1.1. YBYNU is the owner of the YBYNU.co.za website which lists and shows used, demonstration, pre-owned and other goods and items (Sale Goods) belonging to Sellers and available for the purchase thereof by the buyers. YBYNU shall also be entitled to be the Seller of the Sale Goods and in which event these Terms shall apply to YBYNU as Seller.
1.2. YBYNU agrees to grant you, as User/s access to the Platform subject to these Terms. You warrant and accept that you have read and understood these Terms and YBYNU links referred to in these Terms and which may incorporate further and/or additional related Terms, by which Users shall also be bound.
1.4. YBYNU has no liability, obligation, risk, accountability, responsibility, duty or commitment and Users hereby indemnified and absolve YBYNU from any claims, losses (direct and/or indirect and/or consequential) and liabilities and held harmless, YBYNU being free from commitment or obligation, save and exclusively as may arise directly from these Terms.
1.5. All transactions between Buyers and Sellers in respect of Sale Goods conducted and performed on the Platform or as may arise from the Services are, to the extent relevant, governed by the terms and conditions of the Consumer Protection Act 68 of 2008 (the CPA) and these Terms.
1.6. Use of the Platform is restricted and limited to the User registered in accordance with the YBYNU registration procedures, such registered User being liable for the use by any third-party of the Platform and the purposes envisaged in accordance herewith.
2. The Platform, Buyers & Sellers
2.1. Sellers use the Platform to list Sale Goods. Seller can decide to allow people to purchase the Sale Goods immediately at a fixed price or, if the Seller makes this option available, to negotiate with the Buyer regarding price facilitated and undertaken by YBYNU.
2.2. Buyers use the Platform to purchase Sale Goods. Buyers browse through Sale Goods listed on the site or at the YBYNU premises or show room. Buyer can either purchase Sale Goods immediately or if this option is available, negotiate with the Seller facilitated and undertaken by YBYNU.
2.3. Relationship. YBYNU is independent of the Buyers and Sellers and no agency, partnership, joint venture, employment, franchise or fiduciary relationship is intended or created by the use or operation of the Platform by the Seller’s and/or Buyers or otherwise in Terms hereof.
3. Sale & Purchase of Sale Goods and use of Services
3.1. The Seller, once registered on the YBYNU platform may approach YBYNU to list the Seller’s Sale Goods for sale on the YBYNU platform, by describing the Sale Goods, specifying a Sale Price (referred to herein as “the Prescribed Price” at which price the Sale Goods shall only be sold and, at the option of the Seller, specify a reduced minimum price at which the Sale Goods may be sold (referred to herein as “the Minimum Price”) (and any sale of the Sale Goods at an amount equal to or exceeding the Minimum Price shall be binding on the Seller).
3.2. The Seller shall describe the Sale Goods, in writing, as contemplated elsewhere in these Terms.
3.3. YBYNU shall take possession and control of the Sale Goods into its premises or place/s of business as expeditiously as circumstances allow and which the Seller may deliver to YBYNU or which YBYNU will otherwise collect and transport, as provided for elsewhere in these Terms.
3.4. YBYNU shall list the Sale Goods on the platform together with the relevant particulars and description thereof, as provided for elsewhere in these Terms, specifying the Prescribed Price (and which shall include a 15% handling fee, payable by the Purchaser as a component of the Sale Price but which shall be retained by YBYNU).
3.5. Purchasers may contact YBYNU with a view to purchasing the Sale Goods and convey offers, on the Platform and/or in writing, including by way of email, for the purchase thereof at the Prescribed Price or any other offer or conditions in respect thereof, including in relation to insurance and transport (and which shall specify whether the Sale Goods will be collected by the Purchaser or to be delivered by YBYNU and in which latter event, the address for such delivery shall be specified). Any offer to purchase the Sale Goods at the Prescribed Price (or, upon negotiation, an amount equal to or exceeding the Minimum Price) and which, at the option of YBYNU, may include the 15% administration fee referred to herein, shall, subject to payment of the requisite amount, constitute a valid and binding sale of the Sale Goods by the Seller to the Purchaser (such agreed price hereinafter referred to as the Sale Price). Any written offer conveyed by the Purchaser to YBYNU, on behalf of the Seller, to purchase the Sale Goods at a price less than the Prescribed Price shall be irrevocable for a period of 24 hours.
