(“OPENTENDERS”, “We”, “Our”, or “Us”). These Terms of Services (the “Terms”, “TOS”, or “Agreement”) are a contract between Us and You (“You” or “Your”) and govern Your use of Our website and all of the Services We offer. As such, please read these Terms carefully.
Your use of the our website or Our other related websites (“Site”), toolbars, widgets, applications, mail servers or distribution channels from which We may operate, and Your use of any of Our Services (including without limitation the software, programs, code, technology, offerings, tools, plug-ins, components, upgrades, updates and all related applications, available now or in the future, collectively Our “Services”), whether such Services are accessed through the Site or via another point of access to Our Services, are subject to and conditioned upon Your assent to and compliance with these Terms. Portions of the Services may be subject to other entity’s terms and conditions, and Your use of such entity’s services is subject to and conditioned upon Your acceptance of such additional terms and conditions.
BY ACCESSING THE SITE AND/OR USING THE SERVICES, YOU CONFIRM AND ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND ITS CONTENT, AND (3) THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED THIS AGREEMENT. THE AGREEMENT IS BETWEEN YOU AND OPENTENDERS (PTY) LTD.
If You do not agree to be bound by the terms and conditions of this Agreement, do not use or access the Site or use any of the Services. Use of Our Site or Services is void where prohibited.
From time to time, We may amend this Agreement, in its sole discretion, by posting updated versions at http://www.opentenders.com/terms or by notifying You by other means. All such modifications to the Agreement shall become effective upon the posting of the revised Agreement or by Your receipt of notification of a change to the Agreement. If You do not agree to the new or different terms, You should not use or access the Site or the Services.
We provide various website listing and products for Our customers, including but not limited to the following, each included as part of the Services that We offer: Procurement listings, contract finance facilitations, supplier directory and downloadable products. You may use the Services for Your personal use, commercial use or internal business use in the organization that You represent, so long as You are in compliance with all provisions of this Agreement.
In connection with Your use of the Site or the Services, You may be made aware of services, products, offers and promotions provided by third parties. If You decide to use such third-party services, You are responsible for reviewing and understanding the terms and conditions governing such third-party services, and acknowledge that the third party is responsible for the performance of such services.
In providing the Services, We obtain and rely on certain information from third parties and third-party software and applications. We cannot guarantee the accuracy or completeness of such data.
It is Your obligation to ensure that You fully comply with all applicable laws, regulations and directives with regard to the use of the Site and the Services. For the avoidance of doubt, the ability to access Our Site or the Services does not necessarily mean that Your use thereto are legal under relevant laws, regulations and directives.
Any term defined in the Website Terms of Service will bear the same meaning as defined in the Website Terms of Service when used in these specific terms. In these specific terms the following words have the following meanings:
Harmful Code means any computer code that: is designed to disrupt, disable, harm, or otherwise hinder the operation of any software, hardware or network (generally referred to as “viruses”, “Trojan horses” or “worms”); would disable any software, hardware or network or impair in any way its operation. It does so by running out of a period of time, exceeding an authorised number of copies, advancing to a particular date or other numeral (generally referred to as “time bombs”, “time locks”, or “drop dead” code); would permit any person to access any software, hardware or network of any other person without consent (generally referred to as “trap”, “access code”, “back door” or “trap door” codes); or any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause the software, hardware or networks of any person to stop functioning or to damage or corrupt data, storage media, programmes, equipment or communications, or otherwise interfere with operations;
Illegal Content means content in violation of any law;
Location means the place where our data is situated from time to time;
Misrepresentation by you includes: actions to deceive, mislead, defraud, or otherwise make incorrect representations to any person regarding any fact or circumstance; impersonating or attempting to impersonate or otherwise misrepresenting your identity to any person for whatever purpose; altering the content of communications you receive and then forwarding it to others without indicating the nature of the alterations; or forging or otherwise manipulating the origination details and data on any electronic data message generated by the Server with a view to disguising or deleting the origin of anything posted or transmitted, including the use of “Socks Proxies”, “EZBounce”, “Vhosts”, “BNC’s” or any other software or hardware methods used to disguise or misrepresent your own IP address;
Server means the computer hardware, machinery, and equipment on which the software operates;
Services means the Our Products and Services that we provide to You;
Software means the operating system and applications we provide to you;
System Abuse means any conduct that does or may: damage, impair, overburden, or disable;
interfere with any other person’s use of, or compromise or tamper with the security of, including spamming and mass messaging, the use of software and technologies known as “floodbots”, “clonebots”, “automated client” (for example “bots”, “fserv” or “script”), nuking and nuking tools (for example”7th Sphere”); our or any other person’s software, hardware, systems, networks, or the Server.
