Terms of service

1. Definitions and interpretations

“Agreement” – means, collectively, the provisions of this “Agreement”, any Specific Provisions, and each Order Form.

“Technical difficulty” – technical irregularity that affects the availabity of the Services in their entirety.

“Scheduled maintenance” – any intervention done with the purpose to keep services in good conditions performed on the Homs Mall platform that may affect the availability of the Service.

“Notification” – written communication sent by email or displayed in any section of the Homs Mall platform, regarding any scheduled maintenance that may affect the availability of the Service. Homs Mall will make reasonable efforts to notify Customer of the scheduled maintenance at least 24 hours in advance.

“Party” – any of the signatories of this Agreement.

“Support” – the Homs Mall technical support center, available by email at [email protected], from Monday to Friday, between 09.00 – 17.00 (GMT+2) or through the contact form located at https://homsmall.co.za/contact .

“Normal use” – use of the Services, according to the order placed by Customer through the Order form, solely for the purpose for which the Service was offered and intended by Homs Mall, within the capacity limits and functionalities available and bound by the provisions of this Agreement and of the Homs Mall Terms of service.

“Terms of service” – rules that User must agree to abide by in order to use the Service, available at https://homs.co.za/terms-of-service/ Rules may as well be subject to change, without prior notice.

“Widget” – application, or component of a software interface, that enables a user to perform a function or access a service.

2. Information about the Terms of Use

2.1 The following “Terms of Use” are the rules and conditions under which the Homs Mall website (the “Website”) and Services (the “Services”) are being provided to you.

2.2 By accessing the Website (browsing, registering) or using the Services, you accept and agree to be bound by these Terms of Use, so please review them periodically. If you do not accept these Terms of Use, you must immediately cease using the Website and/or Services.

3. Changes to the Terms of Use

3.1 We are constantly making improvements to the Website and to the Services we provide you, therefore we reserve the right to make necessary changes to these Terms of Use at any time, without prior notice to the individuals accessing the Website or using the Services (that will be further referred to as “you” or “the Users”).

All changes referring to fees and pricing will take effect 7 days after they have been made public in the relevant area of the website. All other changes become effective the very day of publication on the Website. By accessing or using the Website and Services, you accept and agree to all such changes. If you do not agree to all such changes, you must immediately cease using the Website and/or Services.

4. Service description

4.1 Homs Mall provides a series of tools that can be used by companies to create and manage an online shop and hosts the online shops on its servers so that they can be accessed by third parties, Internet users.

4.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, with the privacy policies available at https://www.Homs Mall.co.za/info/privacy and with the applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, defamation, etc.). Customer hereby agrees to indemnify and hold harmless Homs Mall against any damages, losses, liabilities, settlements, fines and expenses (including without limitation of costs incurred and reasonable attorneys fees) in connection with any claim or action that arises from an alleged violation of the foregoing or other rules of public order. Although Homs Mall has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Homs Mall may choose to do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing and other rules of public order.

4.3 The present Agreement replaces all understandings or prior agreements, all statements or other communications over/concerning the Services between Customer and Homs Mall, regardless if oral or in any written form. The present Agreement does not invalidate your prior obligations to pay any outstanding charges owed to Homs Mall for previously provided Services.

5. Terms of Agreement

5.1 This agreement shall become effective as of the date of your acceptance by “agreeing” or “accepting” any of its counterparts (“Effective Date”) and shall continue to be in force unless and until terminated in accordance with the provisions of this Agreement.

5.2 Each Order Form shall commence its effects when Homs Mall receives your payment corresponding to the Services ordered, and shall continue to remain in force until: (a) the relevant Order Form is terminated in accordance with the provisions of this Agreement or of the Order Form; or (b) this Agreement and all of the Order Forms are terminated in accordance with the provisions of this Agreement.

5.3 If you do not place a new order for Services after the termination of the current order form according to its provisions, Homs Mall will downgrade/restrict your access to the Services and your online shop may become inaccessible to third parties, Internet users. You will still have access to your User account and you will be able to place a new order for Services.

5.4 This Agreement is valid for undetermined time. The Agreement expires when you cease using the Services, by cancelling your account, if your account is automatically cancelled by the system – situation which may occur if no activity is registered in your account for a period longer than 6 months or if Homs Mall suspends your access to the Services, as a consequence of violating any clause of this Agreement.

5.5 The Services for which you are charged, will stop being provided to you by Homs Mall, as soon as the Service plan that you have purchased expires, according to the corresponding Order form.

