November 2020 | Version 1.0
These are the general terms of our relationship with you. They cover any transactions where we provide services to you. Under these terms:
- we are the service provider – Hub Online Media (Registration number: 2016/041256/07), also known as Bike Hub – and
- you are the customer
2.1. Composition. The agreement consists of these terms of service and any other specific terms applicable to the services.
2.2. Definitions. In the agreement:
business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised;
business hours means our normal business hours on business days;
day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;
sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives; and
we, us, or our means Bike Hub
writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email.
you, you or your means any person making use of our services, including buyers or sellers using the Bike Hub Pay service.
2.3. Interpretation. The following rules apply to the interpretation of the agreement:
- reference headings – clause and subclause headings are for reference only and do not affect interpretation;
- non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
- undefined words or phrases – all words or phrases that the agreement does not define have their ordinary English meanings;
- enactment references – references to any enactment include it as re-enacted, amended, or extended;
- person references – references to a person includes a natural and juristic person;
- party references – references to a party includes their successors or permitted assigns;
- number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
- no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
- time calculations – the parties will use GMT +2 to calculate any times.
2.4. Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in other specific terms.
2.5. Conflict. If there is a conflict of meaning between these terms and any word or phrase in any other specific terms, the meaning in the specific terms will prevail in respect of the relevant services.
3.1. Commencement. These terms start whenever you accept them by:
- doing so explicitly – such as by checking a checkbox saying that you do or agreeing to any agreement that incorporates them by reference;
- using the services in any way – such as by accessing them; or
- exercising any rights granted to you under the agreement;
and continue until terminated.
4.1. Right. We grant you a right to use the services subject to the following limitations:
- duration of agreement – you may only use the services for the duration of the agreement;
- limited to terms – you may only use the services according to these terms;
- non-exclusive – we may allow anyone else to use the services;
- non-transferable – you may not transfer the right to anyone else; and
- specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.
4.2. Capacity and authority. You warrant that you have the legal capacity and authority to enter into the agreement. Where you are a natural person, you warrant that you are 18 years old, and legally capable of entering into binding agreements. Where you are registering on behalf of a juristic person, you warrant that you have the full and complete authority to bind that entity
4.3. Basis. We provide the services to you on the following basis:
- you give us permission to monitor how you use them for security and stability purposes; and
- you agree that our records are undisputed evidence of the services provided to you.
4.4. Access conditions. We will only provide service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:
- accurately provide us with any information that we ask for on registration or account creation;
- create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
- look after their credentials and not give them to anyone else;
- not interfere with or introduce any malicious software into the services or otherwise misuse them;
- be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
- have the necessary infrastructure, equipment, and software to access the services; and
- abide by the agreement and any policies that we communicate to them in writing.
4.5. Availability. We will do our best to make the services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.
4.6. Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your listing on our website or when we accept your transaction through our Bike Hub Pay service.
4.7. Monitoring and records. You give us permission to monitor how you use the services, for security and stability purposes. You agree that our records are undisputed evidence of the services provided to you.
4.8. Breach. We may suspend or cancel your right if you breach the agreement.
5.1. Advertising. We provide you with a classifieds service to advertise products. Certain fees may apply depending on the nature of your use of our services and the category you advertise in.
5.2. Disclosures. You must disclose in what capacity you are using our services in the profile that you set up on our website. We may change your account user type if we find that you have incorrectly specified what type it is. We may, in our absolute discretion suspend or terminate your services if you do not accurately define your account type.
5.3. Listings. Any listings that you post on our website must contain complete and updated information. Your listing must include:
- a description of the item;
- one or more photographs of the item;
- the price of the item;
- the payment terms; and
- any other terms that we may require you to add to the listing.
If your listing does not contain any of this information, we will not include your listing on our website.
5.4. Duplicates. You may not post duplicate advertisements or reposting an advert for the same item before the expiry of the first advert or post the same item across different categories. We will remove any duplicate adverts and may suspend or terminate your account if, in our absolute discretion, find that you continue to post duplicate or reposted advertisements.
5.5. Counterfeit or illegal products. You may not list any counterfeit or illegal products for sale. If we find that you posted any counterfeit or illegal goods, we will suspend or terminate your account.
5.6. Parallel Imports. You must indicate whether an advert contains parallel imports. You must also state whether the product in the advert is new or used, have a clear notice on the advert describing the nature of the goods and any impact on the warranties or local product support. You are required to do so by the Department of Trade and Industry.
5.7. Verifying information. We may verify any information that you include in any advertisements. We will contact you to verify any information that you provide to check the authenticity of the product. If you do not supply information relating to the authenticity of the product, we will have the right to suspend or terminate your account.
5.8 User reviews. User reviews should only be submitted where an agreement to transact exists or a transaction was concluded. We reserve the right to remove feedback which relates to negotiations or communications where there was no agreement and/or a transaction did not take place.
6. Bike Hub Pay service
6.1. Bike Hub Pay services. We may offer an option to act as a middleman between a buyer and a seller of any transaction on our website.
6.2. Buyer and seller agree to terms. A buyer and a seller on the marketplace agree to the terms of the transaction on our website. Once the parties have agreed to the terms of sale, the buyer must capture the terms of the agreement and submit to the seller for acceptance via the Bike Hub Pay portal.
6.3. Information required. We may require certain information before we are able to fully process a transaction on the Bike Hub Pay service on our side. We will not be able to process the transaction without this information.
6.4. Buyer must make payment. Once a buyer has had their offer accepted by a seller, the buyer must make payment into our account within 72 hours using one of the payment methods via the Bike Hub Pay service.
6.5. Seller’s obligations. The seller has seven days to ship and deliver the goods to the buyer. It is the seller’s responsibility to ensure that the goods are shipped and delivered to the buyer.
6.6. Inspection period. The buyer has 48 hours from the time of delivery to inspect the goods shipped by the seller. If the buyer does not respond within 48 hours, we will assume that you have accepted the goods and we will make payment to the seller.
6.7. Payout to sellers. We will pay the seller the purchase price of the goods, minus any fee that is due to us, within two working days of the buyer accepting the goods.
6.8. Transaction protection. We will offer both a buyer and seller protection only where you complete the entire transaction through the Bike Hub Pay service.
6.9. Cancellation. A Bike Hub Pay transaction may be cancelled by:
- the seller if the buyer has not completed payment within three days of accepting the buyer’s offer; or
- the buyer, if the seller has not shipped the goods within seven days of completing the payment.
7. Moderation on our website
7.1. Right to remove content posted on website. We reserve the right to remove or edit any content or posts that breach any term of these terms or any other terms on our website or that we, in our sole discretion, consider offensive or inappropriate. We also reserve the right to terminate your access to the website or to refuse access to its website to you or anyone, for any reason, at any time.
7.2. Code of conduct for user content. By using or posting on our website, you agree to our user comments policy found at: https://community.bikehub.co.za/docs/comments_policy. If we find that any of your content on your website is in breach of our user comments policy, we may, in our absolute discretion, remove any comments and permanently terminate your access to our website.
7.3. Spamming or excessive communications. You may not spam a user via direct message or through any other means of communication in response to a listing. You may also not send any unsolicited or unauthorised communications on our website. If any complaint is submitted against you by other users, we reserve the right to permanently terminate your access to our website.
8. Your data
8.1. Definition. Your data is any data belonging to you or your customer that:
- you or your customer (or any third party on your behalf) provide to us; or
- we generate, process, or supply to you or your customer in providing the services;
but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.
8.2. You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.
8.3. We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.
8.4. Responsibility. We take the protection of your data very seriously and will always do our best to protect it. However, we are not responsible for any of your data stored on the services, you provide it to us at your own risk, and you indemnify us against any liability for it to the extent allowed by applicable law, including liability for data breaches, unauthorised access, and third party claims.
