These Use Terms are a contract between you and us and govern your WooThemes Service use. Agreeing to these Use Terms is a condition of any WooThemes Service use. You signify your agreement to these Use Terms and will be legally bound by them from the date on which you –
- click to accept or agree to these Use Terms where WooThemes presents an option to do so, either on the Website or otherwise; or
- use the Services in any way, in which case you understand and agree that your WooThemes Service use will signify your acceptance of these Use Terms from the moment you first begin to use the WooThemes Service.
This is version 2.0 of these Use Terms and their effective date is 2013–12–01.
A “transaction” (as defined in the CPA) between you and us may or may not fall under the provisions of the CPA depending upon whether certain of our Customer’s threshold values are below a certain value at the time the transaction is entered into.
The threshold values relate to a Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
Our duties towards you may vary depending upon whether the transaction in question is subject to the CPA, and we will rely on information you give us in order to determine whether the CPA applies. Consequently:
- You warrant that any statement you make to us regarding relevant threshold values is accurate.
- We may require you to provide us with the supporting financial statements as proof of any threshold values which you may represent as being below the relevant values, or in the event it appears that the CPA applies to our contract with you in the form of these Use Terms.
- If you misrepresent any threshold values and we are subsequently penalised as a result of our reliance on your misrepresentations you agree that we may hold you liable for any losses we sustain as a result.
You agree that we may, in our sole discretion, amend these Use Terms at any time, in any way and from time to time. We will publish details of our proposed amendments to these Use Terms in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Use Terms and the date on which these proposed amendments will become effective.
You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Use Terms regularly in the event that we do publish a notice of proposed changes. Your continued use of the WooThemes Service (except where your continued use of WooThemes Service is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Use Terms.
Interpreting these Use Terms
These Use Terms contains a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary, below, contains many of these words and phrases (others are set out in these Use Terms’ body and are designated by terms in quotation marks).
We also apply certain rules when interpreting these Use Terms and the Interpretation Guide, which sets out these rules, is below.
These Use Terms shall continue to bind you for so long as you make use of WooThemes Service.
Effects of Termination
In the event these Use Terms are terminated for any reason whatsoever, the following clauses shall survive termination and continue to bind you:
The WooThemes Service
Our Website details the WooThemes Service which, broadly, comprises the following components –
- the Support Service;
- Content; and
- related software products.
We grant you a limited and non-exclusive right to use the WooThemes Service (subject to any other applicable licenses such as the GPL) solely for the purposes which the WooThemes Service is intended for and as permitted by the licenses applicable to the WooThemes Service components. This right is not transferable to any other person unless we agree.
You agree that, except where the nature of the WooThemes Service requires otherwise, each component of the WooThemes Service constitutes a separate and distinct service, and we are not necessarily obliged to render two or more components of the WooThemes Service as a single, indivisible service.
Our products are licensed under the GPL (click here to find out more about the GPL).
When you purchase paid Products, you will receive access to a Support Service for those Products for a period of one year. You may renew the Support Service for your paid Products on the anniversary of your paid Products’ purchase. For more information about the Support Service, read below.
Some of our Products have been contributed by 3rd Party service providers. These 3rd Party service providers may change from time to time and the Products they contribute may not always be available through the WooThemes Service.
As we pointed out above, when you purchase paid Products, you will receive access to a Support Service developed to support the specific paid Products you have purchased. The Website contains more information about the specific Support Service you receive with each paid Product purchase. The corresponding Support Service is valid for 1 year from the date of your purchase, regardless of which paid Product you purchase, after which time the Support Service will come to an end.
You may renew the Support Service for each paid Product at 50% of the price you paid for the paid Product if you renew the relevant Support Service within 3 calendar months of the date on which the relevant Support Service terminates. You may renew Support Services on our Website.
Support Services are only available to you and you may not transfer them to any other person without our express, written consent. We may refuse to give consent for this at our discretion.
WooThemes grants users a Content License in respect of WooThemes’ Intellectual Property which forms part of the Services.
To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed.
Users are further required, as a condition of this Content License, to clearly and expressly attribute WooThemes as the Content’s source.
Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event WooThemes revokes the Content License, users may no longer use the Content.
Changes to the Services
We may change any aspect of the WooThemes Service on written notice to you. These changes may include discontinuing aspects of the WooThemes Service or the WooThemes Service in its entirety. In the event we do make any changes to any aspect of the WooThemes Service, we will publish updated WooThemes Service information which shall detail the –
- proposed changes to the WooThemes Service; and
- the date on which these proposed changes shall be implemented.
