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The contents of this weblink constitutes a binding agreement between the Seller of images on the PicFlick website (www.PicFlick.co.za) and the owners of the PicFlick website, being PicFlick (Proprietary) Limited (Company registration number 2018/348377/07). By clicking “agree” below, you agree to bind yourself to the contents below. In accordance with the Electronic Communications and Transactions Act (2002), by clicking “agree” you bind yourself to the terms and conditions as they appear below. Please read the contents set out below carefully as you will be deemed to have read and understood them as well as the legal implications of agreeing thereto. Any reference hereinbelow to ‘us, we, PicFlick, PicFlick (Proprietary) Limited or the PicFlick website is shall be deemed to include the directors, employees, managers, agents and assigns of PicFlick (Proprietary) Limited (Company registration number 2018/348377/07).
Any reference hereinbelow to ‘you, the Seller or yourself’ shall be deemed to include anyone who is in control of the image gallery of the Seller at any given time. Upon registration it is your responsibility to create a unique username and password upon your selection of your ‘photographer plan’, which you will utilise in all of your dealings on the PicFlick website. However, PicFlick bears no responsibility to verify or authenticate users of its website. It is your sole responsibility to ensure that you, or someone you trust is in control of your image gallery. Any image uploads of price adjustments to your gallery, shall be deemed to have been effected by you.
1.1. We respect your privacy and will take all reasonable measures to protect it, as more fully detailed below.
1.2. Should you decide to register as a Seller on the Website, we may require you to provide us with personal information which includes but is not limited to –
• First Name:
• Last Name:
• Company (where applicable):
• Social Media pages:
• Business Registration Number:
• Vat Number (where applicable applicable):
1.3. Should your personal information change, please inform us and provide us with updates to your personal information as soon as reasonably possible to enable us to update your personal information.
1.4. You may choose to provide additional personal information to us, in which event you agree to provide accurate and current information, and not to impersonate or misrepresent any person or entity or falsely state or otherwise misrepresent your affiliation with anyone or anything.
1.5. We will not, without your express consent use your personal information for any purpose other than as set out below:
• in relation to the ordering, sale and delivery of Goods;
• to contact you regarding current or new Goods or services or any other goods offered by us or any of our divisions and/or partners (unless you have opted out from receiving marketing material from us);
• to inform you of new features, special offers and promotional competitions offered by us or any of our divisions and/or partners (unless you have opted out from receiving marketing material from us); and
• to improve our product selection and your experience on our Website by, for example, monitoring your browsing habits, or tracking your sales on the Website; or
• disclose your personal information to any third party other than as set out below:
• to our employees and/or third party service providers who assist us to interact with you via our Website, email or any other method, for the ordering of Goods or when delivering Goods to you, and thus need to know your personal information in order to assist us to communicate with you properly and efficiently;
• to our divisions and/or partners (including their employees and/or third party service providers) in order for them to interact directly with you via email or any other method for purposes of sending you marketing material regarding any current or new goods or services, new features, special offers or promotional items offered by them (unless you have opted out from receiving marketing material from us);
• to law enforcement, government officials, fraud detection agencies or other third parties when we believe, in good faith, that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report or support the investigation into suspected illegal activity, or to investigate violations of these Terms and Conditions;
• to our service providers (under contract with us) who help with parts of our business operations (fraud prevention, marketing, technology services etc). However, our contracts dictate that these service providers may only use your information in connection with the services they perform for us and not for their own benefit;
• to our suppliers in order for them to liaise directly with you regarding any faulty Goods you have purchased which requires their involvement; and
• We are entitled to use or disclose your personal information if such use or disclosure is required in order to comply with any applicable law, subpoena, order of court or legal process served on us, or to protect and defend our rights or property.
• In the event of a fraudulent online payment, PicFlick is entitled to disclose relevant personal information for criminal investigation purposes or in line with any other legal obligation for disclosure of the personal information which may be required of it.
1.6. We will ensure that all of our employees, third party service providers, divisions and partners (including their employees and third party service providers) having access to your personal information are bound by appropriate and legally binding confidentiality obligations in relation to your personal information.
Ratings and Reviews:
When you provide a rating or review of Goods, you consent to us using that rating or review as we deem fit, including without limitation on the Website, in newsletters or other marketing material. The name that will appear next to that rating or review is your First Name, as you would have provided upon registration. If you do not agree to this, please do not put any ratings or reviews on the Website. We will not display your surname, nor any of your contact details, with a rating or review.
