Last updated Mar 18, 2020
Thanks for choosing Charted Global (Pty) Ltd ("Charted", "we", "us", "our"). We, including our subsidiaries, affiliates, divisions, contractors and all data sources and suppliers, (collectively "Charted", "we", "us" or "our") welcomes you to https://charted.co.za (the "Website").
These terms and conditions of service (collectively, with Charted's Privacy Policy, located at https://charted.co.za/legal/privacy-policy, the "Terms of Service" or "Agreement") govern your use of the Website and the services, features, content or applications operated by Charted (together with the Website, the "Services"), and provided to the Client (the "Client", "user", "sub-user", "you" or "your"). Our Data Processing Agreement under the European General Data Protection Regulation (GDPR) forms part of these Terms of Service.
Please read these Terms of Service carefully before using the Services. These Terms of Service apply to all users of the Services. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms of Service and you agree to be bound by these Terms of Service on behalf of such organization. Agreeing to use the Services by submission of any of our contact forms constitutes your acceptance and agreement to be bound by these Terms of Service, and all other operating rules, policies and procedures that may be published from time to time on the Website by us, each of which is incorporated by reference and each of which may be modified from time to time without notice to you. You acknowledge receipt of our Privacy Policy. If you ordered the Services on the Website, use the Website, or otherwise engage in any electronic transaction with respect to the Services, then you agree to receive any updates to our Privacy Policy by accessing the Website. By using our Website or purchasing our products or services, you agree that we may use and share your personal information in accordance with the terms of our Privacy Policy.
These Terms of Service provide that all disputes between you and Charted will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 15 below for the details regarding your agreement to arbitrate any disputes with Charted. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
Occasionally we may make changes to the Terms of Service Agreement for valid reasons, such as improving the existing functions or features or adding new functions or features to the Service, implementing advancements in science and technology, and reasonable technical adjustments to the Service, ensuring the operability or the security of the Service, and for legal or regulatory reasons. When we make material changes to the Agreements, we’ll provide you with notice as appropriate under the circumstances, e.g., by displaying a prominent notice or seeking your agreement within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Terms of Service Agreement, you may terminate your account by contacting us.
SOME JURISDICTIONS HAVE CONSUMER PROTECTION AND OTHER LEGISLATION WHICH MAY APPLY TO THE SERVICES AND WHICH DO NOT ALLOW CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. TO THE EXTENT THAT A LIMITATION, EXCLUSION, RESTRICTION OR OTHER PROVISION SET OUT BELOW IS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SUCH LIMITATION, EXCLUSION, RESTRICTION OR PROVISION MAY NOT APPLY TO YOU.
1.1 In order to use the Charted Service and access any Content, you need to (1) meet the age requirements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) reside in a country where the Service is available. You also promise that any registration/contact information that you submit to Charted is true, accurate, and complete, and you agree to keep it that way at all times. The Services are not targeted towards, nor intended for use by, anyone under the age of 13. By using the Services, you represent and warrant that you are 13 years of age or older. If you are under the age of 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
1.2 You are solely responsible for the activity that occurs on your Account and during your use of the Services, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password(s) secure. You may never use another person's user account or registration/contact information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You agree to provide accurate information in your registration/contact and not to share your password with third parties. You agree not to impersonate another person or to select or use a user name or password of another person. You agree to notify Charted promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these Terms of Service and shall constitute grounds for immediate termination of your account and your right to use the Website. CHARTED WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO KEEP YOUR ACCOUNT SECURE.
2.1 For purposes of these Terms of Service, the term "Content" includes, without limitation, information, data, text, written posts, reviews, and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, "Content" also includes all User Content (as defined below).
2.2 All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
2.3 The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
2.4 Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
2.5 By submitting any User Content to the Website, excluding privately transmitted User Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such User Content in connection with the Website, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Website and/or the Services a non-exclusive, perpetual license to access any of your User Content that is available to such user on the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. By submitting any User Content to the Services other than on the Website, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, and perform such User Content solely for the purpose of providing the Services. For clarity, the foregoing licenses granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
2.6 Some Content will be marked on the Service as "Creative Commons Content". Creative Commons Content will be identified with a Creative Commons icon. We hereby grant each user of the Services a license to Creative Commons Content under the Creative Commons CC BY-NC-SA 4.0 US license, available at the "Creative Commons License". You agree to abide by the terms of the Creative Commons License when using Creative Commons Content.
