1. Introduction
- 1.1. These Layby Café Services Terms and Conditions (the “Layby Café Services Agreement”) form
part of the Agreement entered into between Layby Café and the Merchant (the “Agreement”). As
a result:
- 1.1.1. all Definitions as set out in that Agreement also apply to this Layby Café Services
Agreement.
- 1.1.2. unless otherwise stated, the terms and conditions set out in the Agreement apply to this
Layby Café Services Agreement.
2. The Services
- 2.1. Layby Café shall provide, with reasonable skill and care, to the Merchant the Layby Café Service
selected by the Merchant, as indicated on the “Product Selection” table above.
- 2.2. A record of payments transaction history will always be available for both the Merchant and the
Customer, recording all amounts paid to-date and the value of all future pending payments.
-
2.3. Subject to clauses
- 2.4 and 2.5, all funds received towards laybys from Customers in terms of
Customer Layby Sales Agreements will be received directly into the applicable bank accounts of
Layby Café, from where they will be transferred and held in treasury by Old Mutual Wealth Private
Client Securities, or such other treasury provider as nominated by Layby Café, for the full duration
of the Customer Layby Sales Agreement.
- 2.4. If the Merchant meets certain qualification criteria as required by Layby Café from time to time,
Layby Café will allow the Merchant to take deposits in-store, provided that the Merchant agrees,
as it hereby does, to pay over to Layby Café such deposit within 7 (seven) days of the respective
Customer Layby Sales Agreement being terminated as provided for in clause 10.
- 2.5. If the Merchant meets certain qualification criteria as required by Layby Café from time to time,
Layby Café will allow the Merchant to receive interim payments, provided that the Merchant agrees,
as it hereby does, to refund to Layby Café the total sum of such payments within 7 (seven) days
of the respective Customer Layby Sales Agreement being terminated as provided for in clause 10.
- 2.6. As set out in the Agreement, the Merchant shall have access to Layby Café’s telephonic technical
support for the Layby Café Service.
- 2.7. Layby Café has no obligation to produce improvements or upgrades to the Site, the Layby Café
Platform or the Layby Café Services. However, if it does make such upgrades or improvements
commercially available, same shall be provided to the Merchant. The Merchant acknowledges that
if Layby Café makes upgrades or improvements commercially available, it may be necessary for
the Merchant to implement such improvements or upgrades in order to continue utilising the Layby Café
Services.
3. The Role of Layby Café – Commercial Agent
- 3.1. In providing the Layby Café Services (including the processing of Payments), Layby Cafe is acting
as the commercial agent of the Merchant to conclude the Customer Layby Sales Agreements. The
Customer Layby Sales Agreements will be between the Merchant and the Customer.
-
3.2. Except as expressly provided in this Layby Café Services Agreement, the Merchant shall be solely
responsible for all Customer service issues relating to its supply of Goods (including pricing,
rebates, item information, availability, technical support, functionality, warranties, guarantees,
order fulfilment, shipping, handling, order cancellation, returns, refunds, adjustments, feedback
and product or service complaints). In performing Customer service, the Merchant shall present
itself to its Customers and potential Customers as a separate legal entity from Layby Café. It is the
responsibility of the Merchant and not Layby Café to resolve any dispute or claim raised by a
Customer relating to the purchase Goods from the Merchant.
4. Transaction Fees
- 4.1. The Merchant agrees to the applicable Transaction Fee as set out in the “Product Selection” table
above.
-
4.2. The Merchant shall not charge the Customer any interest charges, membership fee or service fee
on any Customer Layby Sales Agreement.
-
4.3. The Transaction Fees are exclusive of amounts in respect of VAT.
- 4.3.1. Layby Café will deduct the applicable VAT amount from the amount owing to the Merchant
as per clause 5.8 below.
- 4.3.2. The Merchant will be solely responsible for payment of, and agrees to pay all sales taxes
or other taxes relating to any other taxes applicable to this Layby Café Services Agreement
(other than taxes, if any, on Layby Cafe's income).
