WEBSITE TERMS OF USE

1. AGREEMENT BETWEEN USER AND PICFLICK

1.1. The PicFlick website is comprised of various web pages owned and operated by PicFlick.

1.2. The PicFlick website is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

1.3. Your use of the PicFlick website constitutes your agreement to all such terms, conditions, and notices.

1.4. Where referral is made to any execution partner or affiliate of PicFlick, your attention will be drawn to a separate Terms of Use employed by PicFlick’s execution partner(s) or affiliate(s). In order to participate on the PicFlick website and or accept a PicFlick offering, you may be obliged to accept the terms and conditions set forth by PicFlick’s execution partner(s) or affiliate(s).

1.5. PicFlick’s execution partner is a party associated with PicFlick, who has the infrastructure, expertise, licensing and capacity to execute your orders on the PicFlick website. When you buy or sell photographic images on the PicFlick trading platform and or purchase related products, such as any product on which photographic imagery will be printed, it is PicFlick’s execution partner that executes (in whole or in part) your order. You will pay any moneys due owing and payable from your purchases and receive any monies due and owing from your sales to PicFlick.

1.6. Where the user is a photograph seller, the user must familiarise him/herself with the Seller’s Conditions of Sale, which are located on the PicFlick website.

1.7. Where the user is a photograph purchaser, the user must familiarise him/herself with the Purchaser’s Conditions of Sale, which are located on the PicFlick website. By clicking “agree” in the Purchaser’s Conditions of Sale section, the photograph purchaser is entering into a binding contract with PicFlicks in the terms and on the conditions set out therein.

1.8. Additionally, where the user is a photograph purchaser and such user wishes to purchase a product on which the photographic image is to be printed, the user must click on the section labelled printing option. The printing option section of the PicFlick website informs the user how to order prints of their chosen photographic image on their chosen surface. By selecting a printing option in the section, the user enters into a binding contract with PicFlick’s in respect of the applicable terms on which photographic imagery will be embossed on the surface of the user’s choice and delivery of the final product to the user.

1.9. Any banking details into which the user is required to deposit funds, for the purchase of photographic imagery and any ancillary objects, shall be the banking details of PicFlick.

1.10. The provisions relating to PicFlicks execution partner and affiliates are separate and distinct from what is set out below in respect of Linked Sites.

2. MODIFICATION OF THESE TERMS OF USE

2.1. PicFlick reserves the right to change the terms, conditions, and notices under which the PicFlick website is offered, including but not limited to the charges associated with the use of the PicFlicks website.

3. LINKS TO THIRD PARTY SITES

3.1. The PicFlick website may contain links to other websites (“Linked Sites”).

3.2. The Linked Sites are not under the control of PicFlick and PicFlick is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site.

3.3. PicFlicks is not responsible for webcasting or any other form of transmission received from any Linked Site. PicFlick is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by PicFlick of the site or any association with its operators.

4. NO UNLAWFUL OR PROHIBITED USE

4.1. As a condition of your use of the PicFlick website, you warrant to PicFlick that you will not use the PicFlick website for any purpose that is unlawful or prohibited by these terms, conditions, and notices.

4.2. You may not use the PicFlick website in any manner which could damage, disable, overburden, or impair the PicFlick website or interfere with any other party’s use and enjoyment of the PicFlicks website.

4.3. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the PicFlicks website.

5. USE OF CREDIT AND DEBIT CARDS

5.1. Whenever you are required to make a payment on the PicFlick website in respect of your account or receive any payment for any and all transaction activities on the PicFlicks website, the acceptance of payment by credit or debit card shall be subject to the terms and conditions of use set forth by the PicFlicks execution partner(s) who govern banking transactions on the PicFlick website.

5.2. If the PicFlick execution partner(s) agrees to accept payment by credit card or debit card, payment may be processed online through the PicFlicks execution partner’s website by means of entering your credit or debit card details for authorisation.

5.3. Only funds received net of any bank charges will be credited to your account.

5.4. PicFlick has taken all possible measures to ensure that all transactions processed through PicFlick’s execution partner(s) is safe and secure, however, you must ensure that you are satisfied with the security measures installed and enforced by the PicFlick execution partner(s) before trading on the PicFlick trading platform.