3.1 As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your access code or Account. This access code comes in various forms such as your sub-domain name, i.e. "company.charted.co.za" where company represents your sub-domain name, etc.
3.2 You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
3.3 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
3.4 We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
3.5 You may not use the Services to obtain information about or make decisions about anyone but yourself. You are solely responsible for any reliance by you on the Services or other use you make of the Services. Comments, suggestions or materials sent or transmitted to Charted (collectively "Feedback"), shall be deemed to be non-confidential. Subject to the conditions described in Charted's Privacy Policy, Charted shall have no obligation of any kind with respect to such Feedback and shall be free to use and distribute the Feedback to others without limitation, including, but not limited to developing and marketing products incorporating such Feedback. Charted reserves the right to publish or use any responses, questions or comments emailed to Charted for promotional or other purposes without any further permission, notice or payment of any kind to the sender. All such submissions will be the property of Charted.
3.6 The enumeration of violations in this Section 3 of these Terms of Service is not meant to be exclusive, and Charted provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Services, Clients, and third parties from acts that would be inimical to the purposes of this Section 3 of these Terms of Service.
3.7 Clients may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in Charted's sole and absolute discretion.
3.8 Clients may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 ("DMCA") (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Charted will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Client of Charted is violating its intellectual property rights, it should notify us by email at abuse@charted.co.za. A notification should include information reasonably sufficient to permit Charted to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring. Please see our DMCA Copyright Policy.
3.9 Clients shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, the Client shall not utilize the Services to export or re-export data or software without all required Republic of South Africa and foreign government licenses. The Client assumes full legal responsibility for any access and use of the Services from outside the Republic of South Africa, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be the Client's responsibility to obtain the same, at the Client's sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Charted, the Client shall defend, indemnify and hold Charted harmless from all claims and damages arising therefrom.
3.10 Clients are responsible for the acts of others utilizing their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Client's access codes. Any activity that a Client is prohibited from performing by these Terms of Services is equally prohibited to anyone using the access to the Services of the Client.
3.11 Clients shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information.
3.12 Clients shall notify all persons who receive access to the Services of the provisions of these Terms of Service, and shall inform them that the terms of these Terms of Service are binding upon them.
3.13 Client shall notify Charted if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Charted to cure the security breach.
4.1 The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. It is your responsibility to protect your system from such items as viruses, worms, Trojan horses and other items of a destructive nature.
5.1 Please note that any payment terms presented to you in the process of using or registering for paid Services are deemed part of this Agreement.
5.2 YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, BANK ACCOUNT INFORMATION), AND YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE BY CONTACTING US AT accounts@charted.co.za. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
5.3 The Client is responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to Client's purchase of the Services, including but not limited to national, state or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, "Taxes"). Charted's standard pricing policies do not include and are not discounted or enhanced for any such Taxes. If Charted becomes obligated to collect or pay Taxes in connection with the Client's purchase of the Services, those Taxes will be invoiced to that Client as part of a billing process. In certain states, countries and territories, Charted may determine if the Client's purchase of Services is subject to certain Taxes, and if so, may collect such Taxes and remit them to the appropriate taxing authority. If the Client believes that a given tax does not apply or that some amount must be withheld from payments to Charted, the Client must promptly provide Charted with a tax certificate, withholding receipt, tax identifier (e.g., VAT Number) or other adequate proof, provided such information is valid and sufficiently authorized by all appropriate taxing authorities. The Client must also provide Charted with any tax identification information that is necessary for Charted to comply with Charted's tax obligations, as determined by Charted from time to time. The Client will be solely responsible for any misrepresentations made or non-compliance caused by the Client regarding Taxes, whether with respect to Charted or other parties, including any penalties, fines, audits, interest, back-payments or further taxes associated with such misrepresentations or non-compliance.
5.4 Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, Charted may suspend service to such account and bring legal action to collect the full amount due, including any attorneys' fees and costs.
