1.1. This website situated at www.macaroon.co.za ("Website") is operated by Macaroon Pty Ltd ("Macaroon"). These terms and conditions ("Terms") shall govern your use of and access to the Website, as well as the provision of any products or services ordered through Macaroon. Certain services, promotions and features may have additional terms and conditions which are applicable to such services, promotions and features, which are incorporated by reference herein.
2. OWNERSHIP & COPYRIGHT
The copyright in all templates, designs, graphics, information, material and logos on the Website vests in Macaroon and its members and shall continue to vest in Macaroon and its members and no right, title or interest in any proprietary material or information contained in this Website is granted to you hereunder.
3. MEMBER ACCOUNT
3.1. In order to create an account with Macaroon, you must be at least 18 years of age, and by creating an account and accepting these terms and conditions, you warrant and represent to Macaroon that you are not a minor and can form legally binding contracts under applicable law.
3.2. You may create a member account on the Website by registering your name, providing information about yourself and creating a username and password.
3.3. You hereby agree that all information requested and provided by you will be complete, current and accurate and that you will update such information whenever necessary. You are responsible for safeguarding the confidentiality of your username and password. You hereby agree not to disclose your username and/or password to any third party.
3.4. You hereby acknowledge and agree that you are solely responsible for any activities or actions taken or made under your account, irrespective of whether or not such activities or actions have been authorised by you, and you undertake to notify Macaroon immediately if you believe that your user name and/or password has become known to any other person or you become aware of any unauthorised use of your account. Macaroon shall not be liable for any loss or damages sustained by you or any third party as the result of any unauthorised use of your username, password, credit card or otherwise.
3.5. You agree and warrant that you will implement and comply with the above procedures.
3.6. We reserve the right to withdraw user names and passwords at any time without notice and in our sole discretion including but not limited to instances where we have reason to believe that such user name and password have been compromised and/or used by any person or organisation other than you.
4. MATERIALS SUBMITTED BY THE CUSTOMER
Any materials submitted by you, including, without limitation, photographs, images, text, graphics and other materials (collectively, "User Materials"), shall be subject to the following terms and conditions:
4.1. You will retain ownership of such User Materials, and you hereby grant to Macaroon and its employees, representatives and agents an irrevocable, worldwide, non-exclusive, transferable, royalty-free, right and license to use, reproduce, distribute, create derivative works of and publicly display such User Materials solely in connection with the provision or production of any product or service by Macaroon.
4.2. You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Materials, and that the User Materials do not and will not infringe any copyright, design right, trademark, trade name or other intellectual property right of any third party, and that the User Materials are not unlawful, fraudulent, threatening, abusive, defamatory, obscene or otherwise objectionable.
4.3. None of the User Materials will be subject to any obligation of confidentiality or any restrictions on disclosure or otherwise on our part or on the part of our employees or representatives ("Staff"), and neither we nor our Staff will be liable for any use or disclosure of any such User Materials.
4.4. You agree that we may (but are not obliged to) refuse to use any User Materials (including, without limitation, suspended processing and shipping of any order relating to any User Materials) and/or disclose any User Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to protect ourselves or our affiliates,.
4.5. You acknowledge that Macaroon will not back-up any User Materials and will not be liable for the loss of any such User Materials;
4.6. You agree to indemnify and hold Macaroon and its Staff harmless from and against any and all claims, liabilities, causes of action, damages losses and expenses (including without limitation, legal fees) that arise directly or indirectly from:
4.6.2. your User Materials; and/or
4.6.3. your activities in connection with obtaining any products or services from Macaroon.
5. USE OF THE WEBSITE
5.1. Subject to compliance with these Terms, Macaroon hereby grants to you a non-exclusive, non-transferable, limited right and license to access and use the Website, including any images, designs, templates, text, graphics, sounds, data, links and other materials incorporated into the Website (excluding the User Materials), solely as may be made available by Macaroon and solely for your own personal use. Unless otherwise expressly contained in these Terms, you may not reproduce, distribute, modify, transmit or publicly display any portion of the Website or create derivative works of any portion thereof without the prior written consent of Macaroon. Whilst using the Website, you agree not to:
5.1.1. impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
5.1.2. interfere with, restrict or inhibit any other user from using the Website, including, without limitation, by means of "hacking" or defacing any portion of the Website;
5.1.3. violate any applicable laws or regulations;
5.1.4. upload to, transmit through, or display on the Website (a) any material that is unlawful, fraudulent, threatening, abusive, libellous, defamatory, obscene or otherwise objectionable, or which otherwise infringes Macaroon's or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or
5.1.5. transmit any software or other materials that contain any viruses, worms, trojans, defects, or other destructive items;
5.1.6. modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of the Website;
5.1.7. remove any copyright, trademark, or other notices of proprietary rights contained in or displayed on any portion of the Website.