4. Payment procedures
4.1. Payment of the Sale Price shall be effected by or on behalf of the Purchaser to YBYNU on behalf of the Seller, immediately but in any event within 24 hours of written confirmation by YBYNU to the Purchaser of the conclusion of the sale of the Sale Goods in accordance with the agreed arrangements in respect thereof, including the Sale Price, relevant particulars and delivery arrangements (as contemplated elsewhere in these Terms) into the designated YBYNU client account, as follows:
YBYNU Pty Ltd (Transactions Account) Standard Bank
Ellis Park Branch (00 46 05)
Account no.: 002 100 9240
Ref.: (To be provided by YBYNU)
or such other client account as may be nominated by YBYNU, in writing, from time to time with proof of payment to be sent by the Purchaser to YBYNU within such 24-hour period.
4.2. Upon payment of the Sale Price reflecting in the designated account, the sale of the Sale Goods from the Seller to the Purchaser on the agreed provisions shall come into effect and be binding upon the Seller and Purchaser respectively.
4.3. Within 14 days of receipt of the Sale Price and provided the money back return has not been invoked by the Purchaser in respect of the Sale Goods and in the absence of any clear dispute, as provided for in these Terms, pay the Sale Price, less the permitted deductions, also provided for in these Terms, to the Seller into the bank account nominated by the Seller, in writing.
5. Fees & Commissions & Other Charges
The Seller shall pay YBYNU the following, with VAT, if applicable, as an offset and first draw against the cleared proceeds of Sale Price received by YBYNU on behalf of the Seller in respect of the sale of the Sale Goods, as follows:
5.1. commission on the sales of Sale Goods as published on the YBYNU website/Platform, applicable as at the date of conclusion of the sale of the Sale Goods and as may change from time to time;
5.2. storage charges equivalent to 5% of the Designated Price specified by the Seller, per month for goods in the possession and/or control and/or in the premises of YBYNU for longer than 60 days;
5.3. any transport costs in accordance with the provisions hereunder or as published on the YBYNU website/Platform, applicable as at the collection or dispatch of the Sale Goods and as may change from time to time;
5.4. any amount due in terms of insurance, collected by YBYNU on behalf of any insurer concerned;
5.5. any other costs and charges for which the Seller may be responsible in accordance with these Terms or otherwise.
5.6. The Seller recognises that YBYNU has a lien and right of retention of the Sale Goods in respect of any amounts due by the Seller to YBYNU in Terms hereof.
6. The Sale Goods
6.1. As required by YBYNU, whether in writing, including email, or at the time of the delivery of the Sale Goods or the collection thereof, the Seller shall be required to provide such a written or electronic Sale Goods registration, which include the name of the Seller, address, contact and other personal particulars, Prescribed Price, Minimum Price (if applicable) and detailed and accurate particulars and description of the Sale Goods (as contemplated elsewhere in these Terms).
6.2. The Seller acknowledges that by virtue of the provisions of the CPA that disclaimers regarding the state and condition of any of Sale Goods are inapplicable and unenforceable and Sale Goods shall not be sold nor purport to be sold on the basis that such sale is or purports to be “Voetstoots” or “as is”. The Seller and any sale of any Sale Goods or subject to the provisions and conditions of the CPA.
6.3. As such the Seller recognises and acknowledges that a true and accurate description and particulars of the Sale Goods is fundamental. YBYNU bears no responsibility or obligation respect thereof. YBYNU shall (subject to reformatting and grammatical revision) published the particulars of the Sale Goods on the Platform in accordance with the description and particulars of the Sale Goods provided by Seller.
7. Return policy
The Purchaser is entitled, within 7 days of payment of the Sale Consideration to return the Sale Goods - in the same state and condition as at the time of collection or delivery - to the premises of YBYNU, together with the original packaging, if applicable. The Purchaser shall provide YBYNU with bank details and the Sale Price paid by the Purchaser shall - subject to such funds having cleared - be refunded by YBYNU into such specified bank account by electronic transfer.
8. Receipts and invoices
8.1. YBYNU shall, on behalf of the Seller on the conclusion of the purchase and sale of the Sale Goods concluded between the Seller and Buyer, issue and provide the Buyer with a receipt reflecting the particulars and financial implications of the transaction, name and address details of the Buyer, date of the transaction, description of the Sale Goods, price paid and any other relevant particulars in respect of the transaction.
8.2. YBYNU shall simultaneously with the payment made to the Seller, issue a invoice to the Seller, including VAT, if applicable, recording the particulars of the transaction, name and address details of the Seller, date of the transaction, description of the Sale Goods, Sale Price paid and any other relevant particulars in respect of the transaction.
9. Non-payment, breach and default
9.1. If the Purchaser failed to pay the Sale Price into the nominated account within 24 hours of the conclusion of the sale of the Sale Goods the sale shall lapse; provided that the sale of the said Sale Goods may be reinstated, on such terms as may be recorded by YBYNU, in writing.