- 4.4. If the Merchant disputes any invoice or other request for payment, the Merchant shall as soon as
possible notify Layby Café in writing.
-
4.4.1. The Parties shall promptly refer the dispute to resolution under the procedure set out in
the Agreement.
- 4.4.2. Layby Café shall provide all such evidence as may be reasonably necessary to verify the
disputed invoice or request for payment.
- 4.4.3. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due
date as set out in clause 4.1 above.
- 4.5. All payments payable to Layby Café under this Layby Café Services Agreement shall become due
immediately on its termination.
5. The Merchant’s Obligations in respect of the Layby Café Services
- 5.1. The Merchant shall:
- 5.1.1. co-operate with Layby Café and provide to Layby Café all information as Layby Café shall
reasonably require to enable it to provide the Layby Café Services, including for the
integration or display of the Layby Café payment option on the Merchant Materials;
- 5.1.2. display, on its website and other Merchant Materials, the ability to login or process
Payments (as applicable) through the Layby Café Platform in a manner consistent with
Layby Café's brand guidelines, as communicated to the Merchant from time to time;
- 5.1.3. comply with its legal, regulatory and contractual obligations to the Customers in respect of
all purchases of Goods in terms of Customer Layby Sales Agreements; and
- 1.4. refrain from doing anything which Layby Café reasonably believes to be disreputable or
capable of damaging the reputation or goodwill of Layby Café.
- 5.2. If the Merchant breaches of any of its obligations in clause 5.1 above, Layby Café may, without
liability, immediately suspend the provision of the Layby Café Services to the Merchant until such
time as Layby Café determines in its sole discretion (acting reasonably) that such breach has been
adequately remedied. Such suspension shall not affect the validity of any Customer Layby Sales
Agreement which has been concluded prior to suspension and this Layby Café Services
Agreement shall continue to apply in respect of such Customer Layby Sales Agreements until they
are fulfilled or are themselves terminated as further set out herein.
- 5.3. Layby Café shall have no liability for any failure to provide or delay in providing the Layby Café
Services in accordance with the terms of this Layby Café Services Agreement to the extent such
failure or delay results from the failure of the Merchant to comply with clause 5.1 or the Merchant
has otherwise caused or contributed to the failure (by act or omission).
- 5.4. Unless otherwise agreed by Layby Café in writing, the Merchant acknowledges and agrees that it
shall (at its own cost) be solely responsible throughout the term of this Layby Café Services
Agreement for the provision of all equipment, software, systems and telecommunications facilities
which are required to enable the Merchant to receive the Layby Café Services.
- 5.5. Should the Merchant require an integration of the service into their Point of Sale (POS) system,
the development, integration or modification costs associated with the implementation of the
service will be determined on a project specific basis and will necessitate an additional agreement
between the Parties.
- 5.6. It is the responsibility of the Merchant to set aside the Goods and store them separately to other
Goods. Such Goods will be clearly identified as “Layby” Goods by a number or some other
identification.
- 5.7. Once the full amount has been received by Layby Café, both the Customer and Merchant will be
informed of the completion of the Customer Layby Sales Agreement, at which point the Merchant
becomes liable for the delivery of the specific Goods as described in the creation of the transaction.
- 5.8. Once delivery has been effected, the funds, net of the deductible transaction fees associated with
the particular service and any applicable VAT or other tax (“net funds”), will become available to
the Merchant.
- 5.9. Once the Customer Layby Sales Agreement has been concluded, Layby Café will pay the net
funds to the bank account of the Merchant as set out in Annexure A of the Agreement.
- 5.10. No monthly subscription or setup fees will be charged to the Merchant. Transaction fees will be
automatically deducted from the amount that becomes payable to the Merchant on completion of
a Customer Layby Sales Agreement.