1.7. We will –
• treat your personal information as strictly confidential, save where we are entitled to share it as set out in this policy;
• take appropriate technical and organisational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access;
• provide you with access to your personal information to view and/or update personal details;
• promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information;
• provide you with reasonable evidence of our compliance with our obligations under this policy on reasonable notice and request; and
• upon your request, promptly return or destroy any and all of your personal information in our possession or control, save for that which we are legally obliged to retain.
1.8. We will not retain your personal information longer than the period for which it was originally needed, unless we are required by law to do so, or you consent to us retaining such information for a longer period.
1.9. PicFlick undertakes never to sell or make your personal information available to any third party other than as provided for in this policy.
1.10. Whilst we will do all things reasonably necessary to protect your rights to privacy, we cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosures of your personal information, whilst in our possession, made by third parties who are not subject to our control, unless such disclosure is as a result of our gross negligence.
1.12. This website makes use of “cookies” to automatically collect information and data through the standard operation of the Internet servers. “Cookies” are small text files a website can use (and which we may use) to recognise repeat users, facilitate the user’s on-going access to and use of a website and allow a website to track usage behaviour and compile aggregate data that will allow the website operator to improve the functionality of the website and its content, and to display more focused advertising to a user by way of third party tools.
1.14. If you do not disable “cookies”, you are deemed to consent to our use of any personal information collected using those cookies, subject to the provisions of this clause.
2. STOCK UP YOUR IMAGES
2.1. Stock Your Inventory (the gallery of images you wish to sell on the PicFlick website) by uploading your images to the PicFlick website.
2.2. Set the prices for your products and the quantity you want to sell. Only you may set and later manage the prices associated with the images in your gallery. PicFlick does not have the ability or authorisation to set the prices associated with your uploaded images, however, once a customer’s offer for one of your images has been accepted on the PicFlick website, you (the seller) will no longer be able to adjust the price of the image.
2.3. PicFlick provides tools to manage your inventory.
2.4. Display Your Products:
2.5. PicFlick displays your offers on Product Pages, Search and Browse
2.6. PicFlick provides you with an online Storefront.
2.7. Processes Your Orders:
2.8. Customers can add your products to the shopping cart.
2.9. PicFlick makes all of its payment options available for your products.
2.10. PicFlick picks, packs and ships your sold products to customers through its operational partners.
2.11. All outbound shipping costs are included in your fees. Shipping costs as well as packaging costs are set by our transactional and operational partners. These costs are added to the costs of your image. The PicFlick website will display the breakdown of costs associated with your image. Customers will be able to see:
• the price of the image;
• the cost associated with branding the image on to any of the available products/surfaces;
• the cost of the selected product/surface;
• the cost of delivery.
2.12. PicFlick handles the Customer Service aspect relating to your uploaded images and you hereby empower PicFlick as your duly appointed and authorised agent to discuss your image(s) with customers, deal with customer queries in respect of your image(s), refer customers to you directly, refund customers where PicFlick deems appropriate and take whatever action in relation to servicing PicFlick customers as it, in the circumstances deems necessary;
2.13. PicFlick handles all order related customer contacts;
2.14. PicFlick handles returns on your behalf in accordance with the returns policy, with which you are deemed to be familiar.
3. HOW SELLER GETS PAID:
3.1. Provide PicFlick with your bank account details, so we can disburse your available funds to you on a monthly basis:
• ACCOUNT TYPE:
• ACCOUNT NUMBER:
• BANK NAME:
• ABA ROUTING NUMBER:
• BANK ADDRESS:
• DESTINATION CURRENCY:
• ACCOUNT IBAN:
• ACCOUNT HOLDER NAME:
4. FEES PAYABLE BY SELLER TO PICFLICK ON A MONTHLY BASIS FOR THE USE OF THE WEBSITE AND OFFERINGS AS EXPLAINED IN THE LINK BELOW:
4.1. Basic Plan: $ 6 per Month (USD)
Billed month to month
PicFlick Commission 40%
One month free trial
4.2. Advanced Plan: $ 16 per Month (USD)
PicFlick Commission 20%
Receive marketing material
4.3. Premium Plan: $ 30 per Month (USD)
PicFlick Commission 15%
Receive marketing material
Receive monthly targeted advertising spend
4.4. Referenced link to the ‘Photographer Plans’:
5. TERMS AND CONDITIONS OF SALE
5.1. Register as a seller with PicFlick.
5.2. Upload your picture/image gallery/galleries on the PicFlick Website. Set prices for each picture/image.
5.3. Set prices for the purchase of each of your uploaded images for purchase by third party, end users of the PicFlick Website.