9.2. It consequently follows that no sale of the Sale Goods shall be deemed to have been concluded until such time as the funds paid in respect of the Sale Price in respect of the Sale Goods have cleared and reflected in the designated account, such sale consequently being conditional upon payment.
9.3. No Sale Goods will be released to or delivered to the Purchaser, nor shall the Purchaser or any other person have any claim or entitlement to or in respect of the Sale Goods until such time as the Purchaser has complied with all of the Purchaser’s obligations in accordance with these Terms including, in particular, in regard to payment.
9.4 If at any time subsequent to the conclusion of the sale in respect of the Sale Goods, whether or not the Purchaser has paid the Sale Price, YBYNU shall be entitled to initially suspend and, in its discretion, to cancel the sale of the Sale Goods if YBYNU has any reason to reasonably suspect that the title to the Sale Goods is questionable or any other circumstances exist in respect of the Sale Goods, including as to the state and condition thereof or any other aspects of the transaction in respect thereof is questionable or suspicious or otherwise open to doubt.
9.5. YBYNU shall be entitled to terminate the registration of any User at any time, in its sole discretion and prohibited any User from utilising the Platform otherwise participating in any of the purposes contemplated in these Terms, in its sole discretion.
10. Transport costs collection and delivery
Transport costs will be published on the YBYNU website/Platform, applicable as at the date of conclusion of the sale of the Sale Goods, and as may change from time to time or as otherwise maybe agreed between YBYNU and Users, recorded in writing, and, in the absence of such publication or agreement, the charges for the collection or delivery of Sale Goods by YBYNU from or to Users, to or from the place/s of business of YBYNU, as the case may be, on the following:
10.1. without charge if such collection or delivery point is within a radius of 24 km from such place/s of business;
10.2. a charge of R7p/km if such collection or delivery point is in excess of a radius of 24 km from such place/s of business or as may otherwise be agreed and acceptable to YBYNU, recorded in writing; provided that such defined radius shall be determined by YBYNU, in its sole discretion and such defined radius shall be determined by YBYNU in its sole discretion);
11. Risk & Insurance option
11.1. Until such time as the Purchaser has paid for the Sale Goods, all risk in and to the Sale Goods shall lie with the Seller, including during any transportation and storage thereof by YBYNU.
11.2. After the Purchaser has paid for the Sale Goods all risking into the cell goods shall lie with the Purchaser including during the transportation and storage thereof by YBYNU.
11.3. Users shall be entitled to insure or obtain indemnity cover in respect of Sale Goods themselves in the ordinary course.
11.4. YBYNU may avail or introduce or facilitate risk/indemnity cover to Users, as published or available on the Platform and/or by way of direct communication between Users and YBYNU and/or insurance brokers and/or indemnity insurers, from time to time and documentation in the ordinary course in respect thereof, in accordance with such provisions as may be published on the Platform and/or relevant documentation, from time to time and in accordance with which Users shall be entitled to procure risk/indemnity insurance in respect of the Sale Goods.
11.5 At no time shall YBYNU have, be or at risk or bear any responsibility and/or have any liability or exposure, whether directly or indirectly, for any direct or indirect or consequential loss or damages in respect of the Sale Goods for any reason and howsoever arising, YBYNU being indemnified and held harmless by Users in respect thereof.
11.6. Sellers must inform their relevant insurers that their goods are stored offsite.
12. Anonymity and Verification
12.1. Registration. When registering as a User of the Platform, you will have been prompted to create an account, with a verification code and a password shall be allocated to all Users. YBYNU is anonymous Platform, which means User’s information will be kept private and confidential to YBYNU only in accordance with these Terms. YBYNU will never share or disclose your contact information save as may be required by law (as defined hereunder) or in accordance with the provisions relating to resolution of disputes (contemplated elsewhere in these Terms).
12.2. Identity Verification. YBYNU may independently validate the identity of Users. The identity of Users is confidential to YBYNU. Where applicable YBYNU shall reflect the verified status of Seller/s identity or other particulars on the Platform.
12.3. YBYNU Review. YBYNU may review the state and condition of Sale Goods and may contact the Seller to obtain additional information (such as details and particulars of ownership, information and/or documentation regarding purchase and acquisition, use, insurance or otherwise), before posting the Sale Goods to the Platform. Notwithstanding this, YBYNU makes no warranty in respect of the Sale Goods, whether in Terms of the description particulars published on the Platform or otherwise and no User may rely thereon.