5.5 If a Client is past due on their balance, Charted may send up to three (3) email notifications within a fifteen (15) day period before suspending the Client's account. Services will be suspended during this period. Charted reserves the right to delete the Client's account after the final termination notice.
6.1 Unless where specified in a binding agreement, still subject to this Terms of Service Agreement and/or any other Agreements, we have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
6.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE US FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE SERVICES. WE MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
6.3 THE SERVICES, INCLUDING WITHOUT LIMITATION ANY INFORMATION DELIVERED AS PART OF THE SERVICES, AND CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE WITH DATA, AVAILABILITY, ACCURACY, THAT YOU WILL HAVE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OUR WEBSITE OR THAT THE SERVICES ARE ERROR FREE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. THE SERVICES CONTAIN INFORMATION PROVIDED BY ONE OR MORE THIRD PARTY DATA PROVIDERS. CHARTED DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE INFORMATION PROVIDED BY ANY SUCH THIRD PARTY PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT NEITHER CHARTED NOR ANY SUCH THIRD PARTY PROVIDER HAS ANY OBLIGATION TO CORRECT INFORMATION ABOUT YOU EXCEPT AS REQUIRED BY APPLICABLE LAW. INFORMATION YOU REQUEST MAY NOT BE AVAILABLE OR MAY NOT BE PROVIDED, AND CHARTED HAS NO LIABILITY FOR SUCH FAILURE. IN NO EVENT WILL CHARTED WARRANT OR GUARANTEE THE CORRECTNESS, COMPREHENSIVENESS, COMPLETENESS, ACCURACY, TIMELINESS OF ANY INFORMATION, PRODUCTS, OR SERVICES ON THIS WEBSITE. THE INFORMATION, PRODUCTS, AND SERVICES AVAILABLE ON THE WEBSITE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THEREFORE, YOU AGREE THAT YOUR ACCESS TO AND USE OF OUR WEBSITE, PRODUCTS, SERVICES AND CONTENT ARE AT YOUR OWN RISK.
7.1 IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF CHARTED HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. THE CLIENT ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CHARTED WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. THE CLIENT HEREBY WAIVES ANY AND ALL CLAIMS AGAINST CHARTED ARISING OUT OF THE CLIENT'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF CHARTED'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
IN ADDITION, YOU AGREE THAT CHARTED IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT CHARTED WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL CHARTED, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF CHARTED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
SOME JURISDICTIONS LIMIT OR PROHIBIT THE FOREGOING LIMITATIONS, AND IN SUCH JURISDICTIONS THE FOREGOING LIMITATIONS SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8.1 The Client shall keep confidential any confidential information to which it is given access, and shall cooperate with Charted's efforts to maintain the confidentiality thereof. The Client shall not publish to third parties or distribute information or documentation that Charted provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
9.1 The Client is solely responsible for the preservation of the Client's data which the Client saves onto its virtual server (the "Data"). EVEN WITH RESPECT TO DATA AS TO WHICH THE CLIENT CONTRACTS FOR BACKUP SERVICES PROVIDED BY CHARTED, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CHARTED SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. CHARTED SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF THE CLIENT'S FAILURE TO BACKUP ITS DATA OR FOR ANY OTHER REASON.
10.1 Each Client is permitted to state publicly that such Client is a Client of the Services. Subject to Charted's Privacy Policy, each Client agrees that Charted may include such Client's name and trademarks in a list of Charted Clients, online or in promotional materials. Each Client also agrees that Charted may verbally reference such Client as a Client of the Services. The Client may opt out of the provisions in this Section 10.1 by e-mailing a request to support@charted.co.za.
11.1 YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO, THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR USER CONTENT, VIOLATION OF THESE TERMS OF SERVICE OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
12.1 Charted reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms of Service or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Account. Charted may provide prior notice of the intent to terminate Services to you if such notice will not, in Charted's discretion, run counter to the intents and purposes of these Terms of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Charted before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Charted's costs for collection (including attorneys' fees) of any such charges or other liabilities. Upon termination, any and all rights granted to the Client by this Agreement will immediately be terminated, and the Client shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13.1 Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the Republic of South Africa, without regard to principles of conflict of laws. Subject to Section 15 below, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of The Constitutional Court of the Republic of South Africa. The Client consents to service of process via email at the email address(es) provided by the Client, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
14.1 Mindful of the high cost of litigation, you and Charted agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Charted ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to Charted at: 71 Kavalier Street, Hunters Creek, Kuils River, 7580, South Africa or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and Charted agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.
