Terms of Use – Buyer

1. These terms and conditions (Terms) guides the users (you) of the Foodmark website (www.Foodmark.ng) (Site) and mobile applications (including iPhone, Android and Web applications) (Apps) (together, the Services).

Binding Terms

1. By using the Services, you represent and warrant to us that you have legal capacity to enter into these Terms, that you have read and understood the Terms and agree to be bound by them. If you do not agree to be bound by the Terms, do not use the Services.
2. These Terms may be changed by us from time to time. The first time you use the Services after such changes are implemented you will be required to agree to the revised Terms. Your ongoing use of the Services will be subject to the revised Terms and your acceptance of them.

Definitions

1. In these Terms, the following definitions will apply:

• Apps has the meaning set out in clause 1.
• Delivery Fee means the fee charged by the Vendor to you in consideration of delivering the Goods to you as specified and set out on the Vendor’s Shop.
• Goods means any item purchased by you via the Services including, without limitation, fresh produce, dry goods, condiments and other food products.
• Price means the sale price of Goods (excluding the Delivery Fee and VAT).
• Vendor means a person who sells Goods via the Services.
• Vendor’s Shop means the Vendor’s virtual portal on the Services where the Vendor advertises and sells Goods.
• Services has the meaning set out in clause 1.
• Site has the meaning set out in clause 1.
• Terms has the meaning set out in clause 1.
• You, has the meaning set out in clause 1.
• we or us has the meaning set out in clause 1.

Your Account

1. In order to use the Services, you need to create an account.
2. To open an account, you need to:

• be over 18 years of age;
• provide accurate information;
• answer all questions asked by us truthfully and completely.

1. You will be responsible for your account and all activity on it including any access by a third party using your log in details.
2. If you are creating an account on behalf of a business entity, you guarantee that you have the authority to agree to these Terms on behalf of the business entity.

Use of the Services

1. In consideration of you agreeing to these Terms and paying all amounts owing to us in accordance with these Terms, we grant you a non-exclusive, non-transferable, revocable licence to use the Services in accordance with these Terms.
2. You acknowledge and agree that:

• Nothing in these Terms constitutes a transfer/assignment of our intellectual property rights to you;
• We own or are licensed all intellectual property rights in or used in relation to the Services (including without limitation all software, images, texts, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio and video) (Our IP);
• You must not directly or indirectly do anything (or allow anything to be done) that would or might invalidate or put in dispute our ownership or license in respect of Our IP; and
• You must not copy, reproduce, transmit, display, perform, publish, adapt, edit or create derivate works from any of Our IP.

1. Your permitted use of the Services is restricted as follows:

• You must not violate any laws (state, federal or international) in connection with your use of the Services.
• Without limiting the foregoing, you must:
• not engage in fraud, theft, anti-competitive conduct, threatening conduct or other unlawful acts or crimes;
• pay for all Goods you buy via the Services;
• pay any applicable taxes for any Goods and delivery services you buy via the Services;
• not interfere with or disrupt the Services;
• not use the name “Foodmark” or any other of our marks, phrases, logos or designs which we use in connection with the Services without our prior written consent;
• not attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Services;
• not create derivative works of the Services of any kind whatsoever;
• not publish or link to offensive, objectionable or malicious content (including content that may damage or interfere with browsers or privacy);
• not access, tamper with or use non-public systems of the Services (including our systems and the technical delivery systems to our providers and/or users);
• not probe, scan or test the vulnerability of any system or network or breach or circumvent any security or authentication measures (including features designed to prevent and/or restrict the use and/or copying of software);
• not access or search (or attempt to) the Services by any means (automated or otherwise) other than through the currently available published interface we provide;
• not use our Services for spamming;
• not use web crawler software on the Services without our prior written consent (which may be withheld in our absolute discretion);
• not use web scraping software on the Services without our prior written consent (which may be withheld in our absolute discretion);
• not forge TCP/IP information;
• not interfere with or disrupt (or attempt to do so) user, host, network or third-party provider access to the Services (including without limitation by sending a virus, overloading, flooding, spamming, mail bombing or scripting user content in a manner which interferes with the Services); and
• not use the Services except for their intended purpose, as determined by us, from time to time.