13. Sellers’ Warranties
13.1. The Seller warrants that:
13.1.1. the Seller is the owner of the Sale Goods alternatively is duly authorised to deal with the Sale Goods;
13.1.2. the Sale Goods are free from any lien and/or attachment and any other encumbrance and have been paid for in full;
13.1.3. no other person whatsoever has any rights, title or claim to the Sale Goods;
13.1.4. the Sale Goods are not stolen
13.1.5. the Seller has the free and unrestricted right to sell and dispose of the Sale Goods;
13.1.6. the Seller has disclosed all material matters, facts and things, pertaining to and/or relating to the Goods.
13.2. The Seller acknowledges that the sale of the Sale Goods may be subject to the CPA and is otherwise governed exclusively by these Terms.
13.3. If YBYNU has, in its sole discretion, any apprehensions doubts, and/or concerns or the like regarding the source, state, condition or any other misgivings, of whatsoever nature or howsoever arising, YBYNU may decline to list any Sale Goods on the Platform or remove any listing therefrom and remove such Sale Goods from any show room in return such Sale Goods to the Seller and, depending on the circumstances, as determined by YBYNU, sole discretion, require the Seller to pay transport and/or storage charges, as specified in these Terms.
Purchasers warrant, acknowledge and agree that in respect of any Sale Goods purchased in terms hereof that:
14.1. the Purchaser is responsible for determining the state, condition and fair value of the Sale Goods and verifying the information provided by the Seller and to this end, all Sale Goods are available for inspection at YBYNU premises;
14.2. by accepting an offer, you are ready, willing and able to pay the Sale Price (and all applicable taxes) immediately but in any event within the prescribed 24-hour period or such other period as may be stipulated by YBYNU, in writing, including by email.
14.3. you will make payment of the Sale Price and any other amounts due by the Purchaser, including transport/delivery and/or insurance charges, if applicable;
14.4. your use of the Platform, each offer accepted, the purchase of the Sale Goods and any communication or transaction initiated on the Platform complies fully with all South African laws, statutes, ordinances and regulations and all international Laws - including applicable permits, restrictions or prohibitions on import/export of Sale Goods; and
14.5. the purchase of the Sale Goods may be subject to the CPA and is otherwise governed exclusively in accordance with these Terms.
15. YBYNU Never Liable
15.1. Sale Goods. Sellers and Buyers agree that YBYNU is not responsible for and nor makes any representations or warranties (express or implied) as to the Sale Goods, including as to the saleability, fitness for a particular purpose, the accuracy of the description of Sale Goods, the physical condition, size, quality, other physical parameters and/or any other physical characteristic any other matter, fact or thing pertaining to the Sale Goods, including the origin ownership thereof or otherwise and/or whether the goods are subject to export or import permits, restrictions or embargoes, shipment or delivery, packing or handling, compliance with purchase Terms, the ability of the Buyer to pay, the ability of the Seller to deliver and/or any other representation or warranty of any kind or nature whatsoever.
15.2. Fraud. Whilst YBYNU makes every reasonable effort to prevent fraud, YBYNU, disclaims liability for purchases of Sale Goods contracted between a Buyer and Seller and the Buyer and Seller indemnify and hold YBYNU harmless accordingly.
15.3. Inspection of documents. As a service to its Users, YBYNU may inspect documents of title and/or condition and/or appraisal and/or valuation in respect of Sale Goods. If available, YBYNU may display documentation pertaining to the Sale Goods but is not obliged to do so; however, YBYNU disclaims all warranties and makes no representations about the actual authenticity of the Sale Goods and the Buyer and Seller indemnify YBYNU accordingly.
16. Independent Agreement
Users acknowledge and agree that each sale of Sale Goods initiated on the Platform forms an independent agreement between the Seller and Buyer. YBYNU does not transfer ownership of Sale Goods from the Seller to the Buyer but facilitates the purchase and sale of the Sale Goods. YBYNU is not the agent of any Seller and/or Buyer.. YBYNU is a communicator and facilitator of the transactions contemplated in Terms and facilitates payment arrangements only.
17. Rating and Feedback
Whenever buying or selling Sale Goods, you may be asked to provide feedback regarding the transaction generally. You undertake to provide honest feedback to enable YBYNU to provide other Users with reasonable expectations. YBYNU may develop a User rating, or reputation, based primarily on the comments and ratings left by other Users. Such rating is for information purposes only and YBYNU makes no warranty, promise or stipulation respect thereof or gives any undertaking as to the accuracy or validity or voracity thereof and indemnified and hold harmless and respect of any claim, loss or liability arising therefrom.
18. Confidentiality between Users
18.1. YBYNU acknowledges and agrees that all personal data and/or information and/or documentation and/or any other personal particulars provided by Users to YBYNU (whether or not it is described as confidential) in any form or medium or any of the same as may come to the knowledge of any of the Users in respect of any other Users is private and confidential (Confidential Information).