- 5.11. If the Merchant:
- 5.11.1. fails to pay any fees to Layby Café by their due date; or
- 5.11.2. breaches any of the provisions of this Layby Café Services Agreement; or
- 5.11.3. is placed into liquidation or sequestration, whether provisional or final; or
- 5.11.4. commits an act of insolvency or steps are taken against it or by it to commence business
rescue proceedings,
- Layby Café has the right, without prejudice to any other rights that it has in law, to:
a. claim specific performance of the Merchant’s obligations under this Layby Café
Services Agreement whether or not same are due for performance; or
b. immediately terminate this Layby Café Services Agreement,
- and in both cases Layby Café shall be entitled to claim from the Merchant whatever damages or
loss it has suffered.
- 5.12. If Layby Café:
- 5.12.1. fails to pay any fees to the Merchant by their due date; or
- 5.12.2. breaches any of the provisions of this Layby Café Services Agreement; or
- 5.12.3. is placed into liquidation or sequestration, whether provisional or final; or
- the Merchant has the right, without prejudice to any other rights that it has in law, to:
c. claim specific performance of Layby Café’s obligations under this Layby Café Services
Agreement whether or not same are due for performance; or
d. immediately terminate this Layby Café Services Agreement,
and in both cases the Merchant shall be entitled to claim from Layby Café whatever damages or
loss it has suffered.
6. Intellectual Property Rights
- 6.1. Subject to clause 6.3 below, all Intellectual Property Rights are and shall remain the exclusive
property of the party owning them (or, where applicable, the third party from whom that party's right
to use the Intellectual Property Rights has derived). The Intellectual Property Rights in all data relating to Payments held on the Merchant Systems shall be owned by the Merchant and the
Intellectual Property Rights in all data relating to Payments held on Layby Café’s Systems shall be
owned by Layby Café.
- 6.2. The Merchant hereby grants Layby Café a royalty-free, non-exclusive, non-transferable, nonassignable
license to use the Intellectual Property Rights owned by the Merchant (and its Affiliates
or its licensors) ("Merchant Content") to such extent as is necessary for Layby Café to perform
its obligations under this Layby Café Services Agreement. In particular, the Merchant agrees that
such license includes the right for Layby Café to publish the Merchant’s name, artwork, branding,
text and logo on the Site and the Layby Café Platform and on the website and online services of
Layby Café's Affiliates and advertising and distribution partners, in each case to acknowledge the
Merchant as a participant in the Layby Café Platform.
- 6.3. Layby Café or its licensors shall own all rights and interest in and to its Intellectual Property Rights.
Layby Café hereby grants the Merchant a royalty-free, non-exclusive, non-transferable, nonassignable
license to use the Intellectual Property Rights owned by Layby Café and used by the
Merchant in receiving the Layby Café Services ("Layby Café IPR") to such extent as is necessary
to enable the Merchant to receive the Layby Café Services during the term of this Layby Café
Services Agreement.
- 6.4. The Merchant shall not, unless expressly authorised by Layby Café in writing, rent, lease,
sublicense, distribute, transfer, copy, reproduce, download, display or modify the Layby Café IPR
or any portion thereof, or use such Layby Café IPR as a component of or a base for products or
services prepared for commercial sale, sublicense, lease, access or distribution. The Merchant
shall not prepare any derivative work based on the Layby Café IPR, nor shall it translate, reverse
engineer, decompile or disassemble the Layby Café IPR.
