a traditional closing.
3.3 Closing Costs, Taxes and Fees
You will be responsible to pay any electric certificates, gas certificates , and any other additional closing costs, in a manner customary in the province where the property is located, as determined by the transferring company or closing attorney, as applicable. Examples of such costs include (but are not limited to) loan payoff costs, transfer taxes, recording fees, attorney fees, liens or judgments against your property, prorated homeowner association dues and/or property taxes due through the closing date. In addition, if you have an existing listing agreement with a real estate agent, you will be responsible for determining any amount due to your agent and deducting their commission from your net proceeds after you close. Sproud does not pay or accept commissions, except as disclosed in writing prior to your acceptance of the OTP that it is acting as a real estate broker in the sale and for whom it is acting as an agent in the transaction.
3.4 Purchase Agreement
Once you have reviewed and accepted the terms of the offer, you will receive your OTP via e-mail within approximately 24-hours. The e-mail will come from either PDF format, third-party electronic signature technology providers, on behalf of Sproud. You will also receive an email to schedule a date and time to sign the OTP in person. You must accept the OTP in order to proceed with the sale. The closing date can be anywhere from 20 to 90 business days after your acceptance of the offer, and you can elect to move up to 3 days after the closing date.
After you have reviewed and accepted the terms of the OTP in the manner directed in the e-mail, Sproud will deposit the deposit money as more fully set forth in the Terms of the OTP. The transferring company or closing attorney, as applicable, will then send you a receipt confirming the deposit at which point we will contact you to schedule your home inspection.
We reserve the right to terminate the OTP during the inspection period set forth below in our sole discretion for any discoveries made during the inspection period including, but not limited to, the condition of the house being inconsistent with your description, or that the information provided by you is otherwise inaccurate.
The inspection period begins the day after the contract has been signed by both parties and continues for the period set forth in the OTP, unless otherwise agreed in writing by the parties.
The inspection will be conducted by a third party inspector engaged by Sproud. You must be home during the inspection, which typically takes less than 2 hours.
During the inspection period, Sproud may provide to you the list of items Sproud determines require repair and you will have the option, within the period set forth in the OTP, to elect to (1) have the items on the list repaired prior to closing (2) provide Sproud an additional credit against the purchase price (based on Sproud estimate of the cost to repair the identified items) or (3) decline to make any requested repairs or issue a credit. Sproud can then choose to cancel the contract or may determine that it still wants to move forward with the purchase of the home. If Sproud elects to cancel the contract, there is no penalty to either party.
If you elect to have the items repaired, all repairs must be made by a licensed contractor and all items must be brought into compliance with applicable building codes. You will be required to provide proof of the completion of the work, including the contractors’ name(s) and license number(s), before and after pictures, and receipts. Repairs must also be approved by Sproud during the final walk-through. Additionally, in some circumstances, the repairs required on a home may be significant and require substantial funds to complete or special expertise to manage. In these cases, rather than add unnecessary stress to our customers, we will offer the option of a credit only.
Whether you elect to have the items repaired or to provide Sproud a credit for their repair, you will be required to sign a repair credit addendum to the purchase agreement. Depending on the option that you have elected, the addendum will list the required repairs (and may provide certain additional detail, as necessary), or the credit to be provided.
One or 2 days prior to the closing date, Sproud will conduct a final walk-through to verify that the required repairs have been adequately made, and that the property is otherwise still in the same condition it was during the inspection. If the walk-through reveals that required repairs have not been adequately completed or the property is not otherwise still in the same condition it was during the inspection, additional repairs may be required and the closing may be delayed.
Closing will be scheduled for the date that you selected when you accepted our offer. If you subsequently need to change to your closing date, you must notify us in writing as soon as reasonably possible. We will accommodate change requests, when reasonably practicable to do so as determined by us in our sole discretion. You will receive a check for the purchase price (less any agreed upon credits and any applicable fees) at closing.
3.8 Moving Out
You are responsible to leave the property in the same condition it was in during the walk-through. You are also required, as a general rule, to leave any built-in appliances and other fixtures (items that are attached in some way to the property) unless otherwise agreed in writing. These include (but are not limited to) your air conditioning units, HVAC’s, stove, oven, cooktops, heat pumpss, built-in refrigerator, R/O systems, window treatments, central vacuum and central vacuum hoses, garage door openers and remotes, pool equipment, built-in Braai’s, built-in fire pits, ceiling fans, light fixtures (including, but not limited to, chandeliers), pool fencing, pool cleaning systems and exterior landscape lighting.
Depending on the location of your property, there may be some appliances that you are entitled to take when you move. YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISERS TO ENSURE THAT YOU HAVE A CURRENT AND COMPLETE LIST.
You will be responsible for the cost to repair any damage caused after the walk-through and replace any appliances and other fixtures that you are not entitled to take.
4. TEXT MESSAGES
You may have the opportunity to opt in to receiving certain information, updates and/or offers from us via text communications (for example, when you sign up for instant access to selected properties) by texting us and/or otherwise providing us your mobile telephone number. Consent to receiving text messages is not required as a condition of purchasing any goods or services. If you elect to opt in to receive such communications, you can opt out of receiving text messages at any time by texting STOP.
By providing a mobile telephone number and requesting to receive communications via text message, you represent that you have the necessary authority to allow Sproud to collect and use the number identified. You agree that you will be solely liable for any violation of the terms of this Section 4.1, and indemnify Sproud against any and all Losses (as defined in Section 8.6 below) arising out of or related to a breach of the representations contained herein. You acknowledge that Sproud retains the right, but not the obligation, to confirm the consent of the owner of the telephone number at any time. In the event that Sproud is unable to confirm such consent, we may refuse to send text messages to the requested telephone number.
4.2 Third-Party Costs
You acknowledge that data and messaging plans are required in order to receive Sproud text alerts, and that standard data, messaging and other charges, fees, and taxes from your carrier may apply. You agree that you are solely responsible for such charges, fees and taxes that may result from your receipt of such text alerts, and that Sproud has no liability therefore.
5. USER CONDUCT GUIDELINES
5.1 Users may not:
- access, copy, store or use any aspect of the Website for any purpose other than your own personal use;
- access, search, collect information from, or otherwise interact with the Website or whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by “scraping,” “crawling” or “spidering” the Website, to systematically retrieve information in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots .txt file only);
- access the Website other than through the currently available, published interfaces that are provided by Sproud, unless you have been specifically authorized to do so in a separate agreement with Sproud;
- mirror or frame the Website any page, feature, functionality, tool or content of the Website, copy any aspect of the Website, or use or display Sproud’s name or any of Sproud other trademarks, logos or proprietary materials, without Sproud express written consent;
- interfere with, disrupt, damage or compromise the Website or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Website or otherwise imposing an unreasonable or disproportionately large load on the Website;
- access, tamper with or use non-public areas of the Website, Sproud’s computer systems, or the technical delivery systems of Sproud’s providers;
- probe, scan, or test the vulnerability of any system or network of Sproud or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Sproud or any of Sproud’s providers or any other third party to protect the Website;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Website to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code, software or algorithms used to provide the Website;
- export or re-export the Website, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Website or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
Sproud reserves the right to monitor access and use of the Website, and investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law or the Terms to the fullest extent of the law.
6. INTELLECTUAL PROPERTY RIGHTS & LICENSES
6.1 The Website
The Website, including any and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the South Africa and foreign countries. You acknowledge and agree that the Website, and all intellectual property rights therein are the exclusive property of Sproud. You agree not to remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website.
Subject to your compliance with the Terms, Sproud grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Sproud.
This foregoing license is subject to modification or revocation at any time at Sproud’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Sproud or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 Your Photos and Information
By uploading photographs of your house (your “Photos”), you hereby grant Sproud a non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display your Photos worldwide, in perpetuity, in any and all media, (i) to operate and improve the Website, and (ii) to market, promote, and advertise your house, the Website, and Sproud, in general.
You agree that this license includes the right for Sproud to make your Photos available to other companies, organizations and individuals who have a business relationship with Sproud (“partner”) for syndication, broadcast, distribution and publication on other websites and services. Such additional uses by Sproud, and by the companies, organizations and individuals who partner with us, will not require the payment of any money or other compensation to you.
You acknowledge and agree that we may reformat, modify or adapt your Photos in order to transmit, display or distribute it and/or as are necessary to conform and adapt to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, publish and display your city, state and other relevant information about your house in connection with your Photos.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to your Photos, and that neither your Photos, nor our use of your Photos (or any portion thereof) on or through the Website or in connection with the rights granted will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
You acknowledge and agree that you are solely responsible for your Photos and information about your house, and for any consequences of the use of your Photos by our third-party partners. You understand that our Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit your Photos for such use, it may subject you to liability. Sproud will not be responsible or liable for any use of your Photos by Sproud or any third party in accordance with the Terms.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website (“Feedback”). You may submit Feedback by e-mailing us, at [email protected]. You acknowledge and agree that any and all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Sproud . Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Sproud or its affiliates for any purpose whatsoever, including developing, improving and/or marketing products. You hereby irrevocably transfer and assign to Sproud all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Sproud ’s rights in such improvements, enhancements and modifications.
7. NO ENDORSEMENTS
The Website may provide links to third-party websites, resources or services. You acknowledge and agree that Sproud is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Sproud of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge that you have sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to Sproud that:
- you have the power and authority to accept and agree to the Terms,
- you have the right to provide the information that you provide to Sproud and to grant the rights and licenses granted,
- the exercise by Sproud of the rights granted by you will not cause Sproud to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- all information provided by you will be complete, accurate and up-to-date when provided, and updated by you as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, SPROUD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- INFORMATION PROVIDED ON OR THROUGH THIS WEBSITE DOES NOT CONSTITUTE LEGAL, FINANCIAL, TAX, OR REAL ESTATE ADVICE, NOR IS IT INTENDED TO REPLACE THE NECESSITY OF CONSULTATION WITH YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE AND ANY TRANSACTION CONDUCTED BETWEEN YOU AND SPROUD IS AND REMAINS WITH YOU.
- YOU HEREBY RELEASE SPROUD FROM AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL SPROUD BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SPROUD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- IN THE CASE OF SOUTH AFRICA, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION 8, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, SPROUD’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE THOUSAND RANDS (ZAR 1000).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPROUD AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION 8 THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, indemnify, and hold Sproud, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs (“Losses”) arising out of or relating to or in any way connected with (i) your access to or use of the Website, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your breach of the Terms, including any violation of federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your gross negligence or willful misconduct.
8.7 Obligation to Defend
You agree that, at Sproud’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Sproud may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Sproud (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SPROUD | HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the Republic of South Africa without regard to conflict of law principles.
9.2 Arbitration and Class Action Waiver
All disputes, claims, controversies and matters arising out of or relating to or in connection with these TOU or the breach, termination, enforcement, interpretation or validity hereof, or to the use of the Website, including any Website (collectively, “Disputes”) shall be exclusively settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Johannesburg, GP, SA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. You acknowledge that by agreeing to arbitration as the exclusive forum for the resolution of all Disputes, you are waiving the right to a trial by jury.
All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
In the event that arbitration is not available, you and Sproud agree that any and all Disputes will be brought in the federal or state courts located in Johannesburg, Gauteng and each agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Further, either party may also seek injunctive or other equitable relief for breach of the Terms in any court of competent jurisdiction wherever located. Each party consents to the jurisdiction of and venue in such courts and waives any objection as to inconvenient forum.
9.4 Fees and Costs
The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.5 Future Amendments to this Section
In the event that we amend this “Governing Law & Dispute Resolution” section (other than an amendment to any notice address or site link provided herein) in the future, the amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Sproud. We will notify you of amendments to this section by posting the amended Terms on www.sproud.co.za/Terms-of-Use. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Website immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Sproud in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Sproud may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these TOU.
10.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of this Agreement shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Sproud (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under the Terms or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Sproud. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) “herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) “or” connotes any combination of all or any of the items listed, and (iii) “including” (and any of its derivative forms) means “including but not limited to.”
10.13 Contact Us
If you have any questions or concerns, please contact us at [email protected]
Complaints regarding the Website or requests to receive further information regarding use of the Website may be sent to [email protected]