VENDOR TERMS AND CONDITIONS
In this Agreement:
- clause headings are for the convenience and are not to be used in its interpretation;
- unless the context indicates a contrary intention, an expression which denotes:
- any gender includes the other gender;
- a natural person includes a juristic person and vice versa;
- the singular includes the plural and vice versa;
- the following expressions bear the meanings assigned to them below and cognate expression bear corresponding meanings;
- “Agreement” means this agreement;
- “Commencement Date” means the date on which the last signing Party hereto signs this Agreement, and on which date this Agreement shall come into effect, as recorded in item 3 of the above Table;
- “Company” means 3J Medical (Pty) Ltd (Registration Number: 2018/631111/07) a private company duly incorporated in accordance with the company laws of South Africa whose full and further details are more fully defined in item 1 of the above table;
- “Party” or “Parties” means the Company or the Vendor, or both, as the context implies;
- “Products” mean the Products as sold by the Vendor on the Website;
- “Purchaser” means a natural person or a person duly authorised by an entity who purchases a Product through the Website;
- “Company Services” means the services provided by the Company to the Vendor as set out in paragraph 4 below;
- “Vendor” means the Vendor as more fully defined in item 2 of the above table; and
- “Website” means the Website as owned, hosted and managed by the Company on which the Vendor’s Products are sold to the Purchaser and which is situated at the following URL: http://www.3jmedical.africa.
If any provision is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of the Agreement.
Words and expressions defined in any clause shall, for the purpose of that clause, bear the meaning assigned to such words and expressions in such clause.
To the extent that there exists any inconsistency between the terms of this Agreement and the general Website Terms and Conditions viewable here 3jmedical.africa/generalterms the terms herein shall prevail to the extent of any inconsistency unless expressly provided otherwise herein.
It is recorded that The Vendor is desirous of entering into an agreement with the Company on the basis whereby the Company shall permit the Vendor to display its Products on the Website for sale to a Purchaser, and wishes to formalise the terms comprising same.
DURATION AND TERMINATION
This Agreement shall commence on the Commencement Date and endure indefinitely, subject, without prejudice, to the right of either Party to terminate the Agreement by giving the other Party 2 (two) weeks’ written notice of termination, with the understanding that on termination all outstanding orders are to be honoured by the Vendor and delivered to the Purchaser timeously.
Notwithstanding the provisions contained in this Agreement, the Company shall be entitled to terminate this Agreement forthwith on written notice to the Vendor if the Vendor breaches this Agreement or fails to provide the Products in accordance with the standards and requirements of the Company.
The Company provides the Vendor with the following Company Services in order that it may sell its Products to a Purchaser through the Website:
- the creation of and access to a virtual storefront;
- the capturing of, categorizing and uploading of the Products to be sold on the Website;
- facilitation of sales to a Purchaser; and
- after sales support where required, and at the discretion of the Company based on the type of support required.
ONBOARDING OF VENDOR
Only a Vendor may make use of the Company Services.
A potential Vendor shall submit a registration application through the Website, who/which, if approved by the Company, shall then become a registered Vendor.
The Vendor shall thereafter be allocated log in details to the Website and shall gain access to a webpage (their digital store front) on which its Products may be advertised, together with a back-end dashboard, which dashboard shall enable the Vendor to:
- monitor its sales,
- obtain sales reports;
- obtain store front traffic reports (when implemented);
- interact with a Purchaser;
- run promotions; and
- launch certain marketing campaigns.
The Vendor shall thereafter:
- meet with a representative of the Company, either in person or via video conference during which meeting the representative shall assist the Vendor in uploading the Products to be sold on the Website, as well as provide training as to the use of the website; and
- meet with a marketing representative of the Company who will, if required and at the Company’s discretion, assist the Vendor with its digital marketing strategy relating to their online store.
The Vendor undertakes to sell Products of a good quality on the Website.
The Vendor shall be required to complete an excel template as provided by the Company, setting out:
- the name and description/function of each Product;
- the unpackaged dimensions of each Product;
- a stock keeping code (“SKU”), part number or product code for each Product;
- a clear, high quality photo (or rendering) of each Product; and
- the available quantity of each Product.
