These terms and conditions are binding and enforceable against all persons that access the Hout Bay Thrive Fitness (Pty) Ltd website or any part thereof (hereafter referred to as “the Thrive Fitness website”) in terms of section 11(3) of the Electronic Communications and Transactions Act 25 of 2002 (“the ECT Act”).
If you do not agree to these terms and conditions you must leave the Thrive Fitness website now, as further use will automatically bind you to these terms and conditions.
A copy of the ECT Act may be downloaded from http://www.polity.org.za under the heading “Legislation and Policy”.
Definitions and interpretation
· “Thrive Fitness” means Hout Bay Thrive Fitness (Pty) Ltd (Company Reg No. 2018/409053/07);
· “Thrive Fitness website” means the Thrive Fitness site located at www.thrivefitnessSA.co.za and includes any part or element thereof;
· “User” means any person who enters or uses the Thrive Fitness website, notwithstanding the fact that such a person only visited the home page of the Thrive Fitness website;
· References herein to the singular includes the plural and vice versa; and
· Notwithstanding the fact that hyperlinks in these terms and conditions to copyright notices and legislation should be deemed part of these terms and conditions in terms of section 11 of the ECT Act, the fact that some or all of the hyperlinks may be non-operational, shall not play a role in determination of the validity and interpretation of these terms and conditions.
Thrive Fitness was established in 2018 as a boutique gym offering, and currently operates from one venue based in Hout Bay in the Western Cape in the Republic of South Africa.
2. ALLOWED USE & LICENSE
2.1.Thrive Fitness licenses the User to view, download and print the content of the Thrive Fitness website, provided that such content is used for personal, educational and/or non-commercial purposes only.
2.2.Content from the Thrive Fitness website shall not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of Thrive Fitness.
2.3.Users may only access and use the Thrive Fitness website for legal purposes.
2.4.The caching of the Thrive Fitness website shall only be allowed if:
2.4.1. purpose of the caching is to make the onward transmission of the content from the Thrive Fitness website more efficient;
2.4.2. The cached content is not modified in any manner whatsoever;
2.4.3. The cached content is updated at least every 12 (twelve) hours; and
2.4.4. The cached content is removed or updated when so required by Thrive Fitness.
2.5.If any User uses content from the Thrive Fitness website in breach of the provisions detailed herein:
2.5.1. Thrive Fitness reserves the right to claim damages from the User;
2.5.2. Thrive Fitness reserves the right to institute criminal proceedings against the User; and
2.5.3. Thrive Fitness shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the User or any third party who obtained any content from the User.
2.6.Hyperlinks to the Thrive Fitness website from any other source shall be directed at the home page of the Thrive Fitness website. Thrive Fitness shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of content from the Thrive Fitness website, if such content was accessed through a hyperlink not directed at the home page of the Thrive Fitness website. Persons that wish to link to content beyond the home page of the Thrive Fitness website shall do so at their own risk and indemnify Thrive Fitness against any loss, liability or damage that may result from the use of content from the Thrive Fitness website, if such content was accessed through a hyperlink not directed at the home page of the Thrive Fitness website. Thrive Fitness non-liability for deep linking is based on the fact that deep links bypass these terms and conditions.
2.7.Users may quote small and reasonable amounts of content available from the Thrive Fitness website only if such quote is placed in inverted commas and acknowledged.
2.8.No person may frame the Thrive Fitness website, in any manner whatsoever, without the prior written consent of Thrive Fitness.
2.9.Apart from bona-fide search engine operators and use of the search facility provided on the Thrive Fitness website by Users, no person may use or attempt to use any technology or applications (including web crawlers or web spiders) to search or copy content from the Thrive Fitness website for any purposes, without the prior written consent of Thrive Fitness.
2.10. All licenses and/or permissions granted in terms of this clause 2 are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Thrive Fitness at any time without giving reasons therefore.
3. INTELLECTUAL PROPERTY RIGHTS & DOMAIN NAME USE
3.1.All intellectual property on the Thrive Fitness website, including but not limited to content, trademarks, domain names, patents, design elements, software, databases, text, graphics, icons and hyperlinks are the property of or licensed to Thrive Fitness and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the User in clause 2, all other rights to intellectual property on the Thrive Fitness website are expressly reserved.
3.2.Thrive Fitness is a registered trademark and Users agree not to use the trademark as an elements of a domain name or sub domain name, notwithstanding the fact that such domain name use or registration may be allowed in terms of trademark and/or constitutional law. Upon request to do so a User shall immediately cease to use such domain name and transfer it to Thrive Fitness at the cost of the User.