1. You acknowledge and agree that:

• we retain complete editorial control over the Services and may alter, amend or cease the operation and/or functionality of any part of the Services at any time (in our sole discretion);
• we may upgrade the Services to add support for new functions and services and you consent to receiving automatic upgrades of the Services;
• we do not warrant that the Services are (or will continue to be) compatible with your device;
• we may, but are not obliged to, undertake any type of investigation, vetting process or due diligence about any user of the Services (including any Buyer or Vendor). In the event that we do undertake one of the aforementioned activities, we are not obliged to advise you of the outcome;
• the Services may not operate on a continuous basis, may be unavailable from time to time (including for maintenance purposes) or be permanently suspended or terminated; and
• the Services may contain links to other websites as well as content added by other users and third parties and we do not endorse, sponsor or approve such user generated content or any content available on linked websites.

1. You are responsible for the content (including but not limited to names, photos, videos, product or service descriptions, reviews and comments) (Your Content) you (and any authorised or unauthorised user of the Online Services from your account) upload, publish, display, link or otherwise make available via the Services or any third-party website connected to the Services.
2. You grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, publish, store and prepare derivative works of Your Content to provide and promote the Services. You also waive any moral rights you have in respect of Your Content. This licence will survive termination of the Terms.
3. You may not post any of Your Content:

• which does not comply with all relevant laws;
• that is false, misleading or deceptive;
• that is offensive, objectionable, inappropriate or defamatory (as determined by us in our sole discretion);
• that would bring us, or the Services into disrepute;
• that infringes third party intellectual property rights.

1. In respect of Your Content, you represent and warrant to us that you:

• have the right to use and upload Your Content to the Services;
• neither your nor our use of Your Content will infringe any third-party intellectual property rights;
• all of Your Content will be lawful in every regard; and
• you will not claim any fees, payments or royalties from us.

Indemnity

1. You agree to indemnify (and keep indemnified) us and our employees, agents, assigns and third-party providers against any claim, liability, loss, damage, cost, debt or expense we or they suffer including (but not limited to) any claim for loss and/or damages by any third party and our legal costs arising from:

• any negligent, willful or otherwise wrongful acts or omissions by you or any of your employees, agents or representatives;
• the death of, or personal injury to, or damage to any property belonging to any person including, but not limited to, a Vendor or any of the Vendor’s employees, agents or contractors, to the extent caused by any of your (or your employees, agents or contractors) acts or omissions;
• any claims, demands, and damages arising out of disputes with other users or Vendors;
• your use of and/or access to the Services;
• unauthorised use of the Services from your account;
• your breach of these Terms;
• your breach of the requirements of our third-party providers;
• any allegation of infringement of any third-party rights (including third party intellectual property rights) in relation to your use of the Service;
• your failure to comply with any law;
• Your Content.

Payment

1. Once you have selected the Goods you wish to purchase you will be directed to PayPal to complete payment of the Price, Delivery Fee and any applicable VAT/TAX.
2. The processing time for your payment may vary.
3. If there are insufficient funds in your bank account when the provider processes the payment for your purchase, we reserve the right to contact you directly and to seek payment.
4. We may share your personal or transactional information with third-party service providers (e.g. PayFast) if necessary to process payments.
5. We have engaged third-party service providers to perform many of the services related to payment processing, including card processing, currency exchange, identity verification, fraud analysis and regulatory compliance.
6. By using a third-party service, you may also be subject to an agreement with the third-party and you must comply with the terms of such agreement.
7. We reserve the right to decline transactions that we believe to be high risk, fraudulent, or in violation of these Terms.

VAT

1. If the Vendor makes a supply under or in connection with these Terms and is liable by law to pay VAT on that supply, unless the consideration is expressly said to include VAT the consideration otherwise payable by the Buyer will be increased by an amount equal to the VAT paid or payable by the Vendor.
2. In addition to clause 22 above, the Vendor must issue a valid tax invoice to the Buyer for any supply for which the Vendor may recover VAT from Buyer under these Terms.

Refund and Exchange

1. Terms and conditions regarding refunds of the Price and exchange of Goods will be set out on the Vendor’s Shop.
2. Each Vendor may have varying terms and conditions regarding refunds and exchange.
3. Any disputes, issues or queries arising under clauses 27 and 28 must be dealt with pursuant to clauses 30, 31 and 32.