The Vendor undertakes to update the dashboard a minimum of once a day in order to ensure that the information as set out in clause 2 remains current.
There is no limit as to how many Products a Vendor may have for sale at any one time.
In the event of a Product being sold out, the line being discontinued, or it not being available for purchase, the Vendor is required to immediately remove the Product from the Website, which removal can be performed without the assistance of the Company.
Should a Vendor wish to upload more Products to the Website it is able to do so through the assistance of the Company, alternatively this can be done by the Vendor directly through a manual process. However, should a Vendor elect to make use of the manual process there will be a delay in having the Products displayed on the Website as they will first be submitted to the Company for approval.
LIMITATION ON PRODUCTS TO BE SOLD
The following items shall not be recognised as Products by the Company, and accordingly may not be sold on the Website:
- pharmaceuticals that require a script;
- products not related to the medical industry in any manner, unless authorised by the Company;
- any sexual device, sexual aid, adult toys or pornographic material;
- any hazardous or biohazardous materials including medical waste;
- shipments of any materials prohibited by national, provincial or local law; or
- any Product, which in the view of the Company, is sub-standard.
The Vendor shall abide by the Company’s decision to remove a Product that a Vendor has put forward for sale.
The Vendor further shall not:
- upload any Products which have not been approved by the Company;
- engage in any form of unethical behavior; and
- act in any manner which may be construed as not being compliant with the general Website Terms and Conditions.
Any failure by the Vendor to act in accordance with the terms contained in this clause 8 may be interpreted as a breach of the Agreement and lead to the termination thereof, at the discretion of the Company.
- All Product sales generated by the Vendor through the Website shall be facilitated through the Company, with the company receiving any and all amounts on behalf of the Vendor.
- The Vendor, from the Commencement Date, agrees that the Company may deduct a 10% (ten percent) fee (excluding VAT) from the total amount of each purchase.
- The 10% (ten percent) fee as referred to above may be changed at the discretion of the Company, however the Company undertakes to provide the Vendor with at least 1 (one) months’ notice in respect of any increase in order that the Vendor may adjust its selling price if it wishes to do so.
- The Company shall pay to the Vendor on a two-week cycle (being the 15th and 30th of each month) via EFT all proceeds generated by the Vendor as follows:
- in respect of Products purchased on the 1st of the month up to and including the 15th of the same month, payment to the Vendor shall occur on the 30th day of the month; and
- in respect of Products purchased on the 16th of the month up to and including the last day of the same month, payment to the Vendor shall occur on the 15th day of the following month.
- All payments made to the Vendor by the Company shall be less the 10% (ten percent) fee as referred to in clause 2 above.
- The vendor can request a special arrangement with the Company regarding payment of proceeds. Any changes to the above are to be confirmed in writing and signed as an addendum to this agreement.
- The vendor is obligated to pay the relevant monthly subscription to the Company based on the following schedule:
Number of products listed on the Marketplace
Monthly Subscription Fee
1 to 50 items
51 to 100 items
100 to 250 items
- The Vendor undertakes that the price of the Product as reflected on the Website shall be the same as that charged by the Vendor both on the Website and through any other outlet through which the Vendor may sell the Product.
- The Vendor undertakes not to enter into private negotiations with a Purchaser regarding the sale of the Product through another outlet, thereby circumventing payment of the 10% (ten percent) fee to the Company.
UNIFORMITY BETWEEN THE SAME PRODUCTS AS OFFERED BY BOTH THE VENDOR AND THE COMPANY
- In the event of the Vendor and the Company both displaying the same Product for sale on the Website, the Vendor shall ensure that:
- the selling price together with all other incidental costs and the terms and conditions governing the sale shall be the identical, or at least of the same standard as that offered by the Company unless the specific Product falls to be a private promotion offered only to a Vendor’s direct purchasers via email, whatsapp or sms;
- the return / refund policy together with the purchaser service and after sales service as offered by the Vendor on its own website shall be the same as that offered by the shall be the identical, or at least of the same standard as that offered by the Company; and
- the website content of the Vendor’s own website insofar as it relates to the same Products offered on the Website shall be of the same standard and carry the same information.
- In the event of the content and/or information on the Website being substandard to that displayed on the Vendor’s website, then the Vendor shall advise the Company thereof and make compensation to any Purchaser which may have been adversely affected by the failure of the Vendor to maintain the information on the Website.
- Should the Vendor run any special offers on its own website, the store front on our Website shall be updated to record the special offer in respect of the same Product(s).
- The Vendor shall further make the Company aware of all special offers that it may be offering at any given time by contacting the Company at support@3JMedical.africa (alternatively through the Vendor portal).
- In the event that the special offer is made in respect of a Product that the Company and the Vendor both sell and the Company is unable to match the special offer then the Vendor shall, where commercially possible, make the same special offer available to the Purchasers of the Company by reducing the price of the Product accordingly for as long as the special offer is in practice.
- The Company may elect not to permit special offers or promotions as offered by the Vendor on the Website should the Company not be in a position to support such special offer or promotion.
- The Vendor shall not be required to make any offer as made to its purchasers by way of private promotion via email, whatsapp or sms to the Company on condition that the Company is able and wishes to support such private promotion in which event the Vendor will make such private promotion available to the Company’s Purchasers.
DISPATCHING OF PRODUCTS
- The Vendor shall solely be responsible for ensuring that the Product is delivered to the Purchaser within 3 to 5 days of the order being received and payment having been processed through the Company (whether or not same has as yet been transferred to the Vendor in terms of clause 9 above).
- The Company may, at its own discretion, and at the request of the Vendor assist in ensuring that the Product is delivered within the 3 to 5 day timeframe. However there exists no obligation on the Company to ensure such assistance.
- Should specific Products have a longer delivery lead time than 3 to 5 days, this must be stipulated clearly on the Website.
- The Vendor undertakes to ensure that the correct Product is couriered to the Purchaser.
- The Vendor further undertakes that the Product shall be packaged correctly in order to minimise any damages or breakages.
RETURNS AND REFUNDS
- In the event of the Purchaser requiring a return and/or refund in respect of the Product, the Purchaser is to be referred to the return and/or refund policy which may be found in the general Website Terms and Conditions at this link: 3jmedical.africa/generalterms.
- Should a return result from the negligence of the Vendor, the vendor will be charged a 10% return handling fee.
AFTER SALES / PURCHASER SERVICE
The Company shall, on behalf of the Vendor, handle any and all after sales and purchaser service queries raised by the Purchaser, which shall only be brought to the Vendor’s attention in the event of the Company being unable to resolve same to the satisfaction of the Purchaser without the Vendor’s input and/or assistance.
UNDERTAKINGS BY THE VENDOR
The Vendor warrants that it shall at all times ensure that:
- the information as contained on the Website insofar as it pertains to the Vendor or the Products, is current and correct;
- a Product shall not be delivered out of time as a result of the Vendor not having the Product in stock, or being able to manufacture same within the time period stipulated;
- the correct Product is dispatched to the Purchaser; and
- Products are not damaged as a result of incorrect packaging.
Failure by a Vendor to uphold these undertakings will be deemed to be a breach of this Agreement, and may, at the Company’s discretion, result in the termination of same.
PROTECTION OF DATA
The Company makes all reasonable efforts to ensure security on its systems. However, it cannot guarantee that Personal Information, alternatively any data uploaded onto the Website may not be accessed, disclosed, altered or destroyed by breach of the Company’s administrative, managerial and technical safeguards. Therefore, the Company urges the Vendor to take adequate precautions to protect its personal data and login details including never sharing its password with anyone.
- The contents of the Website are the property of the Company. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website is that of the Company unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
- Except as stated in this Agreement, none of the contents of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without the prior written permission of the Company or the copyright owner, and further, should such consent be provided, the Company reserves its right to withdraw such consent at any stage, in its sole and absolute discretion.
- The Vendor is expressly prohibited to include any hyperlink to any other Website in any information uploaded to the Website by it.
