Publication date: 8 August 2023
Where provisions are highlighted in bold text, the Client is required to pay special attention to such provisions as they have a serious impact on the Client’s rights and Intricode wishes to draw the Client’s attention thereto.
1.1 In these Terms and Conditions, unless inconsistent with or otherwise indicated by the context –
1.1.1 “Business Day” means any day that is not a Saturday, Sunday, or South African public holiday;
1.1.2 “Client” means any client who purchases a Product from Intricode, or who uses the Platform or Services;
1.1.3 “Content” means any and all content displayed on the Platform at any given time, and shall include (but shall not be limited to) confidential information, literary works, marketing and business information, musical works, artistic works, sound recordings, cinematograph films, sounds and television broadcasts, program-carrying signals, proprietary works, published editions and computer programs, names, logos, trademarks, images, text, columns, graphics, photographs, illustrations, code, and software;
1.1.4 “CPA” means the Consumer Protection Act No. 68 of 2008;
1.1.5 “Intellectual Property” means rights in and in relation to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), rights in get-up, copyright (including rights to derivative works), database, domain name, circuit, design, code and/or utility model, and including in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world, registered or unregistered;
1.1.6 “Order” means an order for the Products placed by the Client by completing an Order Form and delivering such Order Form to Intricode;
1.1.7 “Order Form” means the order form prescribed by Intricode from time to time, for the purpose of making orders for the Products;
1.1.8 “Parties” means Intricode and the Client and “Party” will mean either one of them as the context may indicate;
1.1.9 “Platform” means the online live tracking platform developed by Intricode and implemented to enable Clients to track the Products, found at https://track.spoortrack.com/ and/or https://spoortrack.com;
1.1.10 “Products” means the tracking devices or other products advertised and/or sold by Intricode to the Client from time to time;
1.1.11 “Intricode” means Intricode Solutions Proprietary Limited, registration number 2021/547752/07, a private company with limited liability, duly incorporated in accordance with the company laws of the Republic of South Africa;
1.1.12 “Services” means the live tracking subscription services provided by Intricode in terms of which the Client can track the movement of the Products;
1.1.13 “Subscription Fees” means data costs and service charges payable by the Client in exchange for the Services;
1.1.14 “Terms and Conditions” means the terms and conditions applicable to the purchase of the Products and the use of the Platform as set out herein, as amended from time to time.
1.2 The clause headings in these Terms and Conditions have been inserted for reference purposes only and shall not affect the interpretation of any provision of these Terms and Conditions.
1.3 Words and expressions defined in any sub-clause shall, for the purpose of the clause of which the sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
1.4 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of the Terms and Conditions, notwithstanding that it is only contained in this interpretation clause.
1.5 If any period is referred to in these Terms and Conditions by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the day shall be the next succeeding Business Day.
1.6 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms and Conditions shall not apply.
1.7 These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
1.8 Expressions defined in these Terms and Conditions shall bear the same meanings in any annexure hereto which does not contain its own definitions.
2 DEEMED ACCEPTANCE
2.1 By accessing and using the Platform, the Client agrees to be bound by the Terms and Conditions set out herein.
2.2 If the Client does not wish to be bound by the Terms and Conditions, the Client may not access, display, use, download, otherwise copy or distribute the Content on the Platform, and/or make use of the Services.
3.1 This document sets out the Terms and Conditions of Intricode pertaining to the sale of the Products as well as the provision of the Services and access and use of the Platform and the Content, information, products, and functions provided on the Platform.
3.2 The Client may use the Platform to receive Services as and when required from time to time, subject to these Terms and Conditions.
PART I – SALE OF PRODUCTS
4.1 These Terms and Conditions together with the Order Form is applicable to all purchases of Products supplied by Intricode to the Client as described in the Order Form. The Order Form confirms, inter alia:
4.1.1 the description of the Product and the quantities ordered; and
4.1.2 the details of the Client.