15.1 In the interest of resolving disputes between you and Charted in the most expedient and cost effective manner, you and Charted agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CHARTED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Any arbitration between you and Charted will be settled under the Republic of South Africa ARBITRATION ACT 42 OF 1965, and/or the Republic of South Africa INTERNATIONAL ARBITRATION ACT 15 OF 2017, and governed by the ICSID Convention; the Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings; the Rules of Procedure for Arbitration Proceedings (Arbitration Rules); and the Administrative and Financial Regulations (collectively, "ICSID Convention"), as modified by these Terms, and will be administered by the ICSID Convention. Instructions on filing a Request for Arbitration can be found at https://icsid.worldbank.org/en/Pages/process/How-to-File-a-Request-for-Arbitration-Convention.aspx, or by contacting Charted.
15.4 A party who intends to seek arbitration must first send a written notice of the dispute to the other party by Registered South Africa Mail (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). Charted's address for Notice is: 71 Kavalier Street, Hunters Creek, Kuils River, 7580, South Africa. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Charted may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Charted must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Charted will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Charted in settlement of the dispute prior to the arbitrator's award; or (iii) ZAR10,000.
15.5 If you commence arbitration in accordance with these Terms, Charted will reimburse you for your payment of the filing fee, unless your claim is for more than ZAR10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Cape Town, South Africa, but if the claim is for ZAR10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Charted for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
15.6 YOU AND CHARTED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Charted agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
15.7 If Charted makes any future change to this arbitration provision, other than a change to Charted's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Charted's address for Notice, in which case your account with Charted will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.8 If Section 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to these Terms. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.1 Neither you nor Charted shall be liable for nonperformance of the terms herein to the extent that either you or Charted are prevented from performing as a result of any act or event which occurs and is beyond your or Charted's reasonable control, including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, or any unforeseen change in circumstances, or any other causes beyond either party's reasonable control. The party experiencing the force majeure shall provide the other party with prompt written notice thereof and shall use reasonable efforts to remedy effects of such force majeure.
16.2 You are granted a limited, non-exclusive right to create a hypertext link to the Website found at https://charted.co.za; provided such link does not portray Charted and/or its affiliates or any of their respective products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any Charted trademark, logo or other proprietary information, including the images found at the Website, the content of any text or the layout/design of any page or form contained on a page without Charted's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Charted or any third party.
16.3 The Website contains many of the valuable trademarks, service marks, names, titles, logos, images, designs, copyrights and other proprietary materials owned, registered and used by Charted, but not limited to, the mark " Charted". Charted and the Charted product names referenced in the Website are either trademarks, service marks or registered trademarks of Charted. Any unauthorized use of same is strictly prohibited and all rights in same are reserved by Charted. No use of any Charted trademark may be made by any third party without express written consent of Charted. Other products and company names mentioned in the Website may be the trademarks of their respective owners.
16.4 Elements of Charted's Website are protected by trade dress, trademark, unfair competition, and other laws and may not, unless otherwise permitted hereunder, be copied in whole or in part. No logo, graphic, or image from the Website may be copied or retransmitted without Charted's express written permission. The images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website are the property of Charted or its licensors and are protected by copyright, trademark and other laws. In addition to our rights in individual elements of the Website, Charted owns copyright or patent rights in the selection, coordination, arrangement and enhancement of any images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website. You may copy such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website for your personal or educational use only, provided that each copy includes any copyright, trademark or service mark notice or attribution as they appear on the pages copied. Except as provided in the preceding sentence, none of such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website may be copied, displayed, distributed, downloaded, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work or otherwise used for public or commercial purposes without the express written permission of Charted.
16.5 This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. All references to "laws," "rules," or "regulations" references any and all applicable laws, rules and regulations, whether domestic or foreign. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to legal@charted.co.za.
You may contact us at the following address:
Charted Global (Pty) Ltd
71 Kavalier Street, Hunters Creek,
Kuils River, 7580
South Africa
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