8.5. Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that we:
- notify you in writing of: (i) the purpose of sharing your data with the subcontractor; and (ii) how we have carried out due diligence on them;
- do so only through a written agreement with the subcontractor which imposes the same obligations on them as are imposed on us; and
- remain fully liable for any processing of your data under the agreement by our subcontractor.
8.6. Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.
9. Confidential information
9.1. Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.
9.2. Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:
- protect the other party’s interests;
- only use it to comply with their responsibilities under the agreement;
- only give it to their employees or agents that need it (and only as much as they need);
- use reasonable security procedures to make sure their employees or agents keep it confidential;
- get promises of confidentiality from those employees or agents who need access to the information;
- not reveal the information to anyone else; and
- not use it for any purpose other than under this agreement.
9.3. End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:
- the other party agrees that they may destroy or retain it instead; or
- it is lawfully in the public domain;
- someone else who is allowed to reveal it gives it to them;
- someone gives it to them to comply with a court order or other legal duty.
9.4. Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.
9.5. Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.
10. Intellectual property
10.1. Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.
10.2. Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.
10.3. Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.
10.4. Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.
10.5. Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.
10.6. Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.
You will not contract with any of our personnel or third-party licensors, other than through us, who were involved in providing services under these terms for the duration of these or for 12 calendar months after its termination.
12. Fees and payment
12.1. Our fees. We do not charge you a fee for registering on our website. However, depending on what service you make use of, we may require you to pay either of the following fees:
- Listing fees;
- Value added upgrade fees;
- Bike Hub Plus membership fees; or
- Success fees on any Bike Hub Pay services transaction.
12.2. Payment. You will pay us the fees on the due date through any of the payment methods listed on the website. You may not withhold payment of any amount due to us for any reason.
12.3. Listing or subscription fees. Depending on the services you use, we may require you to pay listing fees, value added upgrade fees or Bike Hub Plus membership fees. We reserve the right to increase fees, any associated taxes or introduce new fees at any time provided we give you reasonable notice for these new fees.
12.4. Interest on money paid through Bike Hub Pay. Any interest that accrues on money that we hold through a Bike Hub Pay transaction will accrue to Bike Hub.
12.5. Renewal and cancellation of subscriptions. Your subscription will renew automatically on either a monthly or annual basis until you decide to terminate your subscription. You may cancel your subscription at any time, but your cancellation will only be effective from the end of the current billing cycle.
12.6. Refunds and returns. If you require a refund because of a cancelled Bike Hub Pay transaction or a returned good in a Bike Hub Pay transaction, we will charge an admin fee equal to the minimum success fee. This fee will be deducted from the amount you paid to us.
12.7. Refunds for Bike Hub Plus subscriptions. You are entitled to receive a refund of your Bike Hub Plus membership fees if you cancel your subscription within five days of the initial payment for your membership.
12.8. Shipping and courier costs. We will not be liable for any shipping or courier costs incurred relating to the sale or return of goods in a Bike Hub Pay transaction or any other transaction related to one of the listings on the website.
12.9. Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.
12.10. Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:
- 2% above the prime (or prime lending) rate; or
Interest will be payable on a claim for damages from when the damages were suffered.
12.11. Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.
12.12. Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.
12.13. Tax. All fees exclude any tax (unless indicated otherwise). You will be liable to pay applicable taxes in addition to the fees.
12.14. Payment profile. We may provide any registered credit bureau with information about your payment of amounts.
13. Our warranties
13.1. Service warranties. We warrant that we will:
- employ enough trained personnel with the knowledge and expertise to provide the services;
- use reasonable efforts consistent with prevailing industry standards to maintain the services; and
- provide the services in accordance with all applicable laws.
13.2. General warranties. We warrant further that we:
- have the legal right and authority to perform our obligations under the agreement; and
- will not intentionally introduce any malicious software into your systems through using our website.
14. Disclaimer of warranties
14.1. Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause or a third-party causes.
14.2. Warranty for goods or services. We do not give any warranty regarding the suitability of the website or the content posted on the website. Any goods or services posted on the website is provided “as is” and we do not warrant that any of the goods or services that you purchase on the website from other users is error free.