Changes to the WooThemes Service may, at our sole discretion, require consequential changes to fees payable for and delivery timeframes applicable to the aspects of the WooThemes Service affected by the changes. We will similarly notify you of any such changes to fees payable or delivery timeframes.
Where fees are payable for any component of the WooThemes Service, these fees are payable in advance and we may, in our sole discretion, suspend any aspect of the WooThemes Service which you have not paid for.
You may claim a refund of any fees you have paid for any WooThemes Service component within 1 month of your purchase. Your use of the WooThemes Service you are claiming a refund for may be terminated when you are refunded.
Without detracting from any of our rights, you agree that we are entitled to discontinue any aspect of the WooThemes Service you may be using if you fail to pay any amount when it falls due or if you breach these Use Terms. In the event we incur expenses to recover amounts you owe us, you further agree that we may recover our legal costs on the attorney and own client scale, collection charges and tracing fees, and any applicable VAT.
You may be required to register on the Website in order to make use of the WooThemes Service. Once registered, you will be able to log into your account using your chosen usernames and passwords.
You may not impersonate another person and you are required to associate your real identity with your account.
We collect your personal information through the Website’s registration form in order to successfully complete the registration process. We process personal information in terms of the Data Protection Policy.
You warrant that your personal information which you submit to us is accurate, current and complete. You also confirm that you have read and understand the Data Protection Policy.
You agree that we may deny you use of the WooThemes Service should you breach your warranty or subsequently be found to have breached this warranty. We may take steps to verify your personal information once you have completed the requisite registration process for the WooThemes Service and these steps may include, and are not limited to, email verification. You agree to submit to this verification process and irrevocably consent to us gaining access to relevant information held by 3rd Parties which may be reasonably required to complete the verification process. You acknowledge and agree that your access to the WooThemes Service may be limited until this verification process has been successfully completed.
Should you not agree to our verification process or withhold your consent to us processing your personal information, your WooThemes Service use may be suspended or terminated.
Without limiting our liability limitation provisions below, you waive any claims you may have against us or our Associates in the event we deny you use of the WooThemes Service where you have breached these Use Terms or otherwise failed to fulfil your obligations to WooThemes.
Passwords and Account Security
You agree that the security of their WooThemes Service user account is solely your responsibility. You further agree that –
- you are responsible for maintaining and promptly updating personal information and any other information you submit to us, keeping it accurate, current and complete;
- if you believe your WooThemes Service user account’s security or integrity has been compromised in any way, you agree to notify us immediately and that you will be liable for any Losses you suffer should you fail to notify us timeously;
- we reserve the right to suspend your WooThemes Service pending an investigation and resolution if any security violations are believed to have occurred in association with your WooThemes Services user account.
For information about our data protection practices, please read the Data Protection Policy. This policy explains how and under what conditions we will process your personal information, and protect your privacy, when you use the WooThemes Service.
You agree that we may process your personal information in accordance with the Data Protection Policy.
Save as expressly set out in these Use Terms, we do not make any representation or give any warranties whatsoever in respect of the WooThemes Service.
If you are not, factually or legally, authorised to bind another person as our Customer to these Use Terms, you agree that you will be personally liable to WooThemes for any amounts due to us in terms of these Use Terms or otherwise as a consequence of using the WooThemes Service in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal WooThemes Service use.
Disclaimers and Limitation of Liability
To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the WooThemes Service and you use the WooThemes Service at your own risk.
You agree that neither we or our Associates shall be liable for any Losses which you may sustain however arising and whatever the cause, in particular pursuant to your or any 3rd Party’s use of, access to and/or interference with the WooThemes Service.
You also agree that our liability to you pursuant to these Use Terms shall furthermore be limited to the total amount of the fees you paid for your WooThemes Service use.
You and any 3rd Parties using the WooThemes Service or Website indemnify us and our Associates from any Losses, which may arise as a result of your or the 3rd Party’s unlawful conduct, wilful misconduct and/or gross negligence.
Maintenance and Repair
You acknowledge that from time to time the WooThemes Service may be suspended, either in part or as a whole, for maintenance, repair and improvements. We agree, wherever reasonably possible, to give twenty-four (24) hours notice of suspension of the WooThemes Service affected by the proposed suspension. We deal with this in more detail in our Support Policy.