5.5. Unless otherwise specified in the terms and conditions of the applicable PicFlick execution partner(s) (as published on the PicFlick website), you will be responsible for payment of the transaction fees, levied by the PicFlick execution partner, arising from your use of a credit card or debit card to make payment.

5.6. We cannot guarantee that the PicFlick website will always be available. In particular, we do not warrant continued availability or uninterrupted access to the PicFlick website.

5.7. Users of the PicFlick website hereby indemnify PicFlick against any losses, damages, costs, fees, charges or liabilities which the user may incur as a result of any delay or inability to effect an online credit or debit card payment to the PicFlick execution partner caused by the website being unavailable or inaccessible (whether temporarily or permanently).

5.8. Where users are unable to effect an online credit or debit card payment on the PicFlick website to the PicFlick execution partner(s) for any reason, users are obliged to satisfy their payment obligations to the PicFlicks execution partner(s) using another means of payment acceptable to them (for example, electronic funds transfer, cash deposit or cheque where acceptable).

5.9. User personal information and credit card details will be kept in the strictest confidence by PicFlick and its execution partner(s). PicFlick undertakes that its execution partner(s) has/have taken all reasonable precautions to secure the credit card and debit card processing that is carried out online. However, neither PicFlick, nor its execution partner(s) will be held responsible for security breaches occurring on your electronic device (personal computer or other electronic device used to browse either the PicFlicks website or the website of PicFlick’s execution partner(s) or effect online payments), which may result due to the lack of adequate virus protection software or spyware that you may inadvertently have installed on your device.

5.10. PicFlick’s execution partner is an authorised financial services provider and as such is required, under the Financial Intelligence Centre Act, 2001 (FICA) to take steps towards the prevention of money laundering. PicFlick therefore needs to verify each customer’s identity and, before we open a user account with our execution partner(s), PicFlick will request such information as it considers necessary to verify user identity.

5.11. As part of our anti-money laundering obligations under FICA, we may monitor funds moving into and out of your PicFlick account, and provide reports of any suspicious movements of funds, for example funds deposited into your PicFlick account, and then removed, to the Financial Intelligence Centre.

5.12. We also reserve the right to close a user’s account if we have reason to believe that the user is depositing and withdrawing funds from the user’s PicFlick account (whether by means of credit or debit card transaction or other payment method) for any purpose other than trading with PicFlick and further to levy a penalty of 2.5% (excluding VAT) on all deposits and withdrawals which we deem to be made other than for purposes of trading with us.

6. USE OF COMMUNICATION SERVICES

6.1. The PicFlicks website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:

6.1.1. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;

6.1.2. Publish post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information;

6.1.3. Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents;

6.1.4. Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer;

6.1.5. Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages;

6.1.6. Conduct or forward surveys, contests, pyramid schemes or chain letters;

6.1.7. Download any file posted by another user or a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner;

6.1.8. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;

6.1.9. Restrict or inhibit any other user from using and enjoying the Communication Services;

6.1.10. Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.

6.1.11. Harvest or otherwise collect information about others, including e-mail addresses, without their consent.

6.1.12. Violate any applicable laws or regulations.

6.2. PicFlick has no obligation to monitor the Communication Services. However, PicFlick reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion.

6.3. PicFlick reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.

6.4. PicFlick reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in PicFlicks’ sole discretion.

6.5. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service.

6.6. PicFlick does not control or endorse the content, messages or information found in any Communication Service and, therefore, PicFlick specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service.

6.7. Managers and hosts of the Communication Services are not authorized PicFlick spokespersons, and their views do not necessarily reflect those of PicFlick.

7. MATERIALS PROVIDED TO OR POSTED ON ANY PICFLICK WEBSITE

7.1. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.

7.2. PicFlick does not claim ownership of the materials you provide to PicFlick (including feedback and suggestions) or post, upload, input or submit to any PicFlick website or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting PicFlick, its affiliated companies and necessary sub-licensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to:

7.2.1. copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and

7.2.2. to publish your name in connection with your Submission.