- 6.5. To the extent that the Layby Café IPR made available to the Merchant includes any software,
computer program or code, including application programming interfaces or software development
kits ("Layby Café Software"), the Merchant agrees:
- 6.5.1. not to copy or otherwise reproduce the Layby Café Software except where such copying
is incidental to the use of the Layby Café Software in accordance with this Layby Café
Services Agreement, or where necessary for the purpose of back up or operational
security;
- 6.5.2. not to sublicense, translate, merge, adapt, vary or modify the Layby Café Software, or any
part of it;
- 6.5.3. not to make alterations to, or modifications of, the Layby Café Software or any part of it, or
permit the Layby Café Software or any part of it, to be combined with, or become
incorporated in, any other materials, programs or software;
- 6.5.4. not to disassemble, decompile, reverse-engineer or create derivative works based on the
whole or any part of the Layby Café Software or attempt to do any such thing except to the
extent that such actions cannot be prohibited because they are essential for the purpose
of achieving inter-operability of the Layby Café Services with the Merchant’s e-commerce
platform, and provided that the information obtained by the Merchant during such activities
is:
- 6.5.4.1. only used for the purpose of receiving the Layby Café Services or processing
Customer Layby Sales Transactions;
- 6.5.4.2. not unnecessarily disclosed or communicated without Layby Café’s prior
written consent to any third party; and
- 6.5.4.3. not used to create any software or other intellectual property that is
substantially similar to the Layby Café Software, nor used in any manner
which would be restricted by copyright;
- 6.5.5. to keep all copies of the Layby Café Software secure and to maintain accurate and up-todate
records of the use of the Layby Café Software;
- 6.5.6. to replace the current version of the Layby Café Software, or any part of it, with the updated
or upgraded version upon receipt of notification from Layby Café of such update or
upgrade;
- 6.5.7. to reproduce and include the copyright notice of Layby Café on all and any copies whether
in whole or in part, in any form, including partial copies or modifications, of the Layby Café
Software;
- 6.5.8. not to provide or otherwise make available the Layby Café Software, in whole or in part, in
any form to any third party without the prior written consent from Layby Café; and
- 6.5.9. to comply with all technology control or export law and regulations that apply to the
technology used or supported by the Layby Café Software.
- 6.6. Each Party shall, at its own cost, promptly do or procure the doing of all such acts and things and
execute or procure the execution of all such documents as may from time to time be required to
give effect to this clause 6 Except as expressly provided in this Layby Café Services Agreement,
no rights or obligations in respect of a Party's Intellectual Property Rights are granted to the other
Party or to be implied from this Layby Café Services Agreement.
7. Data Protection
Each Party undertakes that it will comply, and will cause its employees, agents and sub-contractors to
comply, with the Protection of Personal Information Act of 2013 (as amended) in connection with the
performance of its obligations under this Layby Café Services Agreement.
8. Warranties and Indemnities
- 8.1. Each Party warrants that it has the corporate power and capacity to enter into this Layby Café
Services Agreement and to perform its obligations under this Layby Café Services Agreement.
- 8.2. The Merchant warrants and represents that all information provided to Layby Café in the course of
applying to use the Layby Café Service is true and accurate in every respect and the Merchant will
keep all such information up to date during the term of this Layby Café Services Agreement.
- 8.3. The Merchant represents and warrants that it has the right to license the Merchant Content to
Layby Café in accordance with clause 6.2, and that the use, copying, modification and publication of the Merchant Content by Layby Café and by its Affiliates and advertising and distribution
partners will not:
- 8.3.1. infringe, violate or misappropriate any third party Intellectual Property Rights;
- 8.3.2. infringe any rights of publicity or privacy, and
- 8.3.3. be defamatory or obscene or otherwise violate any Applicable Law.
- 8.4. The Merchant warrants that it is located in and conducts its business in South Africa and that it will
only use the Layby Café Services within South Africa.
- 8.5. The Merchant warrants and represents that the Customer Layby Sales Agreements by Customers
and the integration of the Layby Café Services on the Merchant’s e-commerce platform meet all
Applicable Law in South Africa and the provision of the Layby Café Services by Layby Café will
not infringe any such Applicable Law. If it is determined that such acts do infringe any Applicable
Law, Layby Café may terminate this Layby Café Services Agreement immediately by notice in
writing to the Merchant.