4.2 In order to place an Order for any Products, the Client must properly complete and sign the Order Form and deliver it to Intricode. Intricode may accept the Order in its sole discretion. All Orders will be subject to availability of the Products. The Client warrants that all information contained on the Order Form or otherwise submitted to Intricode is accurate, and the Client acknowledges that Intricode relies on the information provided by the Client.
4.3 After an authorised representative of Intricode has accepted the Client’s Order, a sale agreement will have been concluded between the Client and Intricode, subject to these Terms and Conditions. Notwithstanding anything to the contrary contained herein, these Terms and Conditions shall apply to all Orders accepted by Intricode, regardless of whether the Order Form is signed by the Client or not.
4.4 Intricode reserves the right to cancel any Order placed by the Client, even after acceptance by Intricode and allocation of a specified delivery date. In the event of cancellation by Intricode, the Client does not have any claims against Intricode, and the Client hereby indemnifies and holds Intricode harmless against any direct or consequential damage or harm that the Client or any third party may endure as a result of such cancellation.
4.5 The Client acknowledges that it does not rely on any warranties or representations given by Intricode in respect of the Products, other than those included in these Terms and Conditions. All specifications, prices, advertisements, brochures and technical data obtained by the Client either directly from Intricode or in any media published with regards to the Products will only form part of this Agreement if confirmed in writing by both the Client and Intricode. Intricode may appoint representatives or agents to market its Products, or provide advice relating to the Products. The Client acknowledges that any such advice, information and programs are provided to the Client in good faith and shall be used solely at the Client’s risk. To the extent that the CPA is not applicable to this Agreement, Intricode shall not be held liable for the accuracy of any such representations or advice.
5.1 It is the Client’s sole responsibility to ensure that the Products ordered from Intricode are suitable for its intended use, subject to the provisions of the CPA, to the extent to which it is applicable. The Client specifically acknowledges that the Products are made to order, and accordingly the Client will be liable for any reasonable costs incurred by Intricode should the Order not be completed, delivery not be timeously accepted, or the Order cancelled.
5.2 Except to the extent to which the CPA is applicable, in the event that the ordered Products are no longer manufactured by Intricode or are no longer available for delivery, Intricode reserves the right, at its sole discretion, to provide alternative products to the Client, provided that the alternative products are of the same quality and quantity at the prevailing prices, and substantially the same as the Products originally ordered by the Client.
5.3 To the extent to which the CPA is not applicable, Intricode does not make any warranties in respect of the Products, and the Products are sold “voetstoots”, without any express, implied, tacit, or common law warranties relating to the quality of the Products or the suitability thereof for any purpose whatsoever.
5.4 The Client specifically acknowledges that the Products are made to order and Intricode is unable to accept any returns of the Products. The Client shall, insofar as the CPA is applicable, be entitled to cancel an Order within 5 Business Days of the delivery of the Order Form, provided that if the Order has been delivered, any return costs shall be at the cost of the Client.
6 PRICE AND PAYMENT
6.1 The prices set out on the Order Form are valid for a period of 30 calendar days from the date of the quotation, or until the date on which new prices are issued by Intricode, whichever occurs first. All prices are exclusive of value added tax, unless expressly stated otherwise.
6.2 All quotations are subject to the availability of the Products, and rectifications of bona fide errors by Intricode. Until such time as the Order is accepted, the prices set out on the Order Form are subject to any increase in the cost price of the Products.
6.3 The Client hereby agrees to pay any additional costs resulting directly from any act or omission by the Client which results in the failure or delay in the delivery of the Products, including any changes to the requirements of the Client.
6.4 The Client acknowledges that the Products appearing on any invoice issued by Intricode are the Products ordered by the Client as agreed between the parties. To the extent that the CPA is not applicable to this Agreement, where delivery of the products or performance of the Services have already taken place, the Client hereby acknowledges that the Client inspected such Products, is satisfied with the quality and quantity thereof, and that the Products were free of defects.
6.5 Intricode is entitled to invoice the Client separately for each delivery.
6.6 The Client shall make payment of the purchase price of the Products as set out in the Order Form to Intricode in cash in the currency stated on the invoice, in full, prior to delivery.