7.3. No compensation will be paid with respect to the use of your Submission, as provided herein.

7.4. PicFlick is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in PicFlicks’ sole discretion.

7.5. By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

8. LIABILITY DISCLAIMER

8.1. The information, software, products, and services included in or available through the PicFlicks website may include inaccuracies or typographical errors. Changes are periodically added to the information herein.

8.2. PicFlick and/or its suppliers, affiliates and or its execution partner(s) may make improvements and/or changes in the PicFlick website at any time. Advice received via the PicFlick website should not be relied upon for personal, legal, tax or financial decisions and you should consult an appropriate professional for specific advice tailored to your circumstances.

8.3. PicFlick and/or its suppliers and or its execution partner(s) make no representations about the suitability, reliability, availability, timeliness, and accuracy of the information, software, products, services and related graphics contained on the PicFlick website for any purpose.

8.4. To the maximum extent permitted by applicable law, all such information, software, products, services and related graphics are provided “as is” without warranty or condition of any kind.

8.6. PicFlick and/or its suppliers hereby disclaim all warranties and conditions with regard to this information, software, products, services and related graphics, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

8.7. To the maximum extent permitted by applicable law, in no event shall PicFlick and/or its suppliers, affiliates and or execution partner be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the PicFlick website, with the delay or inability to use the PicFlick website or related services, the provision of or failure to provide services, or for any information, software, products, services and related graphics obtained through the PicFlicks website, or otherwise arising out of the use of the PicFlicks website, whether based on contract, delict, negligence, strict liability or otherwise, even if PicFlicks or any of its suppliers or its execution partner(s) has/have been advised of the possibility of damages.

8.8. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to some users. If any user is dissatisfied with any portion of the PicFlicks website, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the PicFlick website.

8.9. SERVICE CONTACT: info@picflick.co.za

9. TERMINATION/ACCESS RESTRICTION

9.1. PicFlick reserves the right, in its sole and absolute discretion, to terminate user access to the PicFlicks website and the related services or any portion thereof at any time, without notice.

10. GENERAL

10.1. These terms of use will be governed and construed in accordance with the laws of the Republic of South Africa without reference to any conflict of law provisions and you agree that the South African courts shall have exclusive jurisdiction to determine any matter or dispute in connection with or arising out of the PicFlicks website and these terms of use.

10.2. You agree that no joint venture, partnership, contract of employment, or agency relationship exists between the user and PicFlick as a result of these Terms of Use or use of the PicFlicks website.

10.3. PicFlicks’ performance under these terms of use is subject to existing laws and legal process, and nothing contained in these terms is in derogation of PicFlicks’ right to comply with governmental, court and law enforcement requests or requirements relating to your use of the PicFlicks website or information provided to or gathered by PicFlick with respect to such use.

10.4. If any part of these terms are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms shall continue in full legal effect.

10.5. Unless otherwise specified herein, these terms constitute the entire agreement between the user and PicFlicks with respect to the PicFlicks website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and PicFlicks with respect to the PicFlicks website.

10.6. A printed version of these terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

10.7. It is the express wish of the parties that these terms and all related documents are drawn up in English.

11. INTERCEPTION AND MONITORING

11.1. You agree that your communications on the PicFlick website may be intercepted, as defined in the Regulation of Interception of Communications Act 70 of 2002 (as amended), by the owner of this website or any other competent authority.

12. PRIVACY

12.1. Your use of the PicFlick website is further subject to the provisions contained in the Privacy Policy published on the PicFlick website and mobile application.

13. COPYRIGHT AND TRADEMARK NOTICES

14. TRADEMARKS

14.1. The materials available through the PicFlicks website and other websites owned or provided by PicFlick are the property of PicFlick or its licensor(s), and are protected by copyright, trademark and other intellectual property laws.

14.2. You may view, copy and print pages from the PicFlick website only:

14.2.1. for personal use, provided that you uphold all copyright, trademark, and other proprietary rights or notices, or

14.2.2 for communicating with PicFlick about a company product or service.

14.3. You may not otherwise use, reproduce, download, store, post, broadcast, transmit, modify, sell or make available to the public content from the PicFlicks website without the prior written approval of PicFlick.

14.4. Any rights not expressly granted herein are reserved.