4. SOFTWARE & EQUIPMENT
It is the responsibility of the User to acquire and maintain, at his/her own expense, the computer hardware, software, lines and access accounts required to access the Internet and the Thrive Fitness website and/or download content from this web site.
5. DISCLOSURES REQUIRED BY SECTION 43 OF THE ECT ACT
Access to the services, content, software and content downloads available from the Thrive Fitness website is classified as “electronic transactions” in terms of the ECT Act and therefore Users have the rights detailed in Chapter 7 of the ECT Act and Thrive Fitness has the duty to disclose the following information:
5.1.The full name and legal status of the web site owner: Hout Bay Thrive Fitness (Pty) Ltd;
5.2.31 Victoria Avenue, Hout Bay, Cape Town, 7806;
5.3.Main business: The main business of Thrive Fitness is detailed at http://www.thrivefitnesssa.co.za;
5.4.The web site address of the Thrive Fitness website is: http://www.thrivefitnesssa.co.za;
5.5.The official e-mail address of the Thrive Fitness website is:email@example.com;
5.6.The costs associated with the access and use of the Thrive Fitness Product is available from http://thrivefitnesssa.co.za;
5.7.Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:
5.7.1. access to the Thrive Fitness website;
5.7.2. the inability to access the Thrive Fitness website;
5.7.3. the services and content available from the Thrive Fitness website; or
5.7.4. these terms and conditions,
shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Cape Town in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client. The expedited rules of the Arbitration Foundation of South Africa may be downloaded from the following web site: http://www.arbitration.co.za;
5.8.Cooling-off period: In terms of the operation of section 42(1)(d) of the ECT Act, the cooling-off provisions of the ECT Act do apply to this web site; and
5.9.Users may lodge complaints concerning the Thrive Fitness website with Thrive Fitness at (telephone) 0860 200 911 or (email) firstname.lastname@example.org.
6. CHANGES AND AMENDMENTS
Thrive Fitness expressly reserves the right, in its sole and absolute discretion, to do any of the following, at any time without prior notice:
6.1.change these terms and conditions;
6.2.change the content and/or services available from the Thrive Fitness website;
6.3.discontinue any aspect of the Thrive Fitness website or service(s) available from the Thrive Fitness website; and/or
6.4.change the software and hardware required to access and use the Thrive Fitness website.
7.1.Thrive Fitness shall take all reasonable steps to protect the personal information of Users and for the purpose of this clause, “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from:http://www.polity.org.za.
7.2.Thrive Fitness may electronically collect, store and use the following personal information of Users:
7.2.1. name and surname;
7.2.2. contact numbers;
7.2.3. non-personal browsing habits and click patterns;
7.2.4. e-mail address; and
7.2.5. IP address.
7.3.Thrive Fitness collects, stores and uses the abovementioned information for the following purposes:
7.3.1. communicate requested information to the User; and
7.3.2. to compile non-personal statistical information about browsing habits, click-patterns and access to the Thrive Fitness website.
7.4.Information detailed above is collected either electronically by using cookies or is provided voluntarily by the User. Users may determine cookie use independently through their browser settings.
7.5.Thrive Fitness may collect, maintain, save, compile, share, disclose and sell any information collected from users, subject to the following provisions:
7.6.Thrive Fitness shall not disclose personal information from Users unless the User consents thereto;
7.7.Thrive Fitness shall disclose information without the User’s consent only through due legal process; and
7.8.Thrive Fitness may compile, use and share any information that does not relate to any specific individual.
7.9.Thrive Fitness owns and retains all rights to non-personal statistical information collected and compiled by Thrive Fitness.
8. HYPERLINKS TO THIRD PARTY SITES
8.1.Thrive Fitness may provide hyperlinks to web sites not controlled by Thrive Fitness (target sites) and such links do not imply any endorsement, agreement on or support for the content of such target sites; and
8.2.Thrive Fitness does not editorially control the content on such target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access or content available on or through such target sites.