6.7 The Client accepts all of the risk connected to payment by way of cheque, electronic funds transfer, or debit orders.
6.8 The Client may not withhold payment of an invoice for any reason whatsoever and may not apply set-off or deduction. No relaxation or indulgences granted by Intricode shall be valid unless agreed to in writing by Intricode.
6.9 The Client agrees that in the event that any payment to Intricode is late or overdue (including without limitation in respect of the Subscription Fees or Overage Fees) –
6.9.1 any outstanding payments for any Orders placed and delivered by Intricode or any Services provided shall become immediately due and payable without any further notice to the Client; and
6.9.2 the outstanding amount shall bear interest at the highest interest rate prescribed by the National Credit Act No. 34 of 2005, if applicable, or alternatively at double the repo rate as published by the South African Reserve Bank from time to time.
6.10 The Client shall only be exempted from value added tax charged on the products in the event that the Client provides Intricode with written proof of such exemption issued by SARS. All payments received from the Client shall be applied in the sole discretion of Intricode, which discretion may be applied to first settle any fees, costs and interest owing to Intricode, and thereafter to reduce the principal debt.
7 DELIVERY, RISK, AND OWNERSHIP
7.1 Intricode shall advise the Client of the expected delivery or collection date of the Products. Intricode shall do everything reasonably possible to make delivery of the products on the requested/advised date but does not warrant timeous delivery. Intricode shall not be liable for any direct or consequential loss or damage suffered by the Client as a result of any delay, subject to the provisions of the CPA insofar as it is applicable to this Agreement.
7.2 Risk of loss or damage to the Products shall be transferred to the Client at collection or delivery to the Client or its representative. All deliveries of the Products shall be in accordance with the Ex Works Incoterms, the rules of which the Parties agree are incorporated into this Agreement by reference. For the purposes hereof “Incoterms” means the International Rules for the Interpretation of Trade Terms as published by the International Chamber of Commerce, Paris, France, 2010 edition.
7.3 Notwithstanding delivery, Intricode retains ownership of the Products until such time as the payment therefore has been received by Intricode in full.
7.4 In the event that the Client cancels its Order, it shall be liable for the full purchase price thereof.
7.5 In the event that the Client refuses or fails to accept delivery of the Products, in any way causes a delay in the delivery thereof, or Intricode (in its sole and unfettered discretion) agrees to defer the delivery of the Products –
7.5.1 the risk of loss or damage shall be transferred to the Client; and
7.5.2 the Client shall be liable for reasonable storage, insurance, handling, and administration fees until such time as delivery takes place. Until such time as the Client accepts delivery of the Products, Intricode shall not be liable for any loss or damage to the Products arising out of any cause other than Intricode’s gross negligence or wilful misconduct.
8.1 Subject to the provisions of the CPA, insofar as it may be applicable, the Client must inspect the Products and notify Intricode in writing of any defects within 5 days of collection or delivery. Such written notice must include the nature of the defect and sufficient proof thereof.
8.2 If the Products are found to be defective, Intricode shall replace the Product at its cost, but the Client shall not be entitled to a refund. Intricode shall be entitled to the return of the defective Products, at its cost.
PART II – SERVICES
9 SUBSCRIPTION AND ACTIVATION
9.1 The Services are provided on a subscription basis. Subscriptions will continue, and be billed periodically, until cancelled. A Client may cancel its subscription at any time with 30 days’ notice, on the Platform.
9.2 Intricode shall be entitled to terminate the Services at any time on 10 Business Days’ notice.
9.3 Intricode shall activate the Products at the Client’s request. Intricode shall not be liable for any loss arising due to the activation of the Product by the Client or a third party.
9.4 The Client acknowledges that activation of the Product connects the Product to a satellite network, allowing the Client to live track the Products via the Platform. The Client further acknowledges that, for so long as the Products are activated, the Client shall incur Subscription Fees, as set out on the Platform from time to time.