14.3. Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.
15. Your warranties
15.1. Agreement warranties. You warrant that:
- no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
- you are not breaching any other agreement by entering into the agreement.
15.2. Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.
16. Limitation of liability
16.1. Direct damages limited. We are only liable to you for any direct damages that the services may cause up to the total amount of fees that you have already paid us for them.
16.2. Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.
16.3. Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake caused by using our services.
16.4. Default caused by other parties. We will not be liable for any damage or loss that another party’s default caused by using our services.
16.5. This clause is separate from the rest of the agreement and remains valid for five years after the end of the agreement.
17. Breach and termination
17.1. Breach. If either party
- does not fix a breach within seven days of receiving written notice from the other party;
- breaches the agreement materially twice or more in six months;
- is bankrupt or has some legal disability;
- takes steps to or is closed down (such as becoming insolvent or entering sequestration);
- makes any settlement or arrangement with their creditors; or
- fails to pay a court order against themselves for a significant amount within 21 days;
then the other party may:
- make the party comply with the agreement; or
- immediately cancel the agreement in writing and claim damages from the other party, including fees already due.
17.2. Suspension. We may immediately suspend your right to use the services if:
- you try to gain unauthorised access to them;
- we decide that your use poses a security threat to us or another user other than you;
- there is evidence of fraud on your account; or
- we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.
18.1. Termination for good cause. We may need to terminate the agreement immediately if:
- we discontinue or stop providing the services;
- believe providing the services could burden or pose a risk to us;
- have to terminate to comply with a law; or
- determine that providing the services has become impractical.
If we need to terminate, we will give you as much notice as reasonably possible in writing.
18.2. Termination for convenience. You may terminate the agreement on at least 60 days written notice to us.
18.3. Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.
19. Effect of termination
19.1. Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry of the agreement.
19.2. Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions.
19.3. No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.
20.1. Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognised and appropriate forum for arbitration that is accessible to both parties.
20.2. Resolving disputes between parties using our services. We may, in our discretion, offer assistance or facilitate the resolution of a dispute between a buyer and a seller using our Bike Hub Pay services. If we do not resolve the dispute between the buyer and the seller, we may refer the buyer and the seller to other forms of dispute resolution. This may include referring the parties to the small claims court or any other court that has jurisdiction over the matter.
20.3. Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.
20.4. Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.
20.5. Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.
20.6. Relationship. The agreement does not create an employment relationship between the parties.
20.7. Entire agreement. The agreement is the entire agreement between the parties on the subject.
20.8. Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future agreements. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
20.9. Waiver. Any favour we may allow you will not affect any of our rights against you.
20.10. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.
21. Region specifics (ZA)
The clauses in this section apply only to the agreement if we were legally registered in South Africa when we accepted it.
21.1. Governing law. South African law governs this agreement.
21.2. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).
21.3. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree to appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
21.4. Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
22. Region specifics (UK)
The clauses in this section apply only to the agreement if we were legally registered in the United Kingdom when we accepted it.
22.1. Governing law. The law of England and Wales governs this agreement.
22.2. Mediation. If negotiation fails, the parties must refer the dispute to mediation under LICA’s rules. LICA means the London Court of International Arbitration (or its successor or body nominated in writing by it in its stead).
22.3. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under LICA’s latest rules for expedited arbitrations. The arbitration will be held in English in London. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of LICA will appoint the arbitrator.
22.4. Jurisdiction. You consent to the jurisdiction of the lowest possible court for civil disputes in the United Kingdom in respect of any action or proceedings that we may bring against you in connection with the agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
23. Global specifics
The clauses in this section apply only to the agreement if none of the region specific clauses above apply.
23.1. Governing law. The law of whichever country we have our offices in when we enter into the agreement governs the agreement.
23.2. Jurisdiction. You consent to the jurisdiction of the lowest possible court for civil disputes in the country in which we were legally registered when we accepted the agreement in respect of any action or proceedings that we may bring against you in connection with the agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.