4. UNDERTAKINGS AND ACKNOWLEDGEMENTS
We agree to use all reasonable steps to provide the Services to you on a continuous basis, for the duration of the Agreement.
Although we use reasonable care and diligence to ensure that the Services are available, accurate, complete, correct, error free, secure, up to date and reliable, the Services are rendered “as is” and “as available” and are used at your own discretion and risk.
We do not own nor do We claim ownership of the content submitted to be included in and/or displayed on our website, email notifications or included/displayed in any other Service (“Content”). Content includes, but is not limited to: information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials included on a site via the Service. This Content is not our Content and as such, You are responsible for all of the Content that You read, upload, post, transmit or otherwise make available via Our Services. We do not control the Content You read or post via Our Services.
You are responsible for any Content that may be lost or unrecoverable through use of the Services. You are encouraged to archive Your Content regularly and frequently.
Our Services allow Us to import or link certain Content hosted on third-party websites into the Services. This Content isn’t owned by Us, and thus if it is no longer available or accessible to a user, then those portions of the links that reference such Content will not work.
Through Our Services, We may provide certain Content that is subject to proprietary rights of third parties. OPENTENDERS shall have the right, at any time, at is sole and exclusive discretion to remove such Content from the Services and/or disable access to such Content.
The following restrictions apply to all images made available to you via the Service.
You shall not use any image:
- except solely as incorporated into your company profile
- together with pornographic, defamatory, or unlawful content or in such a manner that it infringes upon any third party’s trademark or intellectual property rights.
- portraying any person depicted therein (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) as endorsing a political party, candidate, elected official, or opinion; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
- as a trademark, service mark, or logo.
By using the Services, You may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will We be liable for Your Content or the Content of any third party, including, but not limited to, for any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that We do not pre-screen Content, but that We shall have the right (but not the obligation) to refuse, move or delete any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in Our sole discretion. You bear all risks associated with the use of any Content. You acknowledge and agree that We may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect Our rights, property, or personal safety and those of Our users and the public.
OPENTENDERS SHALL HAVE THE RIGHT TO DISABLE THE ACCESS TO ANY CONTENT AND/OR DELETE IT AT ITS SOLE AND EXCLUSIVE DISCRETION, WITH NO LIABILITY TO US, AND YOU SHALL NOT BE ENTITLED TO ANY REIMBURSEMENT OF ANY AMOUNT PAID BY YOU.
6. REGISTRATION AND ACCOUNT MANAGEMENT
Some functions of the Services require registration, and as part of the process You will be requested to provide certain information, including among others: Your name, email address, company name, field of business and website URL (“Registration Data”). By using the Services, You agree to:
- Provide true, accurate, current and complete Registration Data as prompted by the registration process;
- Maintain and promptly update the Registration Data to keep it accurate, current and complete;
- Maintain the security and confidentiality of Your password and any other security or access information used by You to access the Site or Services;
- Ensure that You log out of the Services at the end of each session using the Services.
- Refrain from transferring Your user account on the Services to any other party without Our prior written consent;
- Refrain from impersonating any person or entity or misrepresent Your identity or affiliation with any person or entity, including using another person’s username, password or other Registration Data; and
- Immediately notify Us in writing if You become aware of any loss, theft or use by any other person or entity of any of Your Registration Data in connection with the Site or the Services or any other breach of security that You become aware of involving or relating to the Site.
You represent that any communications and all other activities through use of Your Registration Data were sent or authorized by You, and You agree and understand that You are fully responsible for all activities that occur under Your Registration Data.
We may, in Our sole discretion and without notice or liability to You or any third party, immediately suspend or terminate Your account and refuse any and all current or future access to and use of the Services (or any portion thereof). Grounds for such termination may include, but are not limited to, extended periods of inactivity, loss, theft or unauthorized use of Your Registration Data, violation of the letter or spirit of this Agreement, providing content including without limitation Registration Data that is inappropriate or offensive in Our discretion, or if We have reasonable grounds to suspect any of the Registration Data that You provided is inaccurate, not current or incomplete.
You declare that by providing Your Registration Data to Us, You hereby consent to, Us sending, and You receiving, by means of telephone, facsimile, SMS or e-mail, communications containing content of a commercial nature relating to Your use of the Site, the Services and related services, including further information and offers from Us that We believe You may find useful or interesting, such as newsletters, marketing or promotional materials. You acknowledge that We do not have to obtain Your prior consent (whether written or oral) before sending such communications to You, provided that We shall immediately cease to send any such further communications should You notify Us in writing that You do not wish to receive such commercial content anymore.