18.2. YBYNU and Users further acknowledge and agree that:
18.2.1. the Confidential Information that comes into knowledge of YBYNU and/or any user (Recipient) is secret, confidential and valuable to the party to whom such confidential information may relate (Discloser);
18.2.2. The Recipient owes an obligation of confidence and secrecy to the Discloser concerning the Confidential Information;
18.2.3. Any breach or threatened breach by the Recipient of an obligation under these Terms may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally);
18.2.4. Recipient shall not use any Confidential Information disclosed to it by the Discloser for its own use or for any purpose other than to carry out the purposes envisaged in these Terms and the relationship arising between all of the parties in respect of (“the Relationship”);
18.2.5. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties, other than agents of Recipient who require the information in order to carry out the discussions regarding the Relationship;
18.2.6. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information. Recipient shall notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient's attention;
18.3. The Recipient must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
18.3.1. any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
18.3.2. any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
18.4. The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser if there is:
18.4.1. any actual, suspected, likely or threatened breach of a term of these Terms; or
18.4.2. any theft, loss, damage or unauthorized access, use or disclosure of any Confidential Information that is or was in its possession or control.
19. Confidentiality of information collected or received by YBYNU
19.1. YBYNU acknowledges and undertakes that it will abide by in here to the provisions of the Protection of Personal Information Act 2013 and in respect of which Users shall also be bound.
19.2. Without derogating from the aforegoing, YBYNU will keep confidential all personal information about Users of the Platform.
19.3. YBYNU acknowledges and agrees that:
19.3.1. the Confidential Information conveyed to the Recipient is secret, confidential and valuable to the Discloser;
19.3.2. the Recipient owes an obligation of confidence to the Discloser concerning the Confidential Information;
19.3.3. any breach or threatened breach by the Recipient of an obligation under these Terms may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving party (and its agents, assigns, employees, officers and directors, personally) but shall be precluded from doing so in the case of YBYNU and the Discloser waives and abandons and renounces the right to do so.
19.4. Exception for Dispute between Users subsequent to a sale
Notwithstanding the above, if a legal Dispute arises between Users, YBYNU may be required to reveal the identities of Buyer and Seller to one another in order to permit for the pursuit of the legal claim. For more details, see the Disputes section (Disputes).
19.5. Other Exceptions Notwithstanding the above, Recipient shall not have liability to Discloser with regard to any Confidential Information that the Recipient can prove:
19.5.1. was in the public domain at the time it was disclosed or has entered the public domain through no fault of Recipient;
19.5.2. was known to Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
19.5.3. is disclosed generally to third parties by Discloser without restrictions similar to those contained in this Agreement;
19.5.4. becomes known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser's rights;
19.5.5. is disclosed with the prior written approval of Discloser; or
19.5.6. is disclosed pursuant to an order or requirement of a competent court, administrative agency, or other governmental body; provided, however, that Recipient shall provide prompt notice of such court order or requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure.
Further General conditions
20.1. Compliance with these Terms is a condition ofall use of the Platform by any User. By using the Platform, each User accepts and agrees to be bound by these Terms, over and above the binding obligations arising from the User’s login and registration process.
20.2. YBYNU may modify, alter, vary, change, revise, amend and/or update (“update”) these Terms at its sole and absolute discretion from time-to-time and unless stated otherwise by YBYNU in writing, such updates shall come into effect once made available on the Platform and/or otherwise notified to Users. By using the platform at any particular time, Users are deemed bound by the Terms applicable at such particular time and as may change from time to time. Any updated Terms at any time shall be deemed to be the relevant and binding Terms applicable to the use of the Platform at any particular time and as may change from time to time.
21. License & Use
21.1. By accepting these Terms, the User is granted a limited, non-exclusive and revocable license to access and use the Platform for the duration of these Terms, in accordance with these Terms.
21.2. YBYNU may terminate, restrict, revoke or suspend the User's use and or license(s) (and prevent future use of the Platform) in its absolute discretion for any reason that it sees fit, including without reason and/or for breach of these Terms by the User. YBYNU will ordinarily advise the User of any suspension or revocation, however it is under no obligation to do so.
21.3. The User agrees that it shall only access and use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by YBYNU in its discretion.
21.4. All Users must be at least 18 years and/or a legal entity, represented by duly authorised representative thereof, capable of forming binding legal obligations.
21.5. YBYNU may limit or restrict access to the Platform from time-to-time as it sees fit, including (but not limited to):
21.5.1. Location. YBYNU may restrict access to the Platform for Users from any location and may restrict the sale or purchase of Sale Goods in any location in its absolute discretion;
21.5.2. Verifications. YBYNU may limit Users and access to the Platform where it cannot, in its absolute discretion, verify any of the information provided to it by Users.