- 8.6. The Merchant shall indemnify and hold Layby Café harmless from and against any and all claims
brought against Layby Café by a Customer or other third party, or which Layby Café may suffer or
incur, to the extent such claims arise out of or in consequence of or in connection with:
- 8.6.1. a Customer Layby Sales Agreement;
- 8.6.2. any security breach in relation to compromise or theft of Payment data held by the
Merchant or on the Merchant's behalf;
- 8.6.3. a breach of the warranties at clauses 8.3 and 8.5;
- 8.6.4. a failure by the Merchant to comply with the requirements of a regulatory authority or
Applicable Law; and
except, if and to the extent such claim is caused by Layby Cafe's gross negligence, breach of
contract or wilful misconduct.
9. Limitation of Liability
- 9.1. This clause 9 sets out the entire liability of the Parties (including any liability for the acts or
omissions of their respective employees, agents and sub-contractors) to each other in respect of:
any breach of this Layby Café Services Agreement; any use made by the Merchant or its Affiliates
of the Layby Café Services or any part of them; and any representation, statement or act or
omission (including negligence) arising under or in connection with this Layby Café Services
Agreement.
- 9.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest
extent permitted by law, excluded from this Layby Café Services Agreement. In particular, and
except as expressly stated in this Layby Café Services Agreement:
- 9.2.1. Layby Café makes no representations or warranties, express or implied, with respect to
merchantability, fitness for a particular purpose or non-infringement;
- 9.2.2. Layby Café does not warrant or guarantee that Merchant will achieve any level of sales,
revenue or profit;
- 9.2.3. Layby Café does not warrant or guarantee that the Layby Café Services will always be
available or operate error-free, or that any errors, omissions or misplacements in the
software will be corrected.
- 9.3. Layby Café shall not be liable to the Merchant for any damages or loss of whatever kind arising
out of or in connection with any act or omission of Layby Café, its employees, agents or
representatives that is related in any way to the execution and/or implementation of this Layby
Café Services Agreement unless such loss was occasioned by the negligent or wilful act or
omission of Layby Café.
- 9.4. Notwithstanding the aforegoing, Layby Café shall not be liable for any loss of profit or revenue,
indirect, special or consequential loss or damages of whatever kind, whether arising in contract,
delict or otherwise, suffered by the Merchant in connection with or arising out of this Layby Café
Services Agreement. In no event will Layby Café’s aggregate liability in respect of any claims
relating to this Layby Café Services Agreement exceed the transaction fees paid or payable by the
Merchant to Layby Café for the 12 (twelve) month period immediately preceding the date on which
the claim arose. Notwithstanding the aforegoing, Layby Café does not exclude or limit its liability,
if any, for any matter for which it would be illegal for Layby Café to do so and this clause shall
always be interpreted in accordance with and subject to this overarching proviso.
10. Termination
- 10.1. Termination for Convenience
Either Party may terminate this Layby Café Services Agreement at any time, with or without cause,
upon 90 days’ written notice to the other Party (or by terminating or suspending the Merchant’s account)
provided that such Termination for Convenience shall not affect the validity of any Customer Layby
Sales Agreement which has been concluded prior to such termination and this Layby Café Services
Agreement shall continue to apply in respect of such Customer Layby Sales Agreements until they are
fulfilled or are themselves terminated in terms of clauses 10.3 and 10.4 below.
- 10.2. Termination for Breach
Either Party may terminate this Layby Café Services Agreement if the other Party materially breaches
its obligations in terms of this Layby Café Services Agreement and such breach remains uncured for
30 (thirty) days following the notice of such breach by the non-breaching party. Layby Café reserves
the right to suspend the Merchant’s access to the Layby Café Platform and to use the Layby Café
Services in the event of any breach of this Layby Café Services Agreement and shall not be liable for
damages as a result of such suspension. Provided that a breach does not result in it being impossible
for Customer Layby Sale Agreements to be fulfilled in terms of the Layby Café Services provisions, and
notwithstanding a termination for breach, the termination shall not affect the validity of any Customer
Layby Sales Agreement which has been concluded prior to such termination and this Layby Café
Services Agreement shall continue to apply in respect of such Customer Layby Sales Agreements until
they are fulfilled or are themselves terminated in terms of clause clauses 10.3 and 10.4 below.