7. PRICING AND PAYMENTS
By using the Services, You agree to pay all associated subscription fees. In order to ensure that you do not experience any interruption or loss of services due to the lapse of any particular subscription period, the Services operate with automatic renewal, on a recurring-fees basis (except where explicitly stated otherwise). Accordingly, where applicable, OPENTENDERS will attempt to automatically renew the applicable Services for a renewal period equal in time to the original subscription period for such Service, and automatically charge you the applicable fees using the payment method you have on file with OPENTENDERS. In a case where we do not have any payment on file, it is your responsibility to login to our Customer Portal and pay for Services manually.
OPENTENDERS reserves the right to establish the price for every Service We offer. We may change the price of any Service at any time, in Our sole discretion. We reserve the right to charge a price for a Service that was previous offered for free. If We decide to increase the price of Service for which You are subscribed, We will make every effort to communicate this pricing change to You via email. We do not need to notify You if We decide to raise the price of a Service for which You are not subscribed.
If and when participating in a free trial of a Service, You shall have the right to use the Service for the duration of the free trial without charge until the expiration date of the trial at which point Services shall be discontinued if You do not elect to purchase a subscription to the Service.
We have no knowledge of, nor interest in your content hosted by us on our email and web servers. We also do not contribute to or approve the content. Nothing that we do in the performance of our obligations must be seen as an assumption of responsibility or liability by us as a result of any content. In particular, the limitation of liability contained in the Website Terms of Service will apply specifically to any loss, destruction, or corruption of your data, irrespective of the cause, including our negligence and any system error or failure, whether foreseen or unforeseen.
- All recurring invoices for Services are due on the due date indicated on the invoice or order form.
- Invoices are generated 30 days (in case of monthly billing term) and 60 days (in case of annual billing term) in advance, the due date is always stated on the invoice.
- Invoice automatic reminder will be sent 7 days before the invoice due date.
- If the invoice is not paid by the due date, 3 reminders will be sent on the 1st, 2rd and final reminder on the 3rd.
- If the invoice is still not paid, the service is automatically suspended.
- All accounts that are 30 days overdue will automatically be terminated and information deleted from our servers, unless an arrangement has been made with our billing department.
10. EMAIL NOTIFICATIONS
We will: endeavour to make Our email notification system reliable; Do our best to support the setup and configuration; and not be held responsible if there is any incompatibility between our Systems and any other third party application.
12. PROPRIETARY RIGHTS
You acknowledge that Our Site and the Services, including without limitation the Software, the trademarks, service marks and logos contained on the Site (“Marks”), are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to the Site and the Services, and all Our Content contained therein, are reserved by Us and Our licensors or partners.
You acknowledge that Our Content is protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual Content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to Our Content, the Site and the Services not expressly granted herein are reserved.
13. RELEASE & DISPUTES WITH OTHERS
You are solely responsible for Your interaction with other users of the Services and other parties with whom You come in contact through Your and their use of Our Site or the Services. We reserve the right, but have no obligation, to monitor and/or manage disputes between You and other users of the Services. If You have a dispute with one or more users of the Site or the Services, You release Us (and Our officers, directors, agents, subsidiaries, joint ventures, partners, suppliers and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
14. LINKS TO THIRD-PARTY WEBSITES
15. LINKS TO THIS SITE
Subject to the terms of this Agreement and so long as this Agreement is not terminated, We grant to You a nonexclusive, non-transferable, non-sublicensable right to display on Your website a link to the Site’s homepage, as long as Your use is not misleading, illegal or defamatory, or Your website is not obscene, pornographic, inappropriate or illegal. You may display the logo only in the form and size provided to You. You may not use the logo in any way that suggests that We endorses or sponsors Your site, or that tarnishes, blurs or dilutes the quality of Our logo, trademarks or any associated goodwill, including without limitation displaying the logo on any page that contains infringing, misleading or illegal content. All use of and goodwill associated with our logo shall inure to Our benefit.
16. USER DATA AND YOUR FEEDBACK
The data related to Your visit of Our Site and use of Our Services as well as any feedback you may provide to Us, including without limitation, images, words, ideas, knowledge, techniques, marketing plans, information, questions, answers, suggestions, emails comments, and the like shall be considered non-confidential nor of a proprietary nature. In providing this material, You authorize Us to use it and any images, developments or derivatives thereof, according to Our needs as determined in Our sole discretion, including for public relations and promotion of the Site and the Services in the online and offline media, and all without requirement of any additional permission from You or the payment of any compensation to You. You also agree that (i) by submitting unsolicited ideas to Us or any of Our or representatives, You automatically forfeit Your right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to Us or any of Our employees or representatives automatically become the property of OPENTENDERS. You hereby assign and agree to assign all rights, title and interest You have in such feedback and ideas to OPENTENDERS together with all intellectual property rights therein.