- The Vendor, in providing a description of the Product, is prohibited from using keywords or repetitive words or words which have no bearing on the Product appearing on the Website.
- The Company does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and may at its sole discretion, remove any infringing content should same infringe on another's intellectual property rights or its own.
- The Vendor is in terms of this Agreement, granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page or its own store front on the Website, on condition that the link does not portray the Company or its affiliates in a false, misleading, derogatory, or otherwise offensive manner. A Vendor may not use the Company’s logo or other proprietary graphic or trademark as part of the link without the express permission of the Company, its affiliates or content suppliers.
- All trademarks and copyrights, together with any other intellectual property rights, in and to any of the content of the Website, where not evidently that of the Vendor or a third party, are the exclusive property of the Company.
The Vendor warrants that:
- all rights in and to any information (“Posted Content”) uploaded by it (including, without limitation, all rights to the reproduction and display of such Posted Content) are obtained by the Vendor or, alternatively, all necessary rights in and to such Posted Content providing the rights in and to such Posted Content have been obtained;
- all necessary license fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of the Posted Content have been paid prior to it being uploaded to the Website;
- Posted Content does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
- it is entitled, in the event of the Posted Content being the property of a third party, to receive any payment generated from sales as a result of the uploading of the Posted Content;
- the Posted Content does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than a Vendor’s own);
- the Posted Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files; and
- the Posted Content does not contain any information that may be considered confidential, proprietary, or personal insofar as it relates to a third party.
- By submitting the Posted Content, the Vendor grants the Company an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty free license (sub-licensable through multiple tiers) to publish feedback, comments and ratings in respect of the Products sold through the Website and use such feedback in blogs, features, social media posts, highlights as well as for advertising and promotional purposes.
- The Company shall not be held liable or responsible for any loss, theft, damage or misuse of the Vendor’s copyright material in respect of the Posted Content.
LIABILITIES AND INDEMNITIES
Without limiting the generality of this Agreement and the general Website Terms and Conditions, the Vendor hereby indemnifies the Company and shall keep indemnified the Company in respect of any cost or expense incurred by the Company by virtue of a decision made by it to comply on a Vendor’s behalf, with or without a Vendor’s permission, arising out of any regulation or law including but not limited to:
- any claim by a Purchaser in respect of a Product;
- the Company making a payment to a Purchaser in circumstances where the Vendor has failed to comply with this Agreement; and
- any amendments or deletions which the Company may make in respect of any text or graphics uploaded onto the Website by the Vendor;
- any payments made by the Company on an ex gratia basis arising from an agreement between the Company and the Purchaser.
NON-EXCLUSIVITY OF COMPANY SERVICES
- It is recorded that the Company shall provide the Company Services to more than one Vendor, and as such, no single Vendor shall have any right or entitlement to any exclusivity to the Company Services or the Products sold by it.
- The Company has no control of the prices of each Product, and cannot guarantee that one Vendor will not advertise the same Product at a higher or lower price as that of another.
If any Party commits a breach of this agreement and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel this Agreement and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
NOTICES AND DOMICILIUM
The Company and the Vendor choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of this agreement, the addresses as stipulated in items 1 and 2 of the signed agreeement.
Any notice given in terms of this Agreement shall be in writing and shall be deemed to have been dulr received:
- If delivered via email, on the date of dispatch;
- if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery; and
- if delivered by an internationally recognised courier service, be deemed to have been received by the addressee 3 (three) Business Days after despatch.
Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by a Party from another shall be adequate written notice or communication to such Party.
No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.
This Agreement, in conjunction with the general Website Terms and Conditions viewable at this link 3jmedical.africa/generalterms constitute the whole Agreement between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein, are binding on the Parties.
- If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement due to third party strikes or lock-outs, server downtime, black outs, riots, wars, sabotage, governmental laws, regulations or rulings, acts of God, fire, flood and other acts beyond the control of such Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party. Any Party invoking force majeure shall upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party.
- If the event continues for a period of 30 (thirty) days, either Party may then give notice of termination of the Agreement, which termination shall take effect 7 (seven) business days after the giving of the notice
This Agreement may be executed in any number of counterparts and by the Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.