6. Payment

6.1 Customer agrees to pay in advance to Homs Mall all charges applicable to the Service plan that have been selected through the Order Form, as available at https://Homs.co.za/checkout and in effect at the time when the order is placed including, if any, all applicable taxes . The charges for the Services may be changed by Homs Mall from time to time, without prior notice.

6.2 Customer’s payment to Homs Mall should be considered to be validly made when Homs Mall receives it and only after you will receive access to the Services ordered.

6.3 In case of failure to pay applicable fees and/or charges at due dates, Homs Mall may limit, temporary or permanently suspend or terminate your account and access to Services.

6.4 Homs Mall will issue an invoice within 5 working days after payment is received. Customer can download the invoice from his user account.

7. Access to Website and Services

7.1 Homs Mall grants to Customer permission to access the Homs Mall Website and Services under the following terms and conditions:

1. All actual Users representing the Customer or the Customer himself should be over 18 to able to receive access to the Services provided by Homs Mall.
2. The Customer warrants that all information submitted are current, complete and accurate, as required by the registration process or in other sections of the Website and agrees to maintain and update this information as needed to keep it current, complete and accurate. Homs Mall reserves the right to suspend access to the Services, if it is discovered that the information submitted by Users does not comply with the requirements listed above. Homs Mall reserves the right to refuse registration of, or cancel accounts it deems inappropriate.
3. It is strictly forbidden to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect or part of the Website and Services;
4. Any interventions that might cause temporary or permanent dysfunction to the Website are strictly forbidden;
5. It is strictly forbidden to interfere with or disrupt the Website or Services or servers or networks connected to the Website or Services, except for those changes necessary to the best use of the Website;
6. It is strictly forbidden to defame or in any other way harass or invade the privacy of other members;
7. It is strictly forbidden to send any unsolicited or unauthorized advertising or promotional materials. Undertaking such actions will lead to the automatic suspension of your Customer/User Account. Customer acknowledges that he is liable and responsible for all actions that do not comply with the applicable law.
8. Homs Mall reserves the right to suspend accounts using domain or subdomain names that are harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or that otherwise degrade or intimidate individuals or certain groups on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability, etc..
9. If a Customer/User hasn’t logged in to his account for more than 6 months, then the access to Services may be temporary suspended and the online shops associated with this account will not be visible anymore. If no further activity is registered in the corresponding account after its suspension, Homs Mall reserves the right to definitively eliminate the suspended accounts and all their associated content from the system.
10. If the Customer/User doesn’t renew his membership plan for an online shop prior to the plan expiration date, then the online shop is automatically deactivated and is not visible anymore. The online shop will be reactivated, after the membership plan renewal for this shop and payment is confirmed.
11. Homs Mall reserves the right to suspend access to any User account at any time, in case of suspicions regarding the authenticity and accuracy of the information transmitted via the Website or Services.
12. The Customer/User is exclusively liable for all actions conducted by using the Services and for all the content transmitted via the Website or Services. Homs Mall shall not be liable to Customer or to any third parties for any loss of profits or special, incidental or consequential damages arising out of or in connection with the Website or Services.
13. The use of the Homs Mall Services does not guarantee the approval of the User’s registration for the price comparison services offered by the website Homs Mall.
14. The violation of the present Agreement will automatically lead to the termination of your User account.

7.2 In order to access the Services provided by Homs Mall Customer/User must set up an account on the Website. Customer will receive a password and an account designation after completing the registration process. Customer is responsible for maintaining the confidentiality of the password and of the account information, and for all activities that occur under the password and/or account. We should not be held liable if unauthorized persons make use of the password or account. Any suspicions of unauthorized use of your User account must be immediately and properly notified at support@Homs Mall.co.za. Homs Mall should not be held liable for any damages caused to Customer if such situations occur.

7.3 Customer may not use any automated means (such as scripts) to access the Website or Services or to collect information from them.

7.4 Links to other websites or resources may be provided by Homs Mall or by third parties. As control over such sites and resources cannot be performed, by using the Website and Services you acknowledge and agree that Homs Mall is not responsible for the availability of such external sites or resources, that we do not endorse and that Homs Mall is not responsible or liable for any content, advertising, products, product information or any other materials that are made available on or through these websites. Furthermore, Customer acknowledge and agree that any damage or loss caused, or allegedly caused, by the use of such external resources will not be accounted to Homs Mall or any of its third parties.

7.5 For every email message sent in connection with the Services, Customer acknowledges and agrees that as recipient of services has also agreed to receive such communication and that he shall not engage in the act of sending unsolicited emails.