17. DISCLAIMERS OF ALL WARRANTIES
OPENTENDERS’S CONTENT, THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE SITE, THE SERVICES OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE OR AVAILABILE; (II) WE DO NO ENDORSE OR APPROVE ANY CONTENT PROVIDED BY ANY PARTY THAN US AND DISCLAIM ALL LIABILITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THIS SITE, THE SERVICES OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE.
18. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INJURY, DEATH, ACT OF GOD, ACCIDENT, DELAY, DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THIS SITE OR THE SERVICES (INCLUDING WITHOUT LIMITATION INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF ACCESSING THIS SITE OR THE SERVICES), (II) ACTION OR INACTION IN CONNECTION WITH THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) STATEMENTS OR CONDUCT OF YOU OR ANY THIRD PARTY ON THIS SITE OR YOUR ]SITE OR MOBILE WEBSITE, INCLUDING WITHOUT LIMITATION ANY SUBMISSIONS THEREON; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Us and You. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or in connection with the Site, the Services, the Content or the Agreement must be filed within thirty (30) days after such claim or cause of action arose or be forever barred.
In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, You agree that Our aggregate liability shall not exceed amount paid by You to Us pursuant to this Agreement.
YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL CLAIMS, LIABILITIES, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED) RELATED TO IN ANY WAY TO: (I) YOUR USE OF, ACCESS TO OR RELIANCE ON THIS SITE, THE SERVICES OR THE CONTENT, OR (II) YOUR VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS OR REGULATIONS.
We will provide You with written notice of such claim. You will not enter into any settlement or compromise of any such claim without Our prior written consent. We may assume the exclusive defense and control of any matter subject to indemnification by You. In all events, You shall cooperate fully in the defense of any claim.
20. GOOGLE TRANSLATE
When using our multi-language feature, you will have the option of translating the existing Content of the website using Google Translate. Google would like you to be aware of the following disclaimer:
“THIS SERVICE MAY CONTAIN TRANSLATIONS POWERED BY GOOGLE. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.”
21. THIRD PARTY SERVICES
The Services enable you to engage and/or access certain third party services and tools, including apps, websites, documents (collectively, “Third Party Services”).
You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered and/or accessed by you, OPENTENDERS merely acts as an intermediary platform between you and such Third Party Services, and OPENTENDERS does not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. OPENTENDERS will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third party Services.
Any and all use of such Third Party Services shall be done solely at your own risk and responsibility, and may be subject to such legal terms which govern such Third Party Services, which you are encouraged to review before engaging with them.
While we hope to avoid such instances, OPENTENDERS may, at any time and at its sole discretion, suspend, disable access to or remove from your account and/or the Services, any Third Party Services – whether or not incorporated with or made part of your account and/or website(s) at such time – without any liability to you or to any end users.
22. COPYRIGHTED MATERIALS, INFRINGEMENT NOTICES AND TAKEDOWN
YOU SHALL NOT USE THE SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. We have adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of OPENTENDERS users who infringe or are believed to be infringing the rights of copyright holders:
If You believe that any material contained on this Site infringes Your copyright, You should notify this Site’s Designated Agent listed below by email with the following information:
Attn: OPENTENDERS Legal
Email: legal at opentenders.com
Your notice to Our Legal Department should be in English and contain the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; (b) a description of such copyrighted work(s) and an identification of what material in such work(s) is claimed to be infringed; (c) a description of the exact name of the infringing work and the location of the infringing work on the Services; (d) information sufficient to permit Us to contact You, such as Your physical address, telephone number and e-mail address; (e) a statement by You that You have a good faith belief that the use of the material identified in the manner complained of is not authorized by the copyright owner, its agent, or the law; (f) a statement by You that the information in the notification is accurate and, under penalty of perjury that You are authorized to act on the copyright owner’s behalf.
The Copyright Agent will only respond to any claims involving alleged copyright infringement. Notwithstanding this section, We reserve the right at any time and in Our sole discretion, to remove content which in Our sole judgment appears to infringe the intellectual property rights of another person.
23. GOVERNING LAW AND EXCLUSIVE COURTS
This Agreement will be governed by and construed in accordance with laws of the Republic of South Africa without regard to its choice of law or conflicts of law principles. You hereby consent to the exclusive jurisdiction and venue in the courts in the Randburg Magistrate Court.
No waiver of any term of this the Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Us without restriction. You agree that no joint venture, partnership, employment, franchise or agency relationship exists between You and Us as a result of the use of the Site or the Services. This Agreement comprises the entire agreement between You and Us, states Our and Our suppliers’ entire liability and Your exclusive remedy with respect to the Site and Services, and supersedes all prior agreements pertaining to the subject matter thereof. If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance. No provision of the Agreement shall be construed against Us but rather shall be construed in a neutral and fair manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.
Last update: 10 August 2018