21.5.3. Termination or restriction. In its sole discretion YBYNU may cancel or terminate the User’s participation of any use of the Platform or the Services, being entirely at the option discretion of YBYNU for any User to use or engage what dissipate in any or all of the services or operations of YBYNU, whether in Terms of the Platform or otherwise.
22. Intellectual Property
22.1. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
22.2. Proprietary Information. The Platform may use and incorporate software and other proprietary systems and Intellectual Property for which YBYNU has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any Intellectual Property or other third-party rights through the use of the Platform.
22.3. Platform. The User agrees and accepts that the Platform (including any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Platform) is the Intellectual Property of YBYNU and the User further warrants that by using the Platform the User will not:
22.3.1. Copy the Platform or the services that it provides for the User's own commercial purposes; and
22.3.2. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
YBYNU has common law and/or moral and/or registered rights in its names, logos and trademarks and the User shall not copy, alter, use or otherwise deal in any of the same without the prior written consent of YBYNU.
23.1. The User agrees that it uses the Platform at the User’s own risk.
23.2. The User acknowledges that YBYNU is not responsible for the conduct or activities of any User and that YBYNU is not liable for such under any circumstances or any errors or failures to execute offers on the Platform, including errors or failures caused by:
23.2.1. loss of connection to the internet or to the online software by any party;
23.2.2. a breakdown or failure of the software;
23.2.3. a breakdown or failure of any Seller's or Buyer's internet connection or computer;
23.2.4. any errors or omissions in connection with a sale process for Sale Goods;
23.2.5. generally in respect of any act or omission of YBYNU in Terms of any of the functions or operations envisaged in these Terms or arising for the matters contemplated herein.
Where the Platform contains links to other websites and resources provided by third parties, these links are provided to Users for information only, without any endorsement or warranty whatsoever from YBYNU. The User follows those links and/or enters those websites solely at the user's own risk and the user acknowledges that YBYNU has no control over and accepts no responsibility whatsoever for those websites or resources.
25. Registration and Password
25.1. The User shall provide accurate details and personal information pertaining to the User at the time of registration of the Platform and which shall include the full name, identity number and physical, postal and email addresses and telefax number of the User and such other information and particulars as YBYNU may require from time to time. As necessary YBYNU may require Users to update and provide information previously provided.
25.2. In its sole discretion, YBYNU may require Users to provide documentary evidence in relation to any of the Users’ particulars, including a certified copy of the User’s identity book.
25.3. The user is solely responsible for the use and security of its usernames and passwords which provide access to the Platform and must give prompt notice of any compromise or unauthorised access to these details. Each User must ensure and accept all liability for any breach of these Terms arising from access with its Username and password.
25.4. The User agrees to indemnify YBYNU for any loss, damage, cost or expense that YBYNU may suffer or incur as a result of or in connection with the User's access to, use of, or conduct in connection with the Platform, including any breach by the User of these Terms.
25.5. The User's indemnification of YBYNU generally and including the provisions of this clause, will survive the termination of these Terms and any use of the Platform.
26. Disclaimers regarding the Platform
26.1. Each User acknowledges and agrees that the Platform (including all content, function, materials and services) is provided "as is," without warranty of any kind, either express or implied, including any warranty for information, data, data processing services or uninterrupted access, any warranties concerning the availability, accuracy, completeness, usefulness, or content of information, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose.
26.2. YBYNU does not warrant that the Platform (or the function, content and/or Sale Products made available thereby) will be timely, secure, uninterrupted or error free, or that defects will be corrected. YBYNU makes no warranty that the Platform will meet Users' expectations or requirements. No advice, results or information, or materials whether oral or written, obtained through the Platform shall create any warranty not expressly made herein. If a User is dissatisfied with the Platform, the sole remedy is to discontinue using the Platform.
26.3. Any material downloaded or otherwise obtained through the use of the Platform remains at the discretion and risk of the User and the User will be solely responsible for any damages and/or losses and/or liabilities that results from the download of any such material and/or the use of the Platform.
26.4. YBYNU does not endorse, warrant or guarantee any Sale Products or services offered or provided by or on behalf of third parties on or through the Platform. YBYNU is not a party toany transaction between Users is merely the facilitator thereof and/or with third parties.
26.5. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms.