5.2. Should you fail to comply with any of the above provisions, such failure shall constitute a material breach of these Terms and, in addition to any other rights or remedies Macaroon may have, Macaroon shall be entitled to immediately terminate your access to and use of the Website.
Either you or Macaroon may terminate your access to the Website and your account at any time, with or without prior written notice. Upon termination for any reason:
6.1. your right to access and/or use of the Website will immediately cease;
6.2. you will have no further access to any information, files or materials relating to your account, including, without limitation, any User Material.
6.3. Macaroon shall be entitled to delete all information, files and materials related to your account, including any User Material, and you acknowledge and agree that Macaroon shall have no liability whatsoever to you or any third party as a result of termination of your rights of access to your account and/or deletion of any information, files or materials related to your account. In addition, Macaroon shall have no obligation whatsoever to make any such information, files or materials available to you following termination of your rights of access to your account.
7. DISCLAIMER OF WARRANTIES.
7.1. This Website and the information contained therein is provided "as is" and Macaroon makes no express or implied representations or warranties with regard thereto. Without limiting the generality of the aforegoing:-
7.1.1. Macaroon does not warrant that the Website or information will be error-free or will meet any particular criteria of performance or quality. Macaroon expressly disclaims all implied warranties, including, without limitation, warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security and accuracy;
7.1.2. whilst Macaroon has taken reasonable measures to ensure the integrity of this Website and its contents, no warranty, whether express or implied is given that any files, downloads or applications available via this Website are free of viruses, trojans, bombs, time-locks or any other data or code which has the ability to corrupt or affect the operation of your system.
7.2. Without limiting the foregoing, Macaroon makes no warranties:
7.2.1. regarding the security, accuracy, reliability, timeliness and performance of the Website; or
7.2.2. regarding the goods, services, advice, information or links provided by any third parties.
7.3. No advice or information, whether oral or written, obtained by you from Macaroon, will create any warranty not expressly stated in these Terms.
8. RISK & LIMITATION OF LIABILITY
8.1. Your use of this Website and the information contained therein is entirely at your own risk and you assume full responsibility and risk of loss resulting from the use thereof. Neither Macaroon, its affiliates, members, agents, consultants or employees will be liable for any damages whatsoever, including, without limitation any direct, indirect, special, incidental, consequential or punitive damages, whether in an action arising out of contract, statute, delict or otherwise, relating to the use of this Website or the information contained therein.
8.2. You acknowledge and agree that your sole remedy for dissatisfaction with the Website shall be to stop using the Website and/or terminate your account.
You hereby agree to defend, indemnify, and hold harmless Macaroon, its Staff and its members, affiliates, partners and distributors from and against any and all claims, liabilities, causes of action, damages, losses, and expenses, including, without limitation, reasonable legal and expert fees, arising out of or in any way connected with your access to or use of the Website, any actions or activities in connection with the Website, any actions or activities in connection with your account, your violation of these Terms, or the violation of any other terms and conditions of any other agreements or terms to which you are bound with Macaroon. You agree that Macaroon may at any time, and without notice, suspend or terminate your access to the Website if you fail to comply with the Terms or any applicable law.
10. TRANSMISSION OF INFORMATION
10.1. Your attention is drawn to the fact that information transmitted via the Internet, including, without limitation e-mail, is susceptible to monitoring and interception. You are therefore discouraged from transmitting to Macaroon any information which may be confidential, proprietary or sensitive. You shall bear all risk of transmitting such information in this manner and under no circumstances will Macaroon be liable for any loss, harm or damage suffered by you as a result thereof. Macaroon reserves the right to request independent verification of any information transmitted via e-mail and you consent to such verification should Macaroon deem it necessary.
10.2. Macaroon requests that no unsolicited confidential or proprietary information be sent to Macaroon. Any information or material sent to Macaroon will be deemed not to be confidential, unless otherwise agreed in writing by Macaroon.
11. LINKS TO THIRD PARTY SITES
Linked sites are not subject to the control of Macaroon and Macaroon is not responsible for the contents of any linked site or any link contained in a linked site. Macaroon provides links to you only as a convenience and the inclusion of any link does not imply endorsement by Macaroon of such site.
If any of the foregoing is not fully enforceable for any reason, the remainder shall nonetheless continue to apply.
13. JURISDICTION AND APPLICABLE LAW
Any dispute or purported dispute arising out of these Terms shall be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law. The parties to any dispute arising out of this Website hereby consent and submit to the jurisdiction of the South Gauteng division of the High Court of the Republic of South Africa.