- 10.3. Termination of the Customer Layby Sales Agreement by the Customer
- 10.3.1. The Customer may cancel its Customer Layby Sales Agreement at any time prior to
delivery of the Goods as well as if, on delivery of the Goods, such Goods are damaged.
- 10.3.2. Such termination may be given by the Customer on the Layby Café Platform.
- 10.3.3. If a Customer cancels a Customer Layby Sales Agreement, Layby Café will automatically
generate a cancellation notification which sets out:
- 10.3.3.1. the purchase price of the Goods;
- 10.3.3.2. the total amount paid under the Customer Layby Sales Agreement; and
- 10.3.3.3. any amount owing to the Customer will be refunded by Layby Café to the
Customer’s Layby Café Wallet.
- 10.4. Termination of the Customer Layby Sales Agreement by the Merchant
- 10.4.1.1. Customer breaches a term of the Customer Layby Sales Agreement;
- 10.4.1.2. Merchant ceases to trade; or
- 10.4.1.3. Goods are no longer available.
- 10.5. Termination due to breach by the Customer
- 10.5.1. If a Customer has breached a term of a Customer Layby Sales Agreement and the
Merchant intends to cancel the Customer Layby Sales Agreement, before doing so the
Merchant must:
- 10.5.1.1. give the Customer notice of the Merchant’s intention to cancel the Customer
Layby Sales Agreement; and
- 10.5.1.2. allow the Customer at least 14 days within which to rectify the breach.
- 10.5.2. The notice to be given will be generated through the Layby Café Platform:
- 10.5.2.1. will specify the breach of the Customer Layby Sales Agreement for which the
Customer Layby Sales Agreement is being cancelled;
- 10.5.2.2. will state the time within which the Customer must rectify the breach;
- 10.5.2.3. will state the matters listed per below:
- 10.5.2.3.1. the purchase price of the Goods;
- 10.5.2.3.2. the total amount paid under the Customer Layby Sales Agreement; and
- 10.5.2.3.3. any amount owing to the Customer that will be refunded by Layby Café
to the Customer’s Layby Café Wallet.
- 10.5.3. The Customer Layby Sales Agreement is terminated at the end of the period specified in
the notice unless the Customer rectifies the breach before then or the Merchant agrees
not to terminate it.
- 10.6. Termination where the Goods are no longer available
- 10.6.1. If the Goods are no longer available, the Merchant must terminate the Customer Layby
Sales Agreement through the Layby Café Platform.
- 10.6.2. The Merchant may offer the Customer an “Upgrade” or “Exchange” option at the
Customer’s election. The Layby Café Platform will automatically update the Customer
Layby Sales Agreement and amend the layby payment amount as applicable.
- 10.6.3. If the Customer Layby Sales Agreement is terminated, Layby Café will refund all the funds
received by it to the Customer.
- 10.7. Effect of Termination
Subject to the above, when a Customer Layby Sales Agreement is terminated by either party,
Layby Café will refund all the funds received by it to the Customer.
11. Access to Data
12. Amendment of this Layby Café Services Agreement
Layby Café reserves the right to amend the terms and conditions as set out in this Layby Café
Services Agreement (including the level of its fees) from time to time and will furnish the Merchant
a notice to the effect thereof, without liability, on the Layby Café Platform.
13. Electronic Signature
- 13.1. All references to signatures and delivery of documents in this Layby Café Services Agreement
may be satisfied by procedures Layby Café has established or may establish from time to time
for an electronic system for execution and delivery of any such documents, including this Layby
Café Services Agreement.
- 13.2. The Merchant's electronic signature, including, without limitation, "click-through" acceptance of
this Layby Café Services Agreement through a website maintained by or on behalf of Layby Café,
is the same as, and shall have the same force and effect as, the Merchant’s manual signature.
- 13.3. Any such procedures and delivery may be effected by a third party engaged by Layby Café to
provide administrative services relating to this Layby Café Services Agreement.