7.6 Homs Mall reserves the right to decline your request to use other Homs Mall services.

7.7 In order to access the Services provided by Homs Mall, Customer/User must be a registered company. The Services provided by Homs Mall are not intended for use by individuals.

8. Responsibility for content

8.1 Customer acknowledge its responsibility for all information, data, text, photographs, graphics, video, messages and any other materials posted on his online shop.

8.2 Customer undertakes that he is the owner of all the materials/contents posted and if the case may be the Customer fully guarantees to keep Homs Mall unharmed in all situations by getting all the appropriate consents or permissions from third parties before making use of their materials/contents in any way, including for reproduction and distribution on the online store or other channels.

8.3 Customer agrees not use subdomains or domains or post any Content that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party, unless he holds the owners’ consent to perform such an action.

8.4 Customer will not post any Content that might harm Homs Mall or other third parties.

8.5 Customer will not post any Content that is false, inaccurate, illegal, harmful, abusive, harassing, vulgar, privacy invasive or that offends or intimidates individuals or groups of individuals with regard to gender, age, race, ethnicity, religion, sexual orientation or disabilities.

8.6 Customer will not post any Content promoting illegal activities.

8.7 Customer will not post or distribute any Content containing unsolicited or unauthorized advertising, “junk mail”, “spam” or unsolicited information.

9. Policies regarding Homs Mall Widgets

9.2 Because Homs Mall may change policies at any time, please check this page periodically for updates. It’s Customer’s responsibility to keep up to date with, and adhere to, the policies posted here.

9.3 Customers may not place the Homs Mall widgets on pages that display content that violates the following content guidelines.

9.4 The sites where the Homs Mall widgets are published may not include or link to:

1. Pornography, adult or mature content
2. Violent content
3. Content related to racial intolerance or advocacy against any individual, group or organisation
4. Excessive profanity
5. Hacking/cracking content
6. Gambling or casino-related content
7. Illicit drugs and drug paraphernalia content
8. Sales of beer or hard alcohol
9. Sales of tobacco or tobacco-related products
10. Sales of prescription drugs
11. Sales of weapons or ammunition (e.g. firearms, firearm components, fighting knives, stun guns)
12. Sales of products that are replicas or imitations of designer or other goods
13. Sales or distribution of coursework or student essays
14. Content regarding programs designed to compensate users for clicking ads or offers, performing searches, surfing websites or reading emails
15. Any other content that is illegal, promotes illegal activity or infringes on the legal rights of others
16. Illegal downloads, torrents, torrent search engines, etc.

9.5. The sites where the Homs Mall Widgets, are published must adhere to the commonly accepted and respected web quality guidelines, including but not limited to:

1. The sites must not use cloaking or sneaky redirects;
2. The sites must not include pages with malicious behavior, such as phishing or installing viruses, trojans, or other badware;
3. The sites may not change user preferences, redirect users to unwanted websites, initiate downloads, include malware or contain pop-ups or pop-unders that interfere with website navigation.

10. Warranty Disclaimer

10.1 Customer uses the Services at its own risk. Unless expressly provided in this Agreement or as required by applicable law, Homs Mall does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. The Services are provided “as they are” and Homs Mall disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and suitability for a particular purpose and non-infringement.

11. Legal obligations and limits of Liability

11.1 Any matter in relation to or arising from the use of the Website, including any breach or alleged/suspicioned breach of these Terms of Service, or your violation of any law or of the rights of any third party that can lead to a third party soliciting claims and/or damages to us and our partners and employees, will be fully undertook, covered and compensated by you.

11.2 Any liability for damage to Customer’s computer system or loss of any data resulting from the use of the Website shall not be under the Homs Mall responsibility. No matter of circumstances Homs Mall does not guarantee the integrity of the files that you may download or that they are free of viruses, contamination or other types of threats.

11.3 In no event Homs Mall should not and cannot be held liable whether in contract, tort (including negligence, strict liability or otherwise), for any indirect, punitive, special, exemplary, incidental or consequential damages (including, but not limited to, lost savings, lost profit, lost goodwill, lost or corrupted data or business interruption), even if notified in advance of such possibility.

11.4 Homs Mall should not and cannot be held liable for the loss of data that results from Customer’s direct or indirect actions. If data, depending on their nature, can be recovered, the recovery is Customer’s sole responsibility. Customer can perform a data recovery within 72 hours from deletion, by using the options available in its user account. Homs Mall does not warrant that all data lost can be recovered and cannot be held liable for the integrity of the recovered data.