Dispute

1. If a dispute arises between you and a Vendor relating to or arising out of the Goods, the Services or these Terms, including its construction and effect, the rights and obligations of you or the Vendor, the performance, breach, rescission or termination of these Terms, any claim for refunds and exchange, any entitlement to damages or compensation (whether for breach of contract, tort or any other cause of action) or the amount of that entitlement (Dispute), you must use reasonable endeavours to resolve the Dispute in good faith directly with the Vendor.
2. You expressly acknowledge that any and all Disputes are between you and the Vendor alone and not with us.
3. You indemnify us in respect of any and all claims relating to Disputes.

Exclusion of Liability

1. For the purpose of clauses 33 to 38 (inclusive), Covered Party means us, our affiliates, and any officer, director, employee, subcontractor, agent, or assign of us or our affiliates.
2. We provide the Services as a venue for you to purchase Goods. It is important to note that we are not part of that transaction.
3. You agree and acknowledge that:

• you are not buying Goods from us, but from one of the many Vendors via the Services;
• we are not responsible for any refund of the Price or exchange of the Goods;
• we do not pre-screen Vendors, edit content uploaded by users of the Services or test any of the Goods;
• we do not endorse any Vendor;
• we do not provide any guarantees or warranties with respect to the Goods or the content uploaded to the Service by users including, without limitation, warranties or guarantees relating to the quality, safety or legality of any Goods or accuracy of any representations; and
• we do not warrant or guarantee that the Vendor is entitled to sell the Goods.

1. The Services are provided on an “as is” and “as available” basis and unless stated to the contrary in these Terms, to the maximum extent permitted by law, we exclude all representations, warranties or guarantees whether express or implied, by statute or otherwise, including (without limitation) that the Services are of merchantable quality or fit for their intended use, that content is accurate, reliable or correct, that the Services will be available at a particular time or location/venue, that the Services will be uninterrupted and secure, that any defects or errors will be corrected or that the Services are free of viruses or harmful components. Use of the Services is at your own risk and you will be solely responsible for any damage or loss including (but not limited to) damage/loss to your computer/systems.
2. To the extent permitted by law (excluding statutory warranties that cannot be excluded), you release us from any and all liability arising from the Services including (without limitation) in relation to:

• any and all claims related to Goods sold via the Services, including for delay in delivery, defective items, misrepresentations by Vendors and or items that cause personal injury, death or property damage;
• refunds of the Price or exchanges of Goods;
• content posted by other users of the Services;
• the availability of the Services;
• unauthorised use (by you or a third party) of the Services;
• any loss of data, interruption of business or any consequential or incidental damages;
• all representations, warranties or terms (whether express or implied) other than those expressly provided in these Terms;
• your use of the services provided by third party provider;
• your internet network.

1. To the maximum extent permitted by law, the aggregate liability of Covered Parties whether for breach of these Terms, in tort (including negligence) or for any other common law or statutory cause of action shall be the lesser of your actual direct damage or the amount you paid for the Services in the 12 month period immediately preceding the date the claim arose.
2. The Covered Parties shall not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including without limitation, legal fees) in any way due to, resulting from, or arising in connection with the Services or the failure of any Covered Party to perform its obligations, regardless of any negligence of any Covered Party.

Termination

1. You may terminate your account at any time by contacting us via our contact details available on the Site.
2. We may terminate or suspend your account and your access to the Services at any time, for any reason, and without advance notice.
3. If your account is terminated, you may lose any information associated with your account.
4. We reserve the right to change, suspend, or discontinue any of the Services at any time, for any reason. We will not be liable to you for the effect that any changes to the Services may have on you, including your income or ability to generate revenue through the Services.

Notifications

1. We will, from time to time, provide notifications whether for legal, marketing or other business-related reasons. Such notices will be either posted on the Services or provided directly to you by email, sms or mail. We reserve the right to determine the form and means of providing notice to you. Please note, you may opt out of some of the notifications depending on their purpose.

Miscellaneous

1. These Terms comprise the entire agreement for the provision of the Services to the exclusion of any express or implied term, whether expressed orally or in writing, including any conditions, warranties and representations and supersedes all previous terms and conditions, undertakings, agreements and correspondence regarding the Services.
2. The failure of us or any third-party provider to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
3. These Terms are governed and shall be construed in accordance with the laws of South Africa and the parties submit to the non-exclusive jurisdiction of the Courts of that state.
4. If part or all of any clause of these Terms is illegal, unenforceable or void it will be severed from these Terms and will not affect the continued operation of the remaining provisions of these Terms.