9.5 It is the Client’s sole responsibility to ensure that the Products are working and that the live tracking is updating and to report any problems to Intricode as soon as they arise.
9.6 The Client shall not be entitled to a refund of the Subscription Fees or any portion thereof if the Products have not been deployed; an animal to which a Product is attached has died; or if a Product becomes unattached to an item or animal that it is tracking. If a Product is activated, it will incur Subscription Fees and it is the Client’s responsibility to deactivate the Product via the Platform.
9.7 When a Client’s paid subscription to any Service or Content ends (or if any amounts owing to Intricode are outstanding), the Client will lose access to any functionality of the Content or the Services.
10 SUBSCRIPTION FEES AND PAYMENT
10.1 The Subscription Fees payable will be updated on the website from time to time. Intricode offers various monthly subscriptions with differing levels of Services and use of the Platform. Should a Client use more Services or data required to make use of the live-tracking Services than allocated in terms of the Client’s chosen subscription, the Client shall be liable for out of subscription/bundle rates, as set out on the Platform from time to time (“Overage Fees”).
10.2 Subscription Fees and Overage Fees shall be payable in cash, without set-off or deduction, and free of all bank charges. ¬Subscription Fees shall be paid by the Client monthly in advance and Overage Fees shall be paid monthly in arrears, against receipt of an invoice.
10.3 The Client shall be entitled to pay funds in advance into the Client’s Intricode account/wallet (“Client Account”), and Intricode shall apply the funds in the Client Account to open invoices automatically.
10.4 If Intricode cannot charge the Client’s payment method (including without limitation the Client Account) for any reason, and the subscription has not been cancelled or the Products not deactivated, the Client remains responsible for any uncollected amounts.
PART III – USE OF THE PLATFORM
11.1 Intricode respects the privacy and confidentially of the Client, which specifically includes the use of the Platform by Clients for the Services. Intricode only collects and processes information in respect of the Client in order to render the Services and provides the Products, and at all times acts in accordance with the provisions of the Protection of Personal Information Act No. 4 of 2013.
11.2 Clients are advised to ensure that their devices on which they are to receive the Services are protected and that the necessary measures are put in place. Clients should further ensure that they make use of a private and confidential environment when they make use of the Services.
12 CONDITIONS OF USE
12.1 The Client may not use, copy, adapt, redistribute, or modify the Content or any part thereof or frame, "mirror", data-mine (by way of but not limited to, robots, crawlers or other similar programs) or cache the Platform or reverse engineer, copy, modify, re-distribute, decompile, or create a derivative work of the Platform or Intricode’s software, or any part thereof without prior written authorisation from Intricode.
12.2 The Client may not assign, transfer or sublicense the rights afforded to the Client in terms of these Terms and Conditions, and the Client accordingly agrees not to provide access to any other person, or provide his/her account details to any such other person.
12.3 The Client agrees to treat all Content and information on the Platform as confidential, and not to share any such Content or information with any person other than on the Platform without the relevant Party’s express consent, if applicable.
Intricode reserves the right to –
13.1 refuse services, suspend or terminate a Client’s access to the Platform, and remove or edit the Content at its sole discretion;
13.2 claim damages from any Client who does not comply with these Terms and Conditions;
13.3 make improvements, change, or discontinue, without notice, any aspect or feature of the Platform and Content, without notice to the Client; and
13.4 use the services of third parties to provide information on the Platform.
14 USAGE RESTRICTIONS
14.1 The Client hereby agrees that it will not itself, nor through a third party –
14.1.1 use the Platform for any purposes other than in respect of receiving the Services and/or obtaining further information on the Services;
14.1.2 use the Platform or any of the Content for or in conjunction with any illegal, unlawful, or immoral purpose or as prohibited by the provisions hereof and any applicable laws;
14.1.3 use the Platform for any purpose other than personal, non-commercial, and information purposes;
14.1.4 engage in any activity intended to entice, solicit, or otherwise recruit persons to join an organisation, except where such activities are expressly authorised in writing by Intricode, or as permitted by law;
14.1.5 take action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent the Client’s affiliation to any person, or otherwise manipulate or disguise the origin of anything posted or transmitted electronically to Intricode, whether on or through its Platform, or otherwise;
14.1.6 engage in any abuse of electronic mail or spamming, including the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
14.1.7 modify, access, or make available any Content stored on or accessed through the Platform in a manner other than on the Platform;
14.1.8 remove any identification, trademark, copyright, or other notices from the Platform;
14.1.9 make available, upload files that contain software of any other material not owned or appropriately licensed by the Client;
14.1.10 violate the privacy of any person, or attempt to gain unauthorised access to the Products and/or Services rendered by Intricode;
14.1.11 collect or use any content from the Platform for the benefit of a competing merchant;
14.1.12 decompile, disassemble, or reverse engineer any portion of the Platform;
14.1.13 use the Platform in a manner that may infringe the Intellectual Property rights or other proprietary rights of others, including the transmission of pirated software;
14.1.14 use the Platform in any manner which could damage, impair, overburden, or disable the Platform or interfere with any person’s use or enjoyment of the Platform;
14.1.15 use the Platform to transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
14.1.16 use the Platform to post or transmit, anything which is unlawful, defamatory, discriminatory, obscene, offensive, vulgar, threatening, abusive, harassing, harmful, hateful, profane, sexuality explicit, or which carries child pornography, religious or racial slurs, which can be construed as racially, ethnically, or otherwise objectionable in any way, or threatens or encourages bodily harm or the like, or which may violate any person’s personality rights;
14.1.17 use the Platform, icons, site address, or other means to hyperlink other internet sites with any page in the Platform;
14.1.18 frame, nor use framing technologies to enclose the Platform, without the express written consent of Intricode;
14.1.19 gather electronic mail addresses and/or names for commercial, political, charity or like purposes or collect or attempt to collect personal information about third parties without their knowledge or consent; and
14.1.20 act in any way which may, could or does impose an unreasonable or unusually large load of traffic on the Platform, or otherwise interferes with its proper and timely functioning.
15 LINKED SITES
15.1 The Platform may contain links to other websites that are not controlled or maintained by Intricode.
15.2 While Intricode attempts to include only links to those sites which are in good taste and safe for Client, the Client agrees that Intricode will not be responsible for the content, advertising, privacy policies, products, services, or other materials on or available from such linked websites.
15.4 Intricode reserves the right to disable links from third party sites to the Platform, and vice versa.
16 COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
16.1 The Content is provided by Intricode, unless otherwise provided herein.
16.2 The Intellectual Property available on the Platform or to be made available by Intricode or any of its selected service providers or agents are the property of or licensed to Intricode and may not be used other than as set out herein.
16.3 Any uploads by the Client to the Platform will be dealt with as property of the Client.
16.5 The names, images, and logos identifying Intricode or the products and services of a third party, are the Intellectual Property of the Intricode and subject to copyright, design right, and trademark protection. Unless specifically agreed to under these Terms and Conditions, nothing contained herein shall be construed as conferring any licence or right to use any Intellectual Property by Intricode or any other third party.
16.6 E-mail addresses, names, and telephone numbers published on the Platform may not be incorporated into any database used for electronic marketing or similar purposes. The presentation of such details is not permission from Intricode to utilise same.
16.7 Except as specifically provided herein or elsewhere on the Platform, no Content may be copied, reproduced, republished, downloaded, posted, transmitted, or distributed in any way, or otherwise used for any purpose, by any person or entity.
16.8 No Client may add, delete, distort, or otherwise modify the Content. Any unauthorised attempt to modify any Content, to defeat or circumvent Intricode’s security features, or to utilise the Platform for any purpose other than its intended purpose is strictly prohibited.
17 LIMITATION OF LIABILITY AND DISCLAIMERS
17.1 Intricode does not warrant that the Platform, Content, information, or downloads shall be error-free or that they shall meet any particular criteria, performance, or quality. Intricode expressly disclaims all implied warranties, including but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, compatibility, security, and accuracy.
17.2 To the extent permitted by law, the Platform, including any current or future offer of products or services, are provided on an “as is” basis, and may include inaccuracies or typographical errors, and Intricode shall not be held liable for any damage, loss or liability of any nature whatsoever, howsoever caused.
17.3 Intricode makes no warranties or representations as to the availability, accuracy or completeness of the Platform, or any third-party content accessible via a website on the Platform.
17.4 Intricode, its trustees, employees, representatives, or service providers will not be liable for any special, direct, indirect, or consequential damages, expenses, or losses whatsoever, including loss of profits or data, loss of revenue, anticipated savings, goodwill, reputation or any delays, arising out of the use or inability to use the Platform or performance of the Platform or non-performance of the Platform, maintenance, enhancements, events outside its control or force majeure events, even if Intricode has been advised of the possibility of such damages.
17.5 Intricode does not warrant that it has control over the persons who have access to the Platform.
17.6 The Client waives and abandons any and all liabilities and claims of any nature whatsoever, howsoever arising, which he might have against Intricode, and releases Intricode against any and all liability and claims that may arise or accrue to the Client, including but not limited to the Client’s use of the Platform or the Services.
17.7 The use of the Platform is at the Client’s sole risk.
17.8 The Products and Services advertised on the Platform and other marketing material and documents are to be used as a guideline only and may be influenced or changed by variable and/or unforeseen factors.
17.9 Intricode shall not be held liable for any errors or omissions in any of its publications and documentations (including any such material, information, publications, and documentation made available in digital or electronic media format).
Reference to any specific company, products, processes, or services by trade name, trademark, manufacturer, or otherwise on the Platform does not necessarily constitute or imply its endorsement, recommendation, or favouring by Intricode.
19 OTHER TERRITORIES
Intricode makes no representation that the Platform and the Content thereon are appropriate or available for use in other locations or countries. Access to the Platform from territories or countries where the Content is illegal is prohibited. If the Client accesses the Platform from locations outside of the Republic of South Africa, that Client is responsible for compliance with all such local laws.
PART IV – GENERAL
20.1 If in any legal proceedings or arbitration relating to the enforcement by any Party of its rights in terms of these Terms and Conditions, a Court or arbitrator awards costs to any party, such costs shall be determined and recoverable on the scale as between an attorney and his own client and shall include collection charges, the costs incurred by such Party in endeavouring to enforce such rights prior to the institution of legal proceedings and the costs incurred in connection with the satisfaction or enforcement of any award or judgment awarded in favour of such Party in relation to its rights in terms of or arising out of this Agreement.
20.2 It is recorded that the Parties intend that the substantially successful Party should be awarded a full indemnity for all the costs incurred by that party and not merely the costs on the High Court or any other applicable scale.
21 FORCE MAJEURE
21.1 Intricode shall not be liable for any failure to fulfil its duties and obligations in terms of these Terms and Conditions (or to make timeous deliver of an Order or provision of the Services) to the extent that such failure is caused by any event, occurrence, circumstance or condition (whether foreseen or unforeseen) beyond the reasonable control of Intricode and which, despite the exercise of reasonably diligent efforts could not have been prevented, limited or minimised, that affects the powers, rights, duties or obligations of Intricode under this agreement including but not limited to –
21.1.1 a landslide, lightning, earthquake, tornado, floods, drought, or other acts of God;
21.1.2 a pandemic, epidemic, or similar wide-spread health emergency;
21.1.3 failure by its suppliers to deliver;
21.1.4 delays caused as a result of import/export rules and regulations or customs authorities;
21.1.5 governmental regulations, orders by governmental authorities, declarations of state of emergency and disaster (and regulations and directives published thereunder);
21.1.6 the acts of civil or military authority, the acts of a public enemy, war, blockade, sabotage, fire, explosion, bombing, insurrection, riot, civil disturbance, strikes or any major power failure;
21.1.7 material adverse governmental action, including but not limited to any the promulgation of any laws, regulations, directions, or similar promulgation;
21.1.8 unlawful industrial action; and
21.1.9 consumer boycotts resulting from the performance of any powers, rights, duties, or obligations in terms of this agreement,
which materially delays or prevents the performance of Intricode’s duties and obligations to the Client.