5.4. Observe your gallery in real time and watch as your images are selected for purchase.
5.5. You remain the owner of the image after such image has been uploaded to the PicFlick website. Neither the image itself nor the intellectual property associated therewith transfers from you to PicFlick (Proprietary) Limited at any time and for any reason whatsoever.
5.6. By uploading your image to the PicFlick website you hereby agree to appoint PicFlick (Proprietary) Limited as your duly authorised agent in rem suam in respect of the uploaded image(s).
5.7. Your appointment of PicFlick (Proprietary) Limited as your agent in this circumstances conveys upon PicFlick (Proprietary) Limited, the right, ability and power to:
• offer your image for sale to a customer at a price set by you;
• accept bids on your image by customers on your behalf;
• enter into contracts of sale on the terms and conditions as between PicFlick (Proprietary) Limited and the customer(s) for which you remain irrevocably bound;
• bind you to the return policy of any and all PicFlick retail and operational partners and affiliates;
• do whatever is deemed necessary in the circumstances to execute contracts of purchase and sale on your behalf in respect of your uploaded image;
• make and keep your image logged as “for sale” for as long as the image appears on the PicFlick website i.e. at any time in between the upload of the image and the image being removed from the PicFlick website by you;
• remove your image, without further cause, without conveying any notice to you and without prejudice to its rights, from the PicFlick website if the quality of the image does not meet the standard of quality as conveyed to you on the website;
5.8. If an image appears on your gallery, such image will, by default be “for sale” on the PicFlick website, meaning that it can be selected and purchased by end users (customers) of the PicFlick Website subject to the inventory availability.
5.9. If for any reason you wish to display an image, which is not “for sale” you will be able to mark that image accordingly. If an image is not marked “NOT FOR SALE” by you then such image is deemed for sale and, if the set purchase price is offered by the end user, a purchase and sale will occur.
5.10. A purchase and sale occurs when an end user selects your image and pays the purchase price, set by you, for the image on the PicFlick Website via one of the accepted methods of payment.
5.11. PicFlick will pay you the purchase price less any applicable fees payable by you to PicFlick as set out above, which will be performed on a monthly basis, subject to the PicFlick return policy.
5.12. The PicFlick Website is an online platform that facilitates the sale and purchase of digital images and pictures between sellers and end users. Sellers must ensure that the purchase price listed by them for any image is the correct purchase price – suitably adjusted for taxes (including Value Added Tax where applicable). Once the image is uploaded as available for purchase at a certain purchase price (set by the Seller), the Seller may not renege or cancel a valid sale on the PicFlick Website.
5.13. The uploading of an image and setting of a purchase price by a Seller constitutes an offer to end users as well as an authorisation to PicFlick (Proprietary) Limited to act as duly authorised agent of the Seller. Should an end user select and pay the purchase price to PicFlick, that will constitute acceptance of the offer, which forms a binding contract between the seller and the end user, which is facilitated by the PicFlick Website.
5.14. The seller is subject to the Return Policy on the PicFlick Website and ought to be familiar with the terms thereof:
6. CHANGES TO THESE TERMS AND CONDITIONS
6.1. PicFlick may, in its sole discretion, change any of these Terms and Conditions at any time. It is your responsibility to regularly check these Terms and Conditions and make sure that you are satisfied with the changes. Should you not be satisfied, you must not place any further orders on, or in any other way use, the Website.
6.2. Any such change(s) will only apply to your use of this Website after the change is displayed on the Website. If you use the Website after such amended Terms and Conditions have been displayed on the Website, you will be deemed to have accepted such changes.
7. DISCLAIMER & LIMITATION OF LIABILITY
7.1. The use of the Website is entirely at your own risk and you assume full responsibility for any risk or loss resulting from your use of the Website or reliance on any information on the Website.
7.2. Whilst PicFlick takes reasonable measures to ensure that the content of the Website is accurate and complete, PicFlick makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Website or as to the accuracy, completeness or reliability of any information on the Website. If any such representations or warranties are made by PicFlick’s representatives, PicFlick shall not be bound thereby.