9.1.Thrive Fitness shall take all reasonable steps to secure the content of the Thrive Fitness website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, Thrive Fitness does not make any warranties or representations that content shall be 100% safe and secure;
9.2.Thrive Fitness is under no legal duty to encrypt any content or communications from and to the Thrive Fitness website and is also under no legal duty to provide digital authentication of any page on the Thrive Fitness website;
9.3.Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, to the Thrive Fitness website or the server and computer network that support the Thrive Fitness website. Notwithstanding criminal prosecution, any person who delivers any damaging code to the Thrive Fitness website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Thrive Fitness harmless against any and all liability, damages and losses Thrive Fitness and its partners / affiliates may suffer as a result of such damaging code;
9.4.Users may not develop, distribute or use any device to breach or overcome the security measures of the Product and Thrive Fitness reserves the right to claim damages any and all persons concerned with a security failure or breach; and
9.5.Any User who commits any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by Thrive Fitness and its partners / affiliates. The ECT Act may be downloaded from:http://www.polity.org.za
10.DISCLAIMER & LIMITATION OF LIABILITY
10.1. Subject to the provisions of sections 43(5) and 43(6) of the ECT Act, if applicable, and as far as allowed by law, Thrive Fitness (including its owners, employees, suppliers, Internet service providers, partners, affiliates and agents) shall not be liable for any damage, loss or liability of any nature incurred by whomever and resulting from:
10.1.1. access to the Thrive Fitness website;
10.1.2. access to web sites linked to the Thrive Fitness website;
10.1.3. inability to access the Thrive Fitness website;
10.1.4. inability to access web sites linked to the Thrive Fitness website;
10.1.5. content available on the Thrive Fitness website;
10.1.6. services available from the Thrive Fitness website;
10.1.7. downloads and use of content from the Thrive Fitness website;
10.1.8. any other reason not directly related to Thrive Fitness gross negligence.
10.2. The Thrive Fitness website is supplied on an “as is” basis and has not been compiled to meet the User’s individual requirements. It is the responsibility of the User to satisfy himself or herself, prior to entering into this agreement with Thrive Fitness, that the content available from and through the Thrive Fitness website meet the User’s individual requirements and is compatible with the User’s computer hardware and/or software.
10.3. Information, ideas and opinions expressed on the Thrive Fitness website should not be regarded as professional advice or the official opinion of Thrive Fitness and Users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the Thrive Fitness website.
10.4. Thrive Fitness does not make any warranties or representation that content and services available from the Thrive Fitness website will in all cases be true, correct or free from any errors. Thrive Fitness shall take all reasonable steps to ensure the quality and accuracy of content available from the Thrive Fitness website.
10.5. Thrive Fitness does not make any warranties or representations that the Thrive Fitness website shall be available at all times. Users acknowledge that the Thrive Fitness website may be unavailable due to updates or other causes beyond the reasonable control of Thrive Fitness, including, but not limited to virus infection, unauthorised access, power failure or other “acts of God”.
11.REMOVAL & CORRECTION OF CONTENT
Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from the Thrive Fitness website to Thrive Fitness and Thrive Fitness undertakes to correct and/or remove such content or any part thereof if the person reporting such content provided reasonable grounds to prove the alleged nature of the content.
12.INTERCEPTION OF COMMUNICATION
12.1. Subject to the provisions of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the User agrees to Thrive Fitness’ right to intercept, block, filter, read, delete, disclose and use all communications send or posted by the User to the Thrive Fitness website, its staff and employees; and
12.2. The User agrees and acknowledges that the consent provided by the User in clause 12.1 satisfies the “writing” requirement as detailed in the ECT Act and the RIC Act.
13.ENTIRE AGREEMENT & SEVERABILITY
13.1. Subject to the provisions of the Content Use License, these terms and conditions constitute the entire agreement between Thrive Fitness and the User and shall take precedent over any disclaimers and/or legal notices attached to any communications and/or postings received by Thrive Fitness from the User.
13.2. Any failure by Thrive Fitness to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision.
13.3. In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
14.AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT
The User and Thrive Fitness agree that:
14.1. the User shall be bound to these term and conditions and such agreement is concluded in Cape Town (South Africa) at the time the User enters the Thrive Fitness website for the first time or immediately after the User indicated consent as required in Content Use Agreement;
14.2. data messages (as defined in the ECT Act) addressed by the User to Thrive Fitness shall only be deemed to have been received if and when responded to;
14.3. data messages (as defined in the ECT Act) addressed to the User by Thrive Fitness shall be deemed to be received by the User as detailed in section 23(b) of the ECT Act;
14.4. data messages (as defined in the ECT Act) addressed by the User to Thrive Fitness shall be deemed to have been created and send by the User from within the geographical boundaries of South Africa;
14.5. electronic signatures, encryption and/or authentication is not required for valid electronic communications between the User and Thrive Fitness; and
14.6. the User agrees and warrants that data messages that are sent to Thrive Fitness from a computer, IP address or mobile device normally used by or owned by the User, was sent and/or authorised by the User personally.
15.APPLICABLE & GOVERNING LAW
The Thrive Fitness website is hosted, controlled and operated from the Republic of South Africa and therefore the South African law enforced by the South African courts governs the use or inability to use the Thrive Fitness website, its content, services and these terms and conditions.
Thrive Fitness shall not be liable for costs incurred by Users to obtain professional advice relating to these terms and conditions.
© 2019. ALL RIGHTS NOT EXPRESSLY ALLOWED ARE RESERVED.