THE MEDIA SHACK TERMS OF SERVICE

These Terms of Service are effective as of: 1 January 2020 Effective Date
READ THESE TERMS OF SERVICE CAREFULLY BEFORE BROWSING THIS WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS OF SERVICE. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE. ALL SECTIONS OF THESE TERMS OF SERVICE ARE APPLICABLE TO ALL USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.

1. Introduction

      1. The website, http://www.themediashack.co.za (“the Website”) is operated by TMS The Media Shack (Pty) Ltd t/a The Media Shack (bearing registration number: 2015/341928/07) (hereinafter referred to as "The Media Shack", "we", “our" or "us"). The Terms herein are entered into by and between The Media Shack and the User. Any reference to "The Media Shack", "we", "our" or "us", shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
      1. These Terms of Service, including any document incorporated by reference herein, including, but not limited to the Privacy Policy (collectively, the "Terms") apply to any User who uses any one or more of the Services, accesses, refers to, views and/or downloads any information or material made available on the Website for whatever purpose (hereinafter referred to as “User”, "you" or "your").
      1. Accessing and/or use of the Website after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by the Terms, in your individual capacity and for and on behalf of any entity for whom you use the Website. Further, you represent and warrant that you have the authority to do so and that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
      1. To the extent permitted by applicable law, we may modify the Terms, and the User shall be advised of such modifications by email upon such modifications being effected.  All revisions to the Terms shall further be noted within such Terms and will take effect on the date advised in the email unless a later date is otherwise stated in the revised Terms and Conditions.

2. Terminology

    1. Browser” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website and who has no intention, or has not as yet, made us of the Services offered by us;
    1. Business Days” shall mean any days which are not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa;
    1. Business Hours” shall mean between the hours of 08H00 – 16H30 from Monday to Fridays;
    1. Corporate Account” shall mean the credit facility which may be applied for by a User which is a company, close corporation or any other business entity;
    1. Fee” shall mean the final fee as payable by the User to us in respect of the Services rendered, together with VAT and courier fees, if applicable;
    1. Log in Details” shall mean the User’s unique username and password used to access the Services;
    1. Material Design” shall mean the design or artwork as uploaded by a User, which is intended to be printed by us in accordance with the Services;
    1. Party” or Parties” shall mean The Media Shack and/or or the User as the context implies;
    1. Personal Information” shall mean the Personal Information as required from the User in order to register for the Services;
    1. Products” shall mean:
      1. items as available for purchase on the Website on which a Material Design may or may not be printed, at the election of the User; and
      1. downloadable design templates.
    1. Registration Process” shall mean the Registration Process to be followed by a Browser on our Website in order to enable them to use the Services and thus make the transition from a Browser to a User;
    1. Services” shall mean the Services provided by us to the User as set out in clause 4 below;
    1. Terms” shall mean these Terms of Service, found at www.themediashack.co.za/terms as read together with the Privacy Policy, which may be found at www.themediashack.co.za/privacy;
    1. User” shall mean the Browser who completes the Registration Process on the Website in order to make use of the Services, whether a natural person acting on its own behalf, or on behalf of a company, close corporation or any other business entity; and
    1. Website” shall mean the website situate at www.themediashack.co.za as owned, hosted and managed by us on which Products may be purchased and Services rendered.
    1. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.

3. Your agreement to these Terms

    1. Subject to, and on the basis of a User’s acceptance of the Terms, we grant to you a limited, revocable, non-transferable license to access and use the Website in accordance with the various policies and agreements which may govern such use and access.

4. Description of our Services

    1. We provide a Website on which a User may:
      1. purchase Products on which Material Designs may or may not be printed dependant on the User’s election;
      1. purchase web-based printing Services, allowing Users to upload their marketing Material Designs, in order for such Material Designs to be printed on Products; and purchase downloadable design templates which we have on offer.

5. Registration Process

    1. Only a User may make use of our Services.
    1. In order to register as a User you will, through the Registration Process, be prompted to provide Log in Details as well as submit certain Personal Information as more fully set out in our Privacy Policy.  
    1. Each time a User wishes to make use of the Service, the User shall be required to log into the Website using Log in Details.
    1. In the event of a User being of the view that its Log in Details are being used by someone else, please contact us immediately at support@themediashack.co.za.

6. Implementation of the Services

    1. When a User wishes to make use of our Services, the User shall log onto the Website using its Log in Details and select the applicable Services. 
    1. The Fee in respect of the Services shall then be reflected in the User’s cart.  
    1. Prior to the purchase being finalised, a User shall view the cart and either accept or cancel the Services.
    1. Upon acceptance of the Services a User shall be prompted to proceed to make payment of the Fee.

7. Material Design

    1. In submitting a Material Design, the User makes the following representations and warranties:
      1. all rights in and to such Material Design (including without limitation all rights to the reproduction and display of such Material Design) are obtained by the User, or, alternatively, all necessary rights in and to such Material Design have been obtained;
      1. all necessary license fees and other financial obligations of any kind arising from any use or commercial exploitation of a Material Design have been paid prior to you uploading same to the Website;
      1. the Material Design does not infringe the copyright, trademark, patent, trade secret or other intellectual property rights, privacy rights or any other legal or moral rights of any third party;
      1. the Material Design does not violate any laws including, but not limited to, those governing consumer protection, unfair competition or false advertising;
      1. the Material Design does not and may not reasonably be considered to be defamatory, libellous, hateful, racially, ethnically, religiously or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership or corporation, vulgar, pornographic, obscene or invasive of another’s privacy;
      1. the Material Design does not incorporate materials from a third-party website, or addresses, email addresses, contact information or phone numbers (other than a User’s own), without such third-parties consent;
      1. the Material Design does not violate any law including, but not limited to, those governing export control, consumer protection, or unfair competition;
      1. the Material Design as uploaded by the User shall not contain any viruses, worms, spyware, adware or other potentially damaging programs or files; and
      1. the Material Design does not contain any information that may be considered confidential, proprietary or personal insofar as it relates to a third-party.
    1. By submitting a Material Design:
      1. the User grants us the right to pre-screen the Material Design, and should same constitute a breach of any of the above warranties, refuse to perform the Services as required by the User;
      1. the User grants us an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty free license (sub-licensable through multiple tiers) to:
        1. use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display a Material Design (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
        1. use the Material Design in any manner and for any purpose (including, without limitation, commercial purposes) that we, in our sole, absolute and unfettered discretion, deem appropriate, including, without limitation, the incorporation of a Material Design or any modification thereto, in whole or in part, into any technology, product, or service;
        1. display advertisements in connection with the Material Design and use the Material Design for advertising and promotional purposes;
        1. we may, but are not obligated to, pre-screen a Material Design or monitor any area of the Website through which the Material Design is submitted;
        1. we are not responsible for any loss, theft, or damage of any kind to any Material Design.
Further, the User agrees that we may freely disclose any Material Design to any third party absent of any obligation of confidence on the part of the recipient.

8. Orders

    1. A User shall select from the Services available to it and thereafter complete the ordering process on the Website.
    1. Upon completing the order the User shall have the option of selecting whether it requires us to organise a courier, or will be arranging for collection of the Products.  If we are to organise the courier these costs will be included in the Fee.

9. Corporate Accounts

    1. In the event of a User being an entity, it will have the option to apply for a Corporate Account and have a credit facility extended to it prior to registration.  All documentation relating to the application, approval and terms governing the Corporate Account shall be seen as a separate agreement between the User and The Media Shack.
    1. The opening of a Corporate Account shall be at our discretion and upon the User meeting certain requirements.

10. Payment

    1. We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
    1. Payment may be made in one of the following manners:
      1. Instant Electronic Funds Transfer (“EFT”) - if paying via EFT, payment must be made within 5 (five) Business Days of placing your order, failing which same will automatically be cancelled, Products returned to stock and the Material Design deleted.
      1. PayFast - users are encouraged to consult the PayFast website located at www.payfast.co.za to familiarise themselves with the security protocols and other policies in place and which may apply to any transaction conducted through PayFast. 
      1. In the event of the User making a purchase through the Corporate Account, it will be prompted to enter its allocated purchase order number/s on checkout, and the amount due will be debited to the Corporate Account with invoices and statements being provided to such User in terms of the agreement referred to in clause 9.1 above. 
      2. The order will only be processed once the Fees have been received into our banking account, alternatively on the terms as contained in the Corporate Account credit agreement.

11. Processing and Delivery Time

    1. The delivery time of the Products to the User shall depend on:
      1. the amount of time taken for payment to be reflected in our account, alternatively on the terms as contained in the Corporate Account credit agreement;
      1. the availability of a Products; and
      1. the size of the order.
    1. We shall provide the User with an estimated date of delivery upon the placement of the order, however the User understands that delivery times are an estimate and not binding on us.
    1. We shall not be held liable for any defects or imperfections in the Products as a result of the User requesting that delivery of the Products be expedited and delivered ahead of the estimated delivery time.

12. Delivery of the Products

    1. The User may elect to have the Products delivered by us, or collected from us by it or a third party.
    1. All deliveries shall be made on a Business Day and during Business Hours to the address selected on checkout.
    1. All collections shall be made on a Business Day and during Business Hours on or by no later than 5 Business Days after the User having been advised that the Products are ready for collection.
    1. In the case of deliveries, these shall be made to the address as supplied during the purchasing process.
    1. Prior to delivery and in the event of:
      1. a courier being utilised to deliver the Products, the waybill number together with the estimated date of delivery will be transmitted to the User electronically, and the User shall be able to track the delivery status of the Products online and through the courier’s website; or
      1. us attending to the delivery of the Products the User shall be advised by email of the date and time of dispatch.
    1. Should there be no-one available to accept the delivery the Products shall be returned to our office, and it shall be incumbent on the User to make alternative arrangements for delivery or collection of same.  In this event, the User shall not be entitled to a refund of the courier portion of the Fee.
    1. Our obligation to provide the Products to you is fulfilled when the courier delivers or attempts to deliver the Products to you, alternatively same is collected from us in the event of the User selecting this option.  We are not responsible for any loss or unauthorised use of the Products thereafter.
    2. In the event of the Products being a downloadable design template, this shall be made available for download by the User immediately upon payment being reflected in our banking account.

13. Returns, Credits and Refunds

    1. Once the printing in respect of the Material Design has commenced no credit or refund shall be passed, whether or not such Products on which a Material Design has been printed, have been delivered.
    1. No credit or refund shall be passed in respect of downloadable design templates.
    1. In the event of a User purchasing Products free of a Material Design, such Products may be returned within 7 (seven) days of date of delivery provided that same is undamaged and in its original packaging.
    1. Prior to returning the Products as referred to in clause 13.3 to us, you are required to email us at customercare@themediashack.co.za setting out the reason why you wish to return the Products.
    1. In the event that the reason for returning the Products is valid, and solely at our discretion, a User shall be provided with a credit in the form of a discount code for the full Fee, less courier fees.
    1. No refund shall be made by way of a cash reimbursement to a User.

14. Discount and Sales

    1. A User may from time to time, and at our discretion, qualify for a discount on either the Products or downloadable design templates, which discount shall be provided in the form of a unique discount code being emailed to a User.
      1. The discount as associated with the code:
        1. may not be used as a set off on any special or promotional offer available on the Website at the time of use;
        1. is non-transferrable and may not be exchanged for cash;
        1. must be used as a once off application and not split over a period of time;
        1. must be used per order.  A User may not accumulate discount codes and use same for one order;
        1. cannot be replaced if expired; and
        1. cannot be used as a set off against courier fees.
        2. We shall further from time to time run sales in respect of the Products and/or the downloadable design templates.  These sales shall be advertised on the Website, and where possible we will advise Users of same via email.

15. Warranties by the User

    1. The User warrants and represents that the Personal Information provided to us is and shall remain accurate, true and correct and that the User will update the Personal Information held by us to reflect any changes as soon as possible.
    1. The User further warrants that when registering on the Website it:
      1. is not impersonating any person; and
      1. is not violating any applicable law regarding use of personal or identification information.
    1. Further and insofar as the Registration Process is concerned, the User warrants that the Log in Details shall:
      1. be used for personal use only, or as authorised by an entity in the event of the User acting on behalf of an entity; and
      1. not be disclosed by a User to any third party.
    1. For security purposes the User agrees to enter the correct Log in Details whenever making use of the Services, failing which access will be denied.
    1. The User agrees that, once the correct Log in Details relating to the User’s account have been entered, irrespective of whether the use of the Log in Details is unauthorised or fraudulent, the User will be liable for payment. 

16. Warranties by Media Shack

    1. We make no representation or warranty (express or implied) that the Website or Services will:
      1. meet a User’s needs;
      1. be accessible at all times;
      1. be accurate, complete or current; or
      1. be free from viruses.
    1. Subject to any express terms, we make no representation or warranty as to the volume or subject area of Services accessible through the Website.
    1. Except for any express warranties in these Terms the Services are provided “as is”. We make no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or noninfringement. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer as a result of you accessing or using the Website.
    1. We do not warrant that the use of the Website will be uninterrupted or error free, nor do we warrant that we will review information for accuracy or that we will preserve or maintain the User’s Personal Information without loss.
    2. We shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of The Media Shack. While a User may have statutory rights, the duration of any such statutorily warranties, will be limited to the shortest period to the extent permitted by required law.

17. Protection of Personal Information

    1. We undertake as far as is possible, to protect each User’s Personal Information in accordance with our Privacy Policy.

18. Unauthorised use of the Website or email addresses as provided by us

    1. A User may not use the Website for any objectionable or unlawful purpose;
    1. A User is not able to upload any information onto the Website save for the Personal Information as required when completing the Registration Process, or the Material Design when making use of the Services or ordering the Products.
    1. A User undertakes not to send to us spam mail, or make use of other unsolicited mass e-mailing techniques.
    1. A User shall not introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment through email communication with us.
    1. A User may not sell, redistribute or use information contained on the Website for a commercial purpose without our prior written consent.
    1. A User may not remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Website or any of our emails.
    1. A User may not distribute or publish any part of the information or content included in the Services on any publicly accessible electronic network, including without limitation the internet and the world wide web, Facebook, YouTube, or otherwise publish, broadcast or display any such information in public.
    2. A User understands and agrees that it is solely responsible for compliance with any and all laws, rules and regulations that may apply to its use of the Website or the Services.

19. Links to other Websites

    1. The Website may contain links or portals to other websites. We have no control over websites operated by third parties and the User agrees that we are not responsible for and will have no liability in connection with a User’s access to or use of any third-party website.

20. Limitation of Liability and Indemnity

    1. The Website shall be used entirely at a User’s own risk.
    1. We are not responsible for, and the User agrees that we will have no liability in relation to, the use of and conduct in connection with the Website, or any other person’s use of or conduct in connection with the Website, in any circumstance.
    1. We cannot guarantee or warrant that any file downloaded from the Website or delivered to you via email will be free of infection or virus, worms, trojan horses or other code that has contaminating or destructive qualities. A User is responsible for implementing appropriate processes, systems and procedures to protect itself from this type of issue.
    1. A User indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that we may suffer or incur as a result of or in connection with a User’s improper use of or conduct in connection with the Website, including any breach by a User of these terms or any applicable law or licensing requirements.
    1. To the maximum extent permitted by law we exclude all implied representations and warranties which, but for these terms, might apply in relation to a User’s use of the Website.
    1. To the extent that our liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute or tort (including negligence), to a User will be limited to the minimum amount imposed by such law.
    1. Notwithstanding anything to the contrary in these terms, in no circumstances will we 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 from or in any way connected to interruption of the Services of any type, whether in delict, contract or otherwise.