26.6. Use of the Platform pursuant to registration as well as the username and password allocated in terms of and arising therefrom is intended for, limited strictly to and solely and exclusively for each specific User concerned and no User may permit or allow any other person to utilise, operate, communicate or any manner participate in any of the functions, operations and purposes contemplated in these Terms and/or in respect of the Platform, such registration and consequent username and password allocated and arising terms of being intended and exclusively and solely limited to and for the use of the User concerned. Notwithstanding this, should any other person utilise, operate, communicate or any manner participate in any of the functions, operations and purposes contemplated in these Terms or on the Platform and/or conduct business or transact under and in terms of, with or without the consent or participation of the User concerned, such user is and shall be liable, responsible and the co-principal with such third party, legally bound for any acts or omissions of such third party, bound in solidum, as guarantor and surety and co- principal debtor, YBYNU being absolved and held harmless and free of commitment, liability and/obligation to any other User arising from or pertaining to and as a consequence of the erroneous and unauthorised by any third party, as contemplated above may arise therefrom.
27. Limitation Of Liability
In no event shall YBYNU or any of its suppliers, distributors, vendors, contractors, galleries, institutions, content or service providers be liable for any losses, claims or damages, whether direct or indirect, special, incidental, consequential, exemplary or punitive damages arising from or directly or indirectly related to the use of, or the inability to use, the Platform (or the information, content, materials and function related thereto), including loss of revenue, or anticipated profits, or lost or corrupted data, or lost business or sales, or cost of substitute services, even if YBYNU or such person has been advised of the possibility of such damages.
28. Disputes between YBYNU and/or between Users
Where a Dispute arises between YBYNU and a User, the following process shall apply:
If there is a dispute arises between YBYNU and any User arising out of these Terms (including the interpretation and application thereof), the purchase and sale of any Sale Goods, use of the Platform and/or anything related, pertaining, linked or arising herefrom, including the interpretation and application of this clause (“Dispute”), then within 10 business days of a party to the Dispute notifying the other party of a Dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions. The parties may in attempting to resolve the Dispute by way of negotiation and interaction, engage in mediation if so determined and prescribed by YBYNU or the other party to the Dispute. Any resolution of the Dispute shall be recorded in writing and signed by the parties (including by way of the exchange of emails) and then shall be final and binding upon the parties to the Dispute.
28.2. Court proceedings
A User may not commence court proceedings against YBYNU nor against any other user in relation to any Dispute until it has exhausted the User’s obligation to negotiate to resolve the Dispute in accordance with the provisions hereof. The relevant Terms pertaining to jurisdiction and applicable law are set out elsewhere in these Terms.
29. Disputes between Users
Where a Dispute arises between a Seller and a Buyer, concerning the sale of Sale Goods and/or any other Dispute, the following process shall apply:
29.1. Negotiation and Anonymity
In order to preserve the anonymity of the Users, any User with a claim that could give rise to legal action or may have a Dispute with another User shall forthwith contact YBYNU and notify YBYNU of the details and particulars of an relating to the Dispute, in writing, including by way of email. YBYNU shall endeavour to determine and resolve the Dispute between the parties by way of mediation. All parties are obliged to use all reasonable endeavours acting in good faith to resolve the Dispute by discussions, negotiation, interaction and communication. If, after a period of 30 days or such longer period as YBYNU may determine, the disputing parties are unable to resolve the Dispute, and either party is determined to pursue legal action, YBYNU will reveal the identity and particulars of both parties in order to facilitate resolution through the court system.
29.2. Failure to act in good faith.
If YBYNU determines, acting impartially and fairly but otherwise in its sole discretion, that a Party pursuing a legal claim either is not acting in good faith, and/or is pursuing a frivolous legal claim solely in order to determine the identity of the other Party, it shall refuse to reveal that identity and particulars and shall only do so by way of order of court. In such event, the other party to the Dispute and was particulars have been withheld, consents to service of any process at the registered office of YBYNU; provided that YBYNU shall not, in any circumstances, be a party to such proceeding
29.3. Court Proceedings
A User may not commence court proceedings against another User in relation to any Dispute until it has exhausted its obligation to resolve the Dispute in accordance with the preceding provisions, unless the party seeks appropriate injunctive or other interlocutory relief, pending the outcome of the Dispute resolution process to preserve property or rights or to avoid losses and/or damages.
30. Governing Law and Jurisdiction
30.1. These Terms, as well as the respective rights and obligations in Terms of, both as between YBYNU and any User and between Users themselves shall be governed by and construed and enforced in accordance with the laws of South Africa.
30.2. Each User expressly:
30.2.1. agrees that exclusive jurisdiction for resolving any claim or Dispute with YBYNU or in respect of any Dispute between Users themselves shall be the Gauteng Local Division of the High Court of South Africa, waiving and abandoning and renouncing the jurisdiction of any Magistrate’s Court;
30.2.2. Agrees that any claim or cause of action with respect to use of the Platform must be commenced within ays after the claim in respect of the issue in Dispute arises after which any such claim shall lapse and be unenforceable.
31. Prohibited User Conduct
Each User warrants and agrees that, while using the Platform and the various Services and features offered on or through the Platform, the User shall not:
31.1. impersonate any person or entity, whether actual or fictitious, or misrepresent affiliation with any other person or entity;
31.2. insert its own or a third party's advertising, branding or other promotional content into any of the Platform' content, materials or services, or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes without the prior written consent of YBYNU;
31.3. attempt to gain unauthorized access to other computer systems through the Platform;
31.4. engage in “spidering”, "screen scraping," "database scraping," harvesting of catalogue information, e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of property, Users or other information from or through the Platform;
31.5. obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means;
31.6. use the Platform or the services made available on or through the Platform in any manner with the intent to interrupt, damage, disable, overburden, or impair the Platform or such services, including sending mass unsolicited messages or "flooding" servers with requests;
31.7. use the Platform in violation of YBYNU or any third party's intellectual property or other proprietary or legal rights;
31.8. use the Platform in violation of any applicable law;
31.9. not to attempt (or encourage or support anyone else's attempt) to engage in any of the foregoing prohibited activities or to circumvent, reverse engineer, decrypt, disassemble, decompile or otherwise alter or interfere with the Platform or make unauthorized use thereof;
31.10. not use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of the Platform, nor obtain, use or access, or attempt to obtain, use or access, any materials or information through any means not intentionally made publicly available or provided for through the Platform.
32. Domicilium, notices and communications
32.1. YBYNU chooses domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the serving of any process and for any other purpose arising from or pursuant to these Terms, as follows Ground Floor,34 Andries Street, Wynberg, Johannesburg
32.2. The Users choose domicilium for the same purposes described above at the physical address provided by the User time of the User’s registration on the Platform.
32.3. YBYNU and Users shall be entitled from time to time, by written notice to the others, to vary the applicable domicilium to any other physical address within South Africa which and which may not be a post office box or poste restante: provided that any such change of domicilium will only become effective on the 7th business day after the delivery of such written notice to the other Party.
32.4. Any notice given to any party in terms of ("the addressee") which
32.4.1. is delivered by hand during the normal business hours of the addressee at the addressee's domicilium at the time shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the first Business Day after the date of delivery;
32.4.2. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by the addressee shall be regarded as an adequate written notice or communication to the addressee notwithstanding that the communication was not sent to to the addressee’s chosen domicilium.
32.5. Any notice in writing to be given in accordance with these Terms - save as otherwise provided for in this clause - shall include notice by way of email, to the following:
32.5.1. the email from YBYNU shall emanate from an official YBYNU email address with the prefix...@YBYNU.co.za; and
32.5.2. emails from Users shall be the designated email address provided by the User at the time of the registration on the Platform (or such other email address as YBYNU may acknowledge and recognise, in writing).
33. Contact Information
Fax: to be advised
Tel: 08000 YBYNU (92968)
In these Terms –
34.1. clause headings are used for convenience only and shall be ignored in interpretation of the Terms;
34.2. unless contrary to, or otherwise indicated by the context, an expression which denotes –
34.2.1. any gender shall include the other genders;
34.2.2. a natural person includes an artificial person and vice versa;
34.2.3. the singular includes the plural and vice versa;
34.3. unless a contrary intention clearly appears, the phrases and expressions bear the meanings assigned to them in the body of these Terms.
34.4. if any provision in a definition is a substantive provision, conferring rights, or imposing obligations on any party then, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of these Terms.
34.5. when any number of days is prescribed in this Agreement, same shall be calculated excluding the first day and including the last unless the last day falls on a day which is not a business day, in which event the last day shall be the next succeeding business day.
35. General legal provisions
35.1. Users may not assign nor otherwise cede or transfer the Users’ rights or obligations under these Terms and generally without the prior written consent of YBYNU, which may be withheld by YBYNU in its absolute discretion.
35.2. YBYNU may assign or otherwise cede or transfer its rights or obligations under these Terms and generally at any time and in its sole discretion, whether or not such assignment or cession or transfer comes to the notice of Users.
35.3. These Terms, as may change from time to time, supersede and replace any prior Terms and/or any other agreements, provisions, obligations as may exist between YBYNU and Users and constitutes the sole recordal, from time to time, of the legal obligations as well as the understandings between them.
35.4. There shall be no variation, alteration, modification, change or cancellation of any of these Terms, save as may be published and modified by YBYNU from time to time and as appear and published on the Platform, from time to time.
35.5. They will be no waiver, novation or alteration of any of YBYNU’s rights in accordance with these Terms save as may be reduced to writing by YBYNU.