7.3. PicFlick disclaims liability for any damage, loss or expenses, whether direct, indirect or consequential in nature, arising out of or in connection with your access to or use of the Website and/or any content therein unless otherwise provided by law.
7.4. Although Goods sold from the Website may, under certain specifically defined circumstances, be under warranty, the Website itself and all information provided on the Website is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement, as may be allowed in law.
7.5. Any views or statements made or expressed on the Website are not necessarily the views of PicFlick, its directors, employees and/or agents or assigns.
7.6. In addition to the disclaimers contained elsewhere in these Terms and Conditions, PicFlick also makes no warranty or representation, whether express or implied, that the information or files available on the Website are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, computer network, hardware or software in any way.
7.7. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or your hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of PicFlick, its employees, agents or authorised representatives. PicFlick thus disclaims all liability for any damage, loss or liability of any nature whatsoever and howsoever arising out of or in connection with your access to or use of the Website.
7.8. PicFlick cannot be held liable for any inaccurate information published on the Website and/or any incorrect prices displayed on the Website, save where such liability arises from the gross negligence or wilful misconduct of PicFlick, its employees, agents or authorised representatives.
7.9. PicFlick shall not be liable for any direct, indirect, incidental, special or consequential loss or damages which might arise from your use of, or reliance upon, the website or the content contained in or on the website; or your inability to use the website, and/or unlawful activity on the website and/or any linked third party website.
7.10. you hereby indemnify PicFlick against any loss, claim or damage which may be suffered by yourself or any third party arising in any way from your use of this website and/or any linked third party website.
8. GOVERNING LAW AND JURISDICTION
8.1 These Terms and Conditions and our relationship and/or any dispute arising from or in connection with these Terms and Conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa.
8.2. Your continued use of the Website will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from the use of the Website and any of these Terms and Conditions.
8.3. In the event of any dispute arising between you and PicFlick, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
8.4. Nothing in these Terms and Conditions limits your right to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
9.1. PicFlick hereby selects 105 Oxford Road Saxonwold Johannesburg, as its address for the service of all formal notices and legal processes in connection the use of the Website and these Terms and Conditions (“legal address”). PicFlick may change this address from time to time by updating these Terms and Conditions.
9.2. You hereby select the delivery address specified with your order as your legal address for the service of any notices/legal process in terms of any proceedings instituted in terms of the use of the Website and or these Terms and Conditions, but you may change it to any other physical address by giving PicFlick not less than 7 days’ notice in writing.
9.3. Notices must be sent either by hand, prepaid registered post, telefax or email and must be in English. All notices sent –
• by hand will be deemed to have been received on the date of delivery;
• by prepaid registered post, will be deemed to have been received 10 days after the date of posting;
• by telefax before 16h30 on a business day will be deemed to have been received, on the date of successful transmission of the telefax. All telefaxes sent after 16h30 or on a day which is not a business day in the Republic of South Africa will be deemed to have been received on the following business day; and
• by email will be deemed to have been sent on the date indicated on the “Read Receipt” notification. ALL EMAIL COMMUNICATIONS BETWEEN YOU AND US MUST MAKE USE OF THE “READ RECEIPT” FUNCTION to serve as proof that an email has been received.
10.1. PicFlick may, in its sole discretion, at any time and for any reason and without prior written notice, suspend or terminate the operation of the Website or the user’s right to access/use the Website or any of its contents subject to us processing any orders then already made by you.
10.2. You may not cede, assign or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party.
10.3. Any failure on the part of you or PicFlick to enforce any right in terms hereof shall not constitute a waiver of that right.
10.4. If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
10.5. No variation, addition, deletion, or agreed cancellation of the Terms and Conditions will be of any force or effect unless in writing and signed by or on behalf of the parties hereto.
10.6. No indulgence, extension of time, relaxation or latitude which any party (the “grantor”) may show, grant or allow to the other (the “grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee timeously and strictly which may have arisen in the past or which might arise in the future.
10.7. To the extent that any word, phrase or paragraph of this document is or becomes unlawful, null and void or unenforceable for any reason, to the extent possible, such unlawful, null and void or unenforceable word, paragraph or provision shall be excised from this document and the remaining words, paragraphs and provisions hereof shall remain of full force and effect.
These Terms and Conditions contain the whole agreement between you and PicFlick and no other warranty or undertaking is valid, unless contained in this document between the parties.