Save as set out elsewhere in these Use Terms or the Support Policy, we shall not be liable for any Losses which may be sustained as a result of the suspension of the WooThemes Service save as provided for in the Support Policy, where applicable.
If any person is of the view that his, her or its rights have been infringed through unlawful WooThemes Service use by any person, that person may address a complaint to WooThemes which satisfies the following requirements and/or sets out the following information:
- the full names and address of the complainant;
- the written or electronic signature of the complainant;
- identification of the right that has allegedly been infringed;
- identification of the material or activity that is claimed to be the subject of unlawful activity;
- the remedial action required to be taken by WooThemes in respect of the complaint;
- telephonic and electronic contact details, if any, of the complainant;
- a statement that the complainant is acting in good faith;
- a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.
Notifications must be addressed to:
We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action, where necessary. Such action may include, but is not limited to, removing offending Content and/or taking appropriate steps against offending users or Customers, where appropriate. We may not be able to, or it may not be appropriate for us to, respond to or act on every complaint.
Subject to any other provision of these Use Terms providing for the remedy of any breach of any provision of these Use Terms, should either Party (“the Offending Party”) commit a breach of any provision of these Use Terms and fail to remedy such breach within 10 days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
- cancel these Use Terms, provided the breach in question is a material breach going to the root of these Use Terms; or
- claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
- in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Use Terms in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Use Terms shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Governing Law and Jurisdiction
These Use Terms shall be governed in all respects by and shall be interpreted in accordance with South African Law and you consent and submit to the jurisdiction of the Western Cape High Court, Cape Town.
You consent to the jurisdiction of the Regional Court and the Magistrates Court in respect of any claim arising out of or pertaining to these Use Terms or the WooThemes Service even though any claim you may have against us exceeds the monetary jurisdiction of the Regional Court or the Magistrates Court, as the case may be.
You acknowledge that, from time to time, the WooThemes Service may be suspended due to causes beyond our control which we refer to as Interruption Events.
You agree that we will be relieved of our obligations in terms of these Use Terms during the period that the Interruption Event and its consequences continue, only to the extent we are reasonably prevented from fulfilling our obligations, and we shall not be liable for any Losses which you may suffer as a result.
We will make reasonable efforts to notify you of an Interruption Event in writing as soon as we become reasonably aware of the Interruption Event.
In the event that an Interruption Event exceeds 2 calendar months and in the event that neither we or our nominee are able to provide alternative services and/or facilities, either you or we may terminate these Use Terms and shall only remain liable for performance under these Use Terms which fell due immediately prior to the Interruption Event.
By users or you
Users or, where appropriate, you shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Use Terms except with our prior written consent. We will not unreasonably withhold our consent.
We are entitled to cede, delegate, assign or otherwise transfer all or any of our rights, interests or obligations under and/or in terms of these Use Terms subject to us giving you reasonable written notice to that effect.
If any court which has jurisdiction finds any clause or term of these Use Terms to be unenforceable, then the Parties agree that the remaining terms and provisions of these Use Terms shall be deemed to be severable from the unenforceable provisions and shall continue in full force and effect unless such unenforceability goes to the root of these Use Terms, in which case these Use Terms shall terminate.
Domicilium and Notices
Any Party shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a post box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
A notice sent by one Party to another Party shall be deemed to be received:
- on the same day, if delivered by hand;
- on the same day, if transmitted electronically with receipt received confirming completion of transmission;
- on the same day of transmission if sent by telefax with receipt received confirming completion of transmission, provided that the original of the notice shall, after such transmission, be sent by prepaid courier services to the Party to whom such notice shall have been given;
on the third day after despatch, if sent by prepaid courier.
Notwithstanding anything to the contrary contained in this Domicilium and Notices clause a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
You choose your physical address; postal address; facsimile number and email address which you supply to us when registering to use the WooThemes Service as its domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Use Terms.
WooThemes chooses the addresses and other contact details specified in our ECTA Disclosures section, below, for all communication purposes under these Terms, whether in respect of court process, notices or other documents or communications of whatsoever nature.