21.2 If Intricode is affected by an event, occurrence, circumstance or condition referred to in clause 21.1 above, it shall promptly notify the Client of the event, occurrence, circumstance or condition and the estimated extent and duration of its inability to perform its duties and obligations. A notice on the Platform shall be sufficient notice to the Client.
22 BREACH & TERMINATION
22.1 Failure to comply with these Terms and Conditions constitutes a material breach upon which the Client is permitted to use the Platform, and may result in Intricode taking all or any of the following actions –
22.1.1 immediate, temporary, or permanent withdrawal of the Client’s right to use the Platform;
22.1.2 immediate, temporary, or permanent removal of any Content relating to the Client on the Platform;
22.1.3 issue a warning to the Client;
22.1.4 obtain an order against the Client for specific performance, with or without claiming damages;
22.1.6 disclosure of such information to law enforcement authorities, as deemed necessary in Intricode’s sole discretion.
23 DISPUTE RESOLUTION
23.1 Intricode may demand that a dispute be determined in terms of this clause 23 by written notice given to the parties to the dispute in accordance with the Expedited Rules (“Rules”) of the Arbitration Foundation of Southern Africa (“AFSA”).
23.2 This clause shall not prevent any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction, pending the decision of an arbitrator.
23.3 The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA should either Party, by written notice, require the arbitration to be held on an urgent basis. In such event either Party may apply to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
23.4 The arbitration shall be held –
23.4.1 at Cape Town;
23.4.2 with only the legal and other representatives of the Parties to the dispute present thereat; and
23.4.3 otherwise in terms of the Arbitration Act, No. 42 of 1965 (“Arbitration Act”), unless otherwise provided for herein.
23.5 The arbitrator shall be a practising advocate of the Cape Bar of at least ten years’ standing, appointed by agreement between the parties to the dispute, subject to clause 23.6.
23.6 Should the Parties fail to agree on an arbitrator within 14 days after the giving of notice in terms of clause 23.5, the arbitrator shall be appointed by the Cape Town Secretariat of AFSA, at the request of either party to the dispute.
23.7 The Client hereby consents to the jurisdiction of the High Court of South Africa, Western Cape Division, Cape Town, alternatively the Magistrate’s Court in respect of the proceedings referred to in clause 23.8, which court shall be elected at the instance of Intricode.
23.8 The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court referred to in clause 23.7, at the instance of any of the parties to the dispute.
23.9 The Parties agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
23.10 It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of clause 23.1 shall be resolved strictly in accordance with the provisions of this clause 23. The Parties accordingly agree and undertake as follows -
23.10.1 that it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act;
23.10.2 that it shall not make any application as contemplated in terms of section 20(1) of the Arbitration Act; and
23.10.3 the periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of these Terms and Conditions.
Subject to clause 23, the Client consents to the jurisdiction of the Magistrate’s Court, in respect of any proceedings arising out of these Terms and Conditions notwithstanding that the amount of the claim may exceed the jurisdiction of the court. It shall nevertheless be entirely within the discretion of Intricode as to whether to proceed in such Magistrate’s Court or any other court having jurisdiction.
25 AMENDMENT OF THE TERMS AND CONDITIONS
25.1 Intricode reserves the right to, at its sole discretion, amend, modify, add to, or remove any provisions (in whole or in part) of the Terms and Conditions from time to time.
25.2 Any changes to these Terms and Conditions will become effective upon such changes being posted on the Platform.
25.3 The onus rests on the Client to periodically check the Terms and Conditions on the Platform for any changes or updates therein contained.
25.4 The Client’s continued use of the Platform following the posting of any amendments by Intricode shall be considered notice of the Client’s acceptance to abide by, and be bound by the Terms and Conditions, including any amendments hereto.