HOURSPACE SPACE SEEKER TERMS AND CONDITIONS
(“SPACE SEEKER TERMS”)
THESE SPACE SEEKER TERMS ARE EFFECTIVE AS OF: 1 July 2019
READ THESE SPACE SEEKER TERMS CAREFULLY BEFORE ENLISTING AS A SPACE SEEKER. YOUR CONTINUED USE OF THE WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE SPACE SEEKER TERMS. YOU CANNOT ENLIST AS A SPACE SEEKER IF YOU DO NOT ACCEPT THESE SPACE SEEKER TERMS. ALL SECTIONS OF THE SPACE SEEKER TERMS ARE APPLICABLE TO ALL SPACE SEEKERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
1.1. The Website is made available, and owned by TouchFoundry (Pty) Ltd t/a Hourspace (bearing registration number: 2012/169705/07) (hereinafter referred to as “the Company”, “Website”, “we”, “our”, “us” or “its”). Any reference to “the Company”, “we”, “our”, “us” or “its” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub- contractors, service providers and suppliers.
1.3. By utilising the Company Services after the Effective Date this will signify that the Space Seeker has read, understands, accepts, and agrees to be bound, and is bound, by these Space Seeker Terms in such Space Seeker’s individual capacity and/or for and on behalf of any entity that utilises the Company Services. Further, the Space Seeker represents and warrants that it has the authority to do so and that in the case of a Space Seeker being a natural person, the Space Seeker is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.4. To the extent permitted by applicable law, the Company may modify the Space Seeker Terms with prospective effect without prior notice to a Space Seeker, and any revisions to the Space Seeker Terms shall be noted within such Space Seeker Terms and will take effect when posted on the Website, unless a later date is otherwise stated in the revised Space Seeker Terms. The Company will however use its best endeavours to email any such amendments to the Space Seeker Terms to the Space Seeker prior to same coming into effect. A Space Seeker’s continued use of the Company Services will be construed as the Space Seeker consenting to the amended or updated Space Seeker Terms, and will be conditional upon the Space Seeker Terms in force at the time of use. The Space Seeker’s only remedy, should such Space Seeker not agree to these Space Seeker Terms, is to no longer make use of the Company Services.
1.5. The Company does not accept any Space Seeker, or representatives of a Space Seeker under the age of majority or who otherwise do not have the relevant capacity to be bound by the Space Seeker Terms, unless such Space Seeker has, through their parent or guardian, consented to the terms hereof.
In these Space Seeker Terms:
2.1. clause headings are for convenience purposes and are not to be used in its interpretation;
2.2. unless the context indicates a contrary intention, an expression which denotes:
2.2.1. any gender includes the other gender;
2.2.2. a natural person includes a juristic person and vice versa;
2.2.3. the singular includes the plural and vice versa;
2.3. the following expressions bear the meanings assigned to them below and cognate expression bear corresponding meanings;
2.3.1.“Commencement Date” means the date on which the Space Seeker registers on the Website;
2.3.2.“Company” means TouchFoundry (Pty) Ltd (Registration Number: 2012/169705/07) t/a Hourspace a private company duly incorporated in accordance with the company laws of South Africa, having its registered address at Unit 6, The Planet Art, 32 Jamieson Street, Gardens, Cape Town, Western Cape, 8001;
2.3.3.“Company Services” means the services provided by the Company to the Space Seeker as set out in paragraph 5 below;
2.3.4. “Party” or “Parties” means the Company or the Space Seeker, or both, as the context implies;
2.3.5. “Space” means the venue (or venues as the case may be) available to be rented out by a Space Owner on the Website;
2.3.6.“Space Owner” means the owner or curator of the Space, or the owner’s or curator’s duly authorised representative;
2.3.7.“Space Seeker Terms” means this Space Seeker Terms and Conditions;
2.3.8. “Space Seeker” means a natural person or a person duly authorised by an entity who rents or is looking to rent Space from the Space Owner through the Website. It also includes, by default, any user who simply browses the Website;
2.3.10. “Virtual Showroom” means the platform on the Website through which a Space Seeker may view the Space which a Space Owner has available for rental; and
2.3.11. “Website” means the website as owned, hosted and managed by the Company on which a Virtual Showroom is situated, and which Website can be found at the following URL:https://hourspace.co. Any reference to the Website shall automatically include the Virtual Showroom, as well as any software applications made available from time to time which permit the provision of the Company Services.
2.4. If any provision is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of the Space Seeker Terms.
2.5. Words and expressions defined in any clause shall, for the purpose of that clause, bear the meaning assigned to such words and expressions in such clause.
DURATION AND TERMINATION
3.1. The Terms shall commence on the Commencement Date and endure indefinitely, subject, without prejudice, to the right of either Party to terminate the Terms without notice on condition that all outstanding payments due by the Space Seeker have been made to the Company.
3.2. Notwithstanding the provisions contained in the Space Seeker Terms, the Company shall be entitled to terminate the Terms forthwith on written notice to the Space Seeker if the Space Seeker breaches the Space Seeker Terms.
REGISTRATION OF A SPACE SEEKER
4.1. Only a Space Seeker may make use of the Company Services insofar as the renting of Space from a Space Owner is concerned.
4.3. The Space Seeker shall thereafter be able to view all Virtual Showrooms on the Website.
5.1. The Company shall act as a facilitator between the Space Owner and the Space Seeker by:
5.1.1. permitting the Space Seeker to browse the Virtual Showrooms;
5.1.2. book a venue as offered by a Space Owner through the use of the Website; and
5.1.3. process all payments made by the Space Seeker in respect of the Space.
5.2. It is specifically recorded that the Company shall act only in accordance with the Company Services as set out above, and shall not in any manner be involved with or party to any arrangements made between the Space Owner and the Space Seeker relating to viewing of the Space and the like.
5.3. The Company shall further not be held liable, or be seen as an alternative Party in the event of either the Space Owner or the Space Seeker not honouring any of its undertakings timeously, correctly, in full or at all.
6.1. Registration on the Website by a Space Seeker shall be free of charge.
6.2. All payments in respect of the Space shall be made by the Space Seeker prior to the date on which the Space is to be rented, and shall be paid in full at the time of booking a Space on the Website, through the Website by one of the following methods:
6.2.1. Credit Card – where payment is made by credit card, we may require additional information in order to authorise and/or verify the validity of payment. The Space Seeker warrants that it is fully authorised to use the credit card supplied for purposes of paying for the Space. The Space Seeker also warrants that the credit card has sufficient available funds to cover the cost of the Space together with any ancillary charges (including but not limited to bank charges).
6.2.2. Instant Electronic Funds Transfer (if and when applicable).
6.2.3. Snapscan (if and when applicable).
6.3. We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
6.4. In receiving payment on behalf of a Space Owner the Company is not assuming the role of a bank, a registered financial institution, or portraying that it is in the business of providing money or financial services. The Company is merely processing these funds in its capacity as an agent for the Space Owner.
6.5. The Company shall further not be held liable for any claims financial or otherwise which a Space Seeker may have against the Space Owner.
6.6. In the event of a refund, such refund shall be made by the Company on behalf of the Space Owner only insofar as the Company may be in receipt of the equivalent amount of the refund from the Space Seeker, and in conjunction with the refund policy as agreed between the Space Owner and Space Seeker independent to these Space Seekers Terms.
UNDERTAKINGS BY THE SPACE SEEKER
7.1. The Space Seeker warrants that it shall not enter into any private negotiations with the Space Owner regarding the rental amount, or attempt to induce the Space Owner to bypass the Company in the provision of the Company Services.
7.2. Failure by a Space Seeker to uphold this undertaking will be deemed to be a breach of the Space Seeker Terms, and may, at the Company’s discretion, result in the termination of same.
8.1. The Space Seeker may not:
8.1.1. publish or mirror any of this Website’s material in any media whatsoever;
8.1.2. use the Website or the Company Services for any objectionable or unlawful purpose, including the posting of any threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or spam material or comments;
8.1.3. take any action that imposes an unreasonable or disproportionately large load on the Website’s infrastructure, including spam or other unsolicited mass e-mailing techniques;
8.1.4. mislead or deceive others through any act or omission or make a false representation about a Space Seeker’s identity, including the impersonation of a real or fictitious person or using an alternative identity or pseudonym;
8.1.5. conduct any activity which compromises or breaches another party’s patent rights, trademark, copyright or other intellectual property rights;
8.1.6. copy, collect or save information about other Space Seekers or Space Owners using the Website;
8.1.7. introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment to the Website or to other Space Seekers or Space Owners using the Website;
8.1.8. stalk or harass anyone;
8.1.9. attempt to disrupt or interfere with the Company Services as delivered through the Website;
8.1.10. use the details of other Space Seekers or Space Owners for anything other than the use expressly permitted by those Space Seekers or Space Owners;
8.1.11. download, access, use, harvest or download in bulk other Space Seeker’s or Space Owner’s details;
8.1.12. pass on a Space Seeker’s or Space Owner’s log in details to anyone other than the authorised user of that account;
8.1.13. remove or alter the Company’s copyright notices or other means of identification including any watermarks, as they appear on the Website;
8.1.14. use the Company Services contrary to applicable laws and regulations, or in any way may cause harm to the Website, or to any person or business entity;
8.1.15. use the Company Services to engage in any advertising or marketing other than in a manner expressly permitted by the Website;
8.1.16. crawl, spider or scrape the content of the Website, except to the extent required by recognised search engines (e.g. Google) for the purposes of indexing this Website; or
8.1.17. provide unauthorised interfaces to the Website.
8.2. The Space Seeker understands and agrees that it is solely responsible for compliance with any and all laws, rules, regulations and taxation obligations that may apply to its use of the Company Services.
8.3. Certain areas of this Website are restricted from being accessed by the Space Seeker, and the Company may further restrict access by a Space Seeker to any areas of this Website, at any time, in its absolute discretion.
9.1. Confidential information means any documents or information created, received or obtained from the Company, together with information relating to the Company as well as non-public information pertaining to the Company’s business (including, without limitation any related entities, the identity of the Space Owners or Space Seekers, and any content marked confidential or reasonably construed as being confidential due to its nature) (“Confidential Information”) which must remain strictly confidential.
9.2. The Space Seeker may not disclose, solicit, make available or misappropriate any Confidential Information, trade secrets or other proprietary information that belongs to any third party without that party’s prior written permission, or in violation of any express or implied duty or contractual right.
9.3. Where a Space Seeker is legally required to disclose the Confidential Information, it shall inform the third party who disclosed the Confidential Information of the requirement as soon as reasonably practicable and liaise with that party prior to disclosing any of that party’s Confidential Information.
9.4. The Space Seeker shall notify the Company immediately upon becoming aware of a suspected or actual breach of this obligation.
9.5. The Company will not disclose or make available to any third party, directly or indirectly, any Space Seeker’s Confidential Information, except where the Company has the Space Seeker’s permission, where the Confidential Information is already in the public domain (through no breach of the Space Seeker Terms), in furtherance of the Space Seeker’s use of the Company Services, to enforce all or any of the Space Seeker Terms or if legally compelled to do so.
PROTECTION OF DATA
10.1. The Company makes all reasonable efforts to ensure security on its systems. However, it cannot guarantee that Personal Information, alternatively any data uploaded onto the Website may not be accessed, disclosed, altered or destroyed by breach of the Company’s administrative, managerial and technical safeguards. Therefore, the Company urges the Space Seeker to take adequate precautions to protect its personal data and login details including never sharing its password with anyone.
11.1. The contents of the Website are the property of the Company. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website is that of the Company unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
11.2. Except as stated in the Space Seeker Terms, none of the contents of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without the prior written permission of the Company or the copyright owner, and further, should such consent be provided, the Company reserves its right to withdraw such consent at any stage, in its sole and absolute discretion.
11.3. All trademarks and copyrights, together with any other intellectual property rights, in and to any of the content of the Website, where not evidently that of the Space Seeker or a third party, are the exclusive property of the Company.
12.1. A Space Seeker undertakes not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Website including any algorithm used by the Company.
12.2. The Company owns or is licensed to use all intellectual property on the Website. A Space Seeker may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
LIABILITIES AND INDEMNITIES
13.1. Notwithstanding anything to the contrary, in no circumstances will the Company be liable for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising for any reason whatsoever, whether in delict, contract or otherwise.
13.2. The Company shall not be liable for delays, interruptions, service failures or other problems that may be caused as a result of the use of the internet and electronic devices and communications outside of its reasonable control.
13.3. Without limiting the generality of the foregoing, the Company makes no warranty that the Website will meet the Space Seeker’s requirements, or that the Company Services will be uninterrupted, timely, secure, error free or that defects in respect of the Company Services will be corrected, nor that it will be virus free.
13.4. The Space Seeker accepts that access to the Company Services, the Website and where applicable payments made in respect of the rental of Space may be restricted on occasion due to necessary updates and maintenance being carried out on the Website.
13.5. Except for any express warranties in the Space Seeker Terms, the Company Services and Website are provided on an “as is” basis and used at the Space Seeker’s own risk.