Access to the Content on or through the Services and the Website itself are classified as “electronic transactions” in terms of the ECTA and therefore you have the rights detailed in Chapter VII of the ECTA and we have the duty to disclose the following information:
Our full name and legal status: Bubblestorm Management (Proprietary) Limited trading as WooThemes
Street address: Unit 1, Canal Edge 1, Entrance B, Tyger Waterfront, Carl Cronje Drive, Belville, 7530, Cape Town
Postal address: P O Box 3367, Durbanville, 7551
Physical address for receipt of legal service: Unit 1, Canal Edge 1, Entrance B, Tyger Waterfront, Carl Cronje Drive, Belville, 7530, Cape Town
Main business: The sale of digital products and services
Website address: http://woothemes.com
Official email address: firstname.lastname@example.org
Membership of self-regulatory or accreditation bodies: None
Codes of conduct to which we subscribe: Not applicable
Manual in terms of the Promotion of Access to Information Act 2 of 2000: We have not published a manual
Management: Mark Geoffrey Forrester and Magnus Oliver Jepson
Costs associated with the access to and use of the Website: Costs are detailed on the Website.
Cooling off period: Not applicable
Complaints process: Not applicable
These Use Terms, as read with the documents referenced in these Use Terms, constitute the sole record of the agreement between the Parties in regard to its subject matter.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Use Terms.
No addition to, variation or consensual cancellation of these Use Terms, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
No data message (as defined in ECTA), including an e-mail, SMS and recorded voice message, which you send to us shall amend these Use Terms or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Use Terms or the Parties’ rights and duties in any material respect.
No indulgence which any of the Parties (“the Grantor”) may grant to any other (“the Grantee(s)”) shall constitute a waiver of any of the Grantor’s rights, who shall not be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to take all reasonable steps to implement and comply with these Use Terms.
In these Use Terms, headings are for convenience and are not intended to be used to interpret the Use Terms.
If the Use Terms refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Use Terms will also be applicable to and binding on that Party’s liquidator or trustee, as the case may be.
Unless these Use Terms indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Use Terms, shall not apply.
Where in these Use Terms provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Use Terms or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
Where these Use Terms specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
All annexures, addenda and amendments to these Use Terms form an integral part of these Use Terms and, therefore, our contract with you.
The words and phrases in the Glossary and, where appropriate, elsewhere in these Use Terms bear the meanings assigned to them and related expressions bear corresponding meanings.
“3rd Party” means a person other than WooThemes and a Customer;
“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
“the Constitution” means Constitution of the Republic of South Africa, Act 108 of 1996;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what a Customer may have access to as part of, or through the Customer’s Service use;
“Content License” means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Use Terms and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent;
“Customer” means the person contracting with us to use the WooThemes Service subject to these Use Terms and is either –
- you, personally, if you are contracting with us in your personal capacity; or
- a legal entity such as a company or close corporation you represent, in which case you –
- represent to us that you are authorised by that legal entity to enter into this contract on that legal entity’s behalf; and
- agree that when we refer to “you” in these Use Terms, we are referring to the legal entity you represent with you as its authorised representative;
“CPA” means the Consumer Protection Act No. 68 of 2008, as amended from time to time;
“Data Protection Policy” means our data protection policy framework located at http://www.woothemes.com/data-protection-policy;
“ECTA” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;
“Intellectual Property Rights” means legal or moral rights in Intellectual Property;
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Use Terms by reason of an Interruption Event;
“Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
“Parties” means WooThemes and the Customer;
“personal information” means the personal information as defined in the Promotion of Access to Information Act, 2 of 2000;
“Products” means the WooThemes plugins, themes and extensions which are made available through the Website and which are described in the Website;
“Republic of South Africa” means the Republic of South Africa as described in the Constitution;
“Use Terms” means these terms and conditions, as amended from time to time;
“Support Policy” means the terms and conditions establishing our minimum support undertakings in respect of the Services and located at http://www.woothemes.com/support-policy/;
“Support Service” means our Product support and update service described on the Website;
“South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to the Constitution, the ECT, CPA or any other legislative enactment or regulation in force from time to time applicable codes of conduct, as may be promulgated or amended from time to time;
“use” bears its ordinary meaning and when used in the context of –
- the Website, means to visit or load the Website in a web browser, mobile phone or similar software application or device or otherwise engage with the Website;
- Products or Content, means to copy, download, distribute, display, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate the Products;
“user” means a person who is not a Customer and who uses the WooThemes Service or the Website;
“VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991;
“Website” means the WooThemes website located at http://woothemes.com or such other websites as may be associated with and controlled by WooThemes from time to time;
“WooThemes”, “us”, “we” and “our” means or are references to Bubblestorm Management (Proprietary) Limited trading as WooThemes, a company duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 2010/006103/07;
“WooThemes Service” means the Content, Products and Support Service, either collectively or in any combination.