21. Copyright

    1. The Media Shack and the contents of the Website, apart from the Material Designs, are the property of The Media Shack, unless specified otherwise, and are protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website and/or the Services, is our property, unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
    1. Except as stated in the Terms, none of the contents 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 our prior written permission, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
    1. Users are expressly prohibited to “mirror” any content, contained on the Website, on any other server unless our prior written permission is obtained, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
    1. The User is granted a limited, revocable, and non-exclusive right to create a hyperlink to the Website, so long as the link does not portray us, our affiliates, Products or Services in a false, misleading, derogatory, or otherwise offensive manner. A User may not use our logo or other proprietary graphic or trademark as part of the link without our permission or the permission of our affiliates or content suppliers.
    1. The Media Shack does not permit copyright infringing activities and infringement of intellectual property rights through our Services or on the Website.  We may, at our sole discretion, remove any infringing content if we are of the view that such content infringes on another's intellectual property rights or our own
    1. All trademarks and copyrights, as also any other intellectual property rights, in and to any of the content of the Website are the exclusive property of The Media Shack.

22. Intellectual Property

    1. A User 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 us.
    1. We own or are licensed to use all intellectual property on the Website.  A User 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.
    1. By using the Services, a User warrants that it owns or is licensed to utilise the intellectual property rights comprising the Products. This includes copyright in respect of any text, as well as the right to use or display any image or logo. The User indemnifies The Media Shack and agrees to keep The Media Shack indemnified, from and against any claims by third parties arising from the Products, including any breach of intellectual property rights any third party may bring against us, in relation to the Products.

23. Breach

    1. If either Party commits a breach of the 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 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.

24. Dispute Resolution and Arbitration

    1. Any dispute which arises between the Parties in respect of the 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.
    1. 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.
    1. 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.
    1. The arbitration referred to in clause 24.3 shall be held –
      1. at Midrand or other venue agreed by the parties in writing;
      1. in English; and
      1. immediately and with a view to its being completed within 21 (twenty-one) days after it is demanded.
    1. The Parties irrevocably agree that the decision in arbitration proceedings:
      1. shall be final and binding upon them;
      1. shall be carried into effect; may be made an order of any court of competent jurisdiction.

25. Miscellaneous

      1. Assignment and novation:
          1. Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.
            1. be presumed to have been received on the date of delivery.
            1. be delivered or sent by email; and
            1. be given in writing;
            1. All notices to be given in terms of these Terms will:
      1. The address as provided when registering on the Website.
          1. Both the User and The Media Shack may change its 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.
      2. Unit 8, 90 Richards Drive Midrand
        Johannesburg
        Gauteng
        1685
        Email: support@themediashack.co.za
        Cell No: 0872381866
            1. User:
            1. TMS The Media Shack (Pty) Ltd
          1. The User and The Media Shack 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 of these Terms, the following:
        1. Domicilium Citandi Et Executandi and Contact Information
          1. If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these Terms and the remaining terms will continue to apply. Failure by us to enforce any of the provisions set out in these Terms and/or any other agreement, or failure to exercise any option to terminate, shall not be construed as a waiver of such provisions and shall not affect the validity of these Terms or of any agreement or any part thereof, or the right thereafter to enforce each and every provision.
        1. Severance
          1. To the extent necessary and/or possible, you consent to the exclusive jurisdiction of the South Gauteng High Court or an alternative appropriate South African court seized with appropriate jurisdiction in all disputes arising out of the Terms and/or related agreements incorporated by reference.
          1. To the extent permitted by law, these Terms shall be governed by and be construed in accordance with South African law, and any dispute arising out of these Terms shall be submitted to the competent South African courts having the requisite jurisdiction to hear the matter.
      3.  
        1. General
          1. During the subsistence of Force Majeure, the performance of both Parties under these Terms shall be suspended, on condition that either of them may elect to cancel any Services should the event of Force Majeure continues for more than 14 (fourteen) days by giving written notice to the other. 
      4.  
          1. The failure of either Party to fulfil any of their obligations under these Terms shall not be considered to be a breach of, or default provided such inability arises from an event of Force Majeure, and that either of the Parties who may be affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures in order to meet these Terms, and has informed the other as soon as possible about the occurrence of such an event.
        1. Force Majeure:
          1. We may assign or novate any of our rights or obligations under these Terms without a User’s consent. A User may not assign or novate any of his/her/its rights.

26. Preparation

      1. These Terms have been custom created for The Media Shack by the good folks at Legal Legends www.legallegends.co.za.