13.6. The Company makes no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of title, fitness for a particular purpose or non-infringement.
14.1. If either Party commits a breach of the Space Seeker Terms and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel the Space Seeker Terms and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
DISPUTE RESOLUTION BETWEEN THE SPACE SEEKER AND THE COMPANY
15.1. Any dispute which arises between the Parties in respect of these Space Seeker Terms shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
15.2. If the dispute cannot be resolved in accordance with the foregoing, the dispute shall be finally resolved in accordance with the rules of Arbitration Foundation of South Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA.
15.3. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
15.4. The arbitration referred to in clause 15.2 shall be held –
15.4.1. at Cape Town or other venue agreed by the parties in writing;
15.4.2. in English; and
15.4.3. immediately and with a view to its being completed within 21 (twenty one) days after it is demanded.
15.5. The Parties irrevocably agree that the decision in arbitration proceedings:
15.5.1. shall be final and binding upon them;
15.5.2. shall be carried into effect; and
15.5.3. may be made an order of any court of competent jurisdiction.
INFORMAL DISPUTE RESOLUTION BETWEEN SPACE OWNERS AND SPACE SEEKERS
16.1. The Space Seeker acknowledges that by using the Company Services, it shall engage in an informal dispute resolution process, in accordance with the terms set forth herein, in an attempt to resolve any dispute as cost effectively and as speedily as possible vis-à-vis a Space Owner and Space Seeker.
16.2. Should a Space Owner or Space Seeker wish to raise a dispute against a the other (a “Contract Dispute”), such dispute may be raised by email@example.com (the “Dispute Notice”). The Dispute Notice shall provide a brief description of the nature of the dispute and should include all information necessary to enable the Company to investigate the Contract Dispute.
16.3. The other party to the Contract Dispute shall then be invited to respond to the Dispute Notice with a brief description of his/her/its version of the Contract Dispute. The Company will then assess the merits of the Contract Dispute and attempt to informally resolve the Contract Dispute within 60 (sixty) days from the date of delivery of such Dispute Notice to the Company, which, if successful, will avoid the need for further action.
16.4. In the unlikely event that the Company is unable to resolve the Contract Claim within the aforesaid 60 (Sixty) days, the Space Owner agrees to resolve such Contract Claim in accordance with clause 15.2 to 15.5 mutatis mutandis.
NOTICES AND DOMICILIUM
17.1. The Company and the Space Seeker choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary, the following:
17.1.1. TouchFoundry (Pty) Ltd t/a Hourspace
Unit 6, The Planet Art
32 Jamieson Street
17.1.2. Space Seeker: The address as provided when registering on the Website.
17.2. Both the Space Seeker and the Company may change their domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (seven) days after receipt of notice of change of domicilium.
17.3. Any notice given in terms of these Space Seeker Terms shall be in writing and shall –
17.3.1. if delivered via email, be deemed to have been duly received on the date of dispatch;
17.3.2. if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery; and
17.3.3. if delivered by an internationally recognised courier service, be deemed to have been received by the addressee 3 (three) business days after dispatch.
17.4. Notwithstanding anything to the contrary contained in these Space Seeker Terms, a written notice or communication actually received by a Party from another shall be adequate written notice or communication to such Party.
18.1. No contract varying, adding to, deleting from or cancelling these Space Seeker Terms, and no waiver of any right under these Space Seeker Terms, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.
APPLICABLE LAW AND JURISDICTION
19.1. These Space Seeker Terms and the relationship between the Parties hereto shall be regulated entirely by the laws of the Republic of South Africa and, in the event of a dispute, the Parties hereto consent, at the Company’s sole and exclusive discretion to the jurisdiction of the Magistrate’s Court of South Africa.
21.1. These Space Seeker Terms are personal to the Company and the Space Seeker and the Space Seeker shall not be entitled to assign, transfer, alienate or otherwise dispose of all or any of its rights and/or obligations under these Space Seeker Terms.
22.1. If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Space Seeker Terms due to third party strikes or lock-outs, server downtime, black outs, riots, wars, sabotage, governmental laws, regulations or rulings, acts of God, fire, flood and other acts beyond the control of such Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party. Any Party invoking force majeure shall upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party.
22.2. If the event continues for a period of 30 (thirty) days, either Party may then give notice of termination of these Space Seeker Terms, which termination shall take effect 7 (seven) business days after the giving of the notice.
23.1. These Space Seeker Terms have been custom created for the Company by the good folks at Legal Legends www.legallegends.co.za.