11.5 Homs Mall shall not be liable for the contents provided by the Customer. In this case, to the extent that Homs Mall should have claims from clients or third parties, Homs Mall immediately transfer liability for these claims to Customer; Customer agree to immediately accept and give effects to the transfer of liability.

11.6 Neither of the Parties to the Contract shall be liable to the other party for breakdowns that occur outside the sphere of influence of the contractual parties (force majeure, fault of a third party, failure of communication networks and gateways of other operators or breakdowns that lie within the sphere of risk of other network providers, etc.).

11.7Homs Mall should not and cannot be held liable for the automatic and definitive elimination from the system of accounts already suspended for inactivity and their associated content.

12. Indemnification

12.1 Customer agrees to defend, indemnify and hold harmless Homs Mall and its officers, directors, owners, agents, employees, advisers and consultants, from and against any claims, actions, demands, liability, damages (including legal and professional fees) asserted by any third party and arising from Customer’s use of the Services, Customer’s conduct, content, communications, alleged infringement of third party intellectual property or privacy rights, or violation of this Agreement.

13. Limitation of Remedies

13.1 Customer agrees that if Homs Mall breaches this Agreement, his sole and exclusive remedy will be to terminate this Agreement and your relationship with Homs Mall. This applies regardless of whether the remedy fails in fulfilling its essential purpose.

14. Service availability

14.1 Homs Mall reserves the right to change the structure and interface of any page of the Homs Mall website at any given time and without prior notice and to suspend access to the Services temporarily or permanently, partially or in whole. Homs Mall will fulfill its obligations to you until the expiration date of the Service plans paid by you in advance.

15. Other Provisions

15.1 Both Parties undertake to treat with strict confidence all data, information and documents that they become aware of on the basis of their cooperation and which are liable to secrecy. Passing such information or its use to third parties, requires the prior consent of the other party to the Contract. Parties shall also impose the obligations to secrecy, which they have undertaken on all of those who are entrusted by the parties with information or services arising from this Agreement. This prohibition shall not apply for announcements made solely for internal distribution or notification to parties obliged by law or contract to maintain silence on such matters. The exceptions to the provisions of this item include: mentioning the contractual parties and giving general descriptions of the subject-matter of the Agreement in press releases, offers or other marketing documents that belong to the parties to the Agreement. Irrespective of a termination of this Agreement, for whatever reason, the obligations in accordance with this item shall contain to exist for the duration of 12 (twelve) months even after the termination of the Agreement.

15.2 Homs Mall may assign third Parties to provide the Services owed.

15.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Custumer does not have any authority of any kind to bind Homs Mall in any respect whatsoever.

15.4 Should individual provisions of this Agreement be wholly or partially invalid, this shall not affect the validity of the rest of the Agreement. The parties undertake to replace invalid provisions with valid ones, such that the economic objective pursued by this Agreement shall be achieved as complete as possible. This applies accordingly should there be an unwanted loophole in the provisions or provisions which are impracticable.

15.5 All legal relationships arising from this contractual relationship shall be subject to the Romanian applicable laws.

15.6 The sole place of jurisdiction for all disputes arising in connection with this Contract shall be the corresponding head office of Homs Mall or, should Homs Mall so decide, your place of business.

15.7 This Agreement has been executed in the English language, which shall be the binding and controlling language for all matters relating to the meaning and interpretation of this Agreement.

16. Trademark information

16.1 “Homs Mall” and the Homs Mall logo are trademarks of Homs Mall Pty Ltd. You agree not to display or use, in any manner, the Homs Mall trademark or any related content without prior permission from Homs Mall Pty Ltd.

Addendum – Data Processing Terms

1. Definitions

“Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC, and any legislation and/or regulation implementing or made pursuant to them, or which amends or replaces any of them (including the General Data Protection Regulation, Regulation (EU) 2016/679);

“Data Processor”, “Data Subject”, “Data Controller”, “Controller”, “Processor”, “Processing”, “Subprocessor” shall be interpreted in accordance with applicable Data Protection Legislation;

“Personal Data” (“Personal Data of Data Subjects”) as used in this Addendum means information relating to an identifiable or identified Data Subject who visits or engages with the store of the Customer (“Controller”), which Homs Mall (“Data Processor”) processes in the course of providing you with the Services;

“Services” means the services provided to You, the Customer, by Homs Mall, according to the provisions of the Homs Mall Terms of use.

“Subprocessor” means third parties authorized under these Data Processing Terms to have logical access to and process Personal Data in order to provide parts of the Services and any related technical support;

“Term” means the period from May 25, 2018 until the end of Homs Mall’s provision of the Services.

All other terms in this Addendum shall have the same definition as in the Agreement.

2. Introduction

These Data Processing Terms are entered into by Homs Mall and Customer and supplement the Agreement. The Data Processing Terms come into force on May 25, 2018.

These Data Processing Terms reflect the parties’ agreement on the terms governing the processing and security of Personal Data of Data Subjects in connection with the Data Protection Legislation.

3. Data Processing

3.1 You agree that Homs Mall will process the Personal Data as a Data Processor, only for the purpose of providing you the Services. If Homs Mall is required by law to Process the Personal Data for any other purpose, Homs Mall will provide you with prior notice of this requirement, unless Homs Mall is prohibited by law from providing such notice.

3.2 Homs Mall will notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Data Subject or Supervisory Authority relating to Homs Mall’s Processing of the Personal Data.

3.3 Homs Mall will implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected.

3.4 Homs Mall will notify you promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data.

3.5 Homs Mall will ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the Personal Data.

3.6 In the course of providing the Services, you acknowledge and agree that Homs Mall may use Subprocessors to process the Personal Data. Homs Mall’s use of any specific Subprocessor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between Homs Mall and Subprocessor. Homs Mall is allowed to use the same Subprocessors already contracted by Homs Mall until May 25, 2018.

3.7 Homs Mall will assist Customer with regards to all requests for access to Personal Data, as specified by the Data Protection Legislation. If the Customer cannot process these requests by using the functionality provided to the Customer as part of the Services and the handling of such requests requires the direct intervention of Homs Mall, Homs Mall may charge a fee, determined according to the time spent by Homs Mall in assisting the Customer. Customer will be informed of such fees in advance.

3.8 Homs Mall will allow Customer or a third party auditor appointed by Customer to conduct audits (including inspections) to verify Homs Mall’s compliance with its obligations under these Data Processing Terms. Customer will send any request for an audit in written form, 30 days in advance and Homs Mall and Customer will discuss and agree on the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any audit. Homs Mall may object to any third party auditor appointed by Customer to conduct any audit if the auditor is, in Homs Mall’s reasonable opinion, not suitably qualified or independent, a competitor of Homs Mall or otherwise manifestly unsuitable. Any such objection by Homs Mall will require Customer to appoint another auditor or conduct the audit itself. Homs Mall may charge a fee for any audit. Homs Mall will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.

3.9 Customer is solely liable for the correct use of the Service, in order to ensure compliance with the Data Protection legislation.

3.10 Customer is solely liable to ensure the security of Customer’s access data, systems and devices used to directly or indirectly access the Services.

3.11 Customer is solely liable to ensure the security of the Personal Data which Customer may choose to transfer or store outside of the locations provided as part of the Services.

3.12 Customer is solely liable for any incidents that may affect the Personal Data, if such incidents have been caused by the Customer’s incorrect use of the Services.

4. Types of Personal Data

Personal Data may include the following types of data:

• Account data, such as account ID, device ID, IP address, history of service use etc.;
• Personal data such as name, email address, address, phone number;
• Data history and product history;
• If instructed by Customer following Customer’s use of the Services, other additional data which Homs Mall cannot foresee.

5. Categories of Data Subjects

Personal Data will concern the following categories of data subjects:

• data subjects about whom Homs Mall collects personal data in its provision of Services to Customer; and/or
• data subjects about whom personal data is transferred to Homs Mall in connection with the Services by, at the direction of, or on behalf of Customer.

6. Data Deletion

6.1 Deletion during Term

1. If the Services provide Customer with the necessary functionality to initiate the deletion of Personal Data, then Homs Mall will delete such Personal Data from its systems as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.
2. If the functionality of the Services does not include the option for Customer to delete Personal Data, then Homs Mall will comply with any reasonable request from Customer to facilitate such deletion, insofar as this is possible taking into account the nature and functionality of the Services and unless EU or EU Member State law requires storage. Homs Mall may charge Customer a fee for such interventions. Homs Mall will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance.

6.2 Deletion on Term Expiry

On expiry of the Term, Customer instructs Homs Mall to delete all Personal Data (including existing copies) from Homs Mall’s systems in accordance with applicable law. Homs Mall will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.

7. Third-Party Services

As part of the Services provided to Customer, Homs Mall offers direct integration with some popular web apps and tools and we also provide custom integration with third-party services, if requested by Customer. Customer must ensure that the third-party services or tools Customer may choose to use are also be compliant by themselves with the Data Protection Legislation. Homs Mall will not be liable at any level for damages arising out of using partner tools or any other third party tools used along with the Homs Mall Services.

8. Miscellaneous

In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail.