Terms of service
Definitions and Interpretations
Definitions. For purposes of the Agreement:
‘*Affiliate*’ means any parent company, subsidiaries, joint ventures, or other companies under a common control;
‘*Agreement*’ means the agreement between thisarmy and Customer, consisting of these Terms and any Orders the parties enter into;
‘*Customer*’ or ‘you’ means any person who visits, signs up to or logs into Tank, or concludes an Order;
‘*ECT Act*’ means the Electronic Communications and Transactions Act 25 of 2002;
‘*Effective Date*’ means in respect of each Order, the effective date stipulated in each Order, in the absence of which it will be the date the Order is accepted by thisarmy;
‘*EULA*’ means an end user license agreement;
‘*Fees*’ means the fees, charges, or purchase consideration indicated in the pricing matrix that Customer will pay to thisarmy in respect of Goods and Services provided by thisarmy under Orders;
‘*Goods*’ means any goods thisarmy provides to Customer, under Orders;
‘*Order*’ means a goods or services order agreed to and signed by both the parties describing the specific Goods or Services to be provided by thisarmy to Customer;
‘*Services*’ means any services thisarmy provides to Customer as specified in the features matrix, under Orders;
‘*Service Levels*’ means the levels according to which thisarmy will provide each Service as agreed by the parties;
‘*Sign*’ means the handwritten signature or advanced electronic signature of the duly authorised representative of a party;
‘*Signature Date*’ means the date of signature by the party signing last;
‘*Terms*’ means these terms, consisting of:
- these customer relationship terms; and
- any other relevant specific terms, disclaimers, rules and notices agreed between the parties, (including any that may be applicable to a specific section or module of Tank or any specific Goods or Services);
‘*Tank*’ means withtank.com, a platform (or hosted application) for building a Website, including:
- all content, goods or services, applications or apps available through Tank; and
- any other marketing material of thisarmy;
‘*thisarmy*’ means youandthisarmy (Pty) Ltd;
‘*Website*’ means a website built on Tank by a Customer; and
‘*Writing*’ means any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents, fax transmissions, but excludes information or data in electronic form.
Definitions in the Order. Words defined (or assigned a meaning) in the Order will have that meaning in these Terms, unless the context clearly indicates otherwise.
Interpretation. A word defined or assigned a meaning in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time. A reference to a person includes a natural and juristic person and a reference to either party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
Conflict. If there is a conflict of meaning between these customer relationship terms and any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, the specific terms will prevail in respect of your use of the relevant section or module of Tank, or Goods or Services.
These Terms commence on acceptance and continue until terminated.
Use of Tank
License to use Tank. thisarmy grants each Customer a limited, revocable license to use Tank subject to the Agreement. Any person wishing to use Tank contrary to the Agreement must obtain thisarmy’s prior written consent.
Policies. thisarmy may establish general polices and limits concerning the use of Tank. thisarmy may log off, deactivate, or delete any Customer account.
Support and performance. thisarmy may provide documentation to assist a Customer build a Website. Each Customer is responsible for implementing and maintaining its Website, including correcting any faults. To enable a great experience for each Customer on Tank, each Customer must ensure that its Website does not unduly degrade the performance of Tank, including exceeding the quotas and limitations set by thisarmy (for example, bandwidth). If this happens, thisarmy may suspend the Website.
Framing. No person, business, or web site may frame Tank or any of the pages on Tank, or frame any websites on Tank for the purpose of by-passing the paid-for Service. If this happens, thisarmy may suspend the Website.
Domain redirection. No person, business, or web site may redirect an existing domain to Tank or any of the pages or websites on Tank for the purpose of by-passing the paid-for Service. If this happens, thisarmy may suspend the Website.
Linking. A person, business, or web site may link to Tank only by linking to the home page [http://withtank.com/] of Tank. thisarmy prohibits Customer from “deep linking” to any other pages in a manner that would incorrectly suggest endorsement or support of Customer by thisarmy or suggests Customer is the owner of any intellectual property belonging to thisarmy.
Spiders and Crawlers. No person, business, or web site may use any technology (including spiders or crawlers) to search and gain any information from Tank.
thisarmy may modify, suspend, or discontinue providing Tank or any Goods or Services (with or without notice) and will not be liable.
Passwords and Security. Only a registered Customer can make offers. Each Customer is responsible for keeping their password secure. Each Customer is solely responsible and liable for activities that occur under their account. Customer authorises thisarmy to act on any instruction given under Customer’s account, even if it transpires that someone else has defrauded both thisarmy and Customer, unless Customer has notified thisarmy prior to thisarmy acting on a fraudulent instruction.
Customers. Customer accounts registered by bots or other automated methods are not permitted. Each Customer must provide their full legal name, a valid email address, and any other information requested in order to complete the registration process. One person may only use each Customer’s login - thisarmy does not permit multiple people to share a login.
Invitation to do business. The marketing of the Goods or Services by thisarmy is merely an invitation to do business or for Customer to make an offer to procure Goods or Services. The parties only conclude a valid and binding Order when thisarmy accepts the offer made by Customer. Unless proven to the contrary, thisarmy only accepts an offer relating to Goods, when thisarmy ships the Goods. If only part of the Goods relating to an offer are shipped, thisarmy only accepts that portion of the offer. Unless proven to the contrary, thisarmy only accepts an offer relating to Services, when thisarmy begins providing the Services. thisarmy may accept or reject any offer. If thisarmy does not accept any offer, then thisarmy will refund any monies already paid by Customer.
Cancel. thisarmy may cancel any Order at any time in its absolute discretion. thisarmy will refund any monies already paid by Customer.
Fees. Despite thisarmy’s best efforts, the stated Fees may be incorrect. thisarmy will confirm the Fees for any Goods or Services when thisarmy accepts the Customer’s offer.
Third party terms. If a third party supplies or delivers any Goods or Services directly to you, third party terms or conditions may apply. Customers are solely responsible to ensure they understand and agree to those terms.
Time and place. The parties conclude any agreement between them at the time when a duly authorised representative of thisarmy accepts the relevant offer and at the place where thisarmy has its head office. thisarmy does not need to communicate the acceptance of the offer to Customer.
Orders. The Terms in effect at the time Customer makes an offer will govern the Order. Each Order will create a separate agreement. Despite that, thisarmy may consider the breach of any one Order to constitute a breach of any or all Orders.
Stock availability. thisarmy may not always have the Goods on which Customers make offers in stock. Customers may cancel the offer or make another offer on the part of the Goods that are in stock.
Capacity of Customer
Each Customer represents and warrants that Customer (and any person who places an Order on thisarmy):
- is old enough under applicable law to enter into the Agreement;
- is legally capable of concluding any transaction;
- possesses the legal right, full power, and authority to enter into the Agreement;
- is authorised to use the password required for any account; and
- will submit true, accurate and correct information to thisarmy and Tank.
- If Customer is younger than 18 years of age, Customer warrants that Customer has the consent of its legal guardian to enter into the Agreement or that Customer has obtained legal status in another manner.
Sale. thisarmy sells to Customer who purchases the Goods on the terms of the Agreement.
Countries. Customer may only make offers for Goods for delivery to the countries listed on Tank. If Customer’s shipping or billing address is not listed as a choice under the country category on Tank, Customer must not make an offer. thisarmy is only able to sell into the countries listed, and thisarmy is only able to ship to those countries.
Shipping and packing. thisarmy will display all available shipping options and charges before Customers completes Customer’s purchase. Unless otherwise agreed in writing, thisarmy will select the specific mode of shipment of the Goods and the cost of shipment will be for Customer’s account. thisarmy will pack the Goods in accordance with thisarmy’s packaging specifications for the Goods and the cost of packaging will be included in the Fees.
Time until dispatch. Once thisarmy receives an offer, thisarmy will endeavour to dispatch the Goods as soon as reasonably practicable (which may be longer than 30 calendar days) to the address specified in the offer. thisarmy will try to adhere to the estimated delivery dates but accepts no liability for failing to do so. Customer may not withdraw any offer due to a delay in delivery.
Risk and ownership. All risk of loss or damage to the Goods will pass to Customer upon physical delivery of the Goods to Customer’s delivery address. Ownership in the Goods will only pass to Customer upon the payment in full of the Fees.
Provision. thisarmy will provide the Services to Customer at the Service Levels.
Support. Paid-for Services include access to priority email support. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by thisarmy to respond within one business day) concerning the use of the paid-for Services. “Priority” means that support for paid-for Services customers takes priority over support for users of the standard, free Services. thisarmy will provide support in accordance with its practices, procedures and policies.
Fees and Payment
Fees and payment. Customer will pay thisarmy the Fees. Thisarmy will invoice the applicable Fees in advance, starting from the Effective Date. thisarmy may change the Fees and payment terms upon 30 calendar days prior written notice to Customer. Customer may cancel paid-for Services at anytime on 30 days written notice to thisarmy.
Due dates. Fees must be paid promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.
Manner of payment. Customer must make payment in the manner specified in the Order.
Late payments. The additional surcharges and penalties specified in the Order will apply to any payment received after the due date to cover collection fees and additional administration costs. Customer must pay the surcharges and penalties to thisarmy on-demand. thisarmy may withhold or remove any Goods or halt the provision of any Services until Customer has paid all amounts that are due.
Interest on overdue amounts. Any amount not paid by Customer on the due date will bear interest for the benefit of thisarmy, from the due date until the date Customer pays it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of thisarmy’s bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
Appropriation. thisarmy may appropriate any payment received from Customer towards the satisfaction of any indebtedness of Customer to thisarmy under the Agreement.
Withhold payment. Customer may not withhold payment of any amount due to thisarmy for any reason.
Certificate. A certificate, signed by an accountant appointed by thisarmy, of the amount due by Customer and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.
Tax. All Fees exclude any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by Customer in addition to the Fees.
Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.
Payment profile. Customer and any signatory consent and agree that thisarmy may provide any registered credit bureau with information about the payment of amounts.
Warranty. The Goods will be subject to any warranty indicated in the description of the Goods appearing on Tank, the accompanying documentation, packaging, orEULA. Please review those documents carefully. Customer will have the same rights against thisarmy as thisarmy has against the supplier regards defects in the Goods, the intention being that thisarmy’s liability to Customer will be co-extensive with the right of recourse thisarmy has against the supplier. thisarmy will provide a copy of any warranty on request. To the extent legally possible, thisarmy assigns to Customer the benefit of any supplier warranties that a supplier may give to thisarmy regards the Goods. Customer may not waive any of thisarmy’s common law rights as against the supplier.
Sales representatives. No sales representatives of thisarmy has the authority to bind thisarmy and no representation, warranty or any other statements made or given by any sales representative of thisarmy will be binding on thisarmy, unless given in Writing and Signed by a duly authorised representative of thisarmy.
Please note that intellectual property laws protect all software. Software is licensed, not sold, to Customer. Unless agreed otherwise, the license for any software is contained in the EULA. Customer will be required to agree to the EULA prior to use of the software. The applicable EULA, which takes precedence, governs the use of the software. If Customer does not agree to the EULA, Customer must return the software in accordance with the Return Policy for a refund of the Fees. If Customer uses the software (or takes any other action that is described in the packaging or software as constituting Customer’s consent to the EULA), then Customer agrees to the EULAand may not be eligible for a refund or return of the software, unless otherwise allowed in the documentation accompanying the software or applicable law.
Resale and Exports
If a Customer wishes to resell or export any Goods, Customer must obtain all required consents or licences under all applicable laws and regulations, including the Export Administration Regulations of the United States of America that may affect or regulate any resale or export.
License. The Customer grants to thisarmy a worldwide, royalty-free, and non-exclusive license to reproduce, modify, adapt, and publish the Website and Content solely for the purpose of displaying, distributing and promoting the Customer’s Website. If Customer deletes a Website or Content, thisarmy will use reasonable efforts to remove it from Tank, but due to caching or references the Website or Content may not be made immediately unavailable.
Data. thisarmy is not responsible for any Website or Content.
Relationship between a Customer and a third party independent. The relationship between any Customer and any third party (including delivery of goods or services, and any other associated terms, conditions, warranties or representations) is between the Customer and the third party and is independent of thisarmy.
Website terms. A Customer may stipulate terms that apply to its Website. The terms must in no way weaken the contractual position of thisarmy.
Acceptable use and Conduct
Responsibility. Each Customer is responsible for its conduct, Website, or Content on Tank. Each Customer must ensure that its users have the correct permissions to act on Tank.
Prohibited conduct. Nothing may be unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or harm minors in any way. Do not harass, stalk, degrade, intimidate, or be hateful toward an individual or group of individuals. No Customer may impersonate any person, falsely state, or otherwise misrepresent its affiliation with any person. Nothing may be false, deceptive, misleading, deceitful, or constitute “bait and switch”. Do not infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party. Any chain letter, pyramid scheme, or advertisement that is prohibited by law, is prohibited on Tank. The advertising and provision of any illegal service or the sale of any goods that are prohibited or restricted by applicable law are prohibited. Malware or badware is prohibited. Do not negatively affect the ability of any other Customer to use Tank. Do not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through Tank. No Customer may impose an unreasonable or disproportionately large load on thisarmy’s infrastructure. Do not attempt to gain unauthorised access to Tank or engage in any activity that disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of Tank.
Keywords. You must not describe or assign keywords to your Website in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and thisarmy may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause any liability for thisarmy.
Ownership. Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of Tank are the sole property of or will vest in thisarmy or a third party licensor. All moral rights are reserved.
Trademarks. thisarmy’s logo and sub-logos, marks, and trade names are the trademarks of thisarmy and no person may use them without permission. Any other trademark or trade name that may appear on Tank or other marketing material of thisarmy is the property of its respective owner.
Restrictions. Except as expressly permitted under the Agreement, Tank may not be:
- modified, distributed, or used to make derivative works;
- rented, leased, loaned, sold or assigned;
- decompiled, reverse engineered, or copied; or
- reproduced, transferred, or distributed.
Sufficient rights. No Customer may build any Website for which it does not have sufficient rights.
Copyright infringement by a Customer. Each Customer must promptly address any written notice to it that its Website or Content infringes the copyrights or other rights of another person. If a Customer does not promptly remove or change the infringing element of the Website or Content specified in the notice, thisarmy may remove the Website or Content without any liability to any Customer.
Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.
Disclaimer of Warranties
Disclaimer. Use of Tank is at the sole responsibility and risk of each Customer. Tank is provided on an “as is” and “as available” basis. Except for the warranties given in the Agreement, thisarmy expressly disclaims all representations, warranties, or conditions of any kind, whether express or implied, including:
- any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or
- any warranties regards third party software.
- thisarmy does not warrant that Tank will meet the requirements of any Customer or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. Each Customer should keep up-to-date security software on the systems used to access Tank.
Exclusion of liability. Despite any warranty given by thisarmy, thisarmy will not be liable regards any defect arising from:
- fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow its instructions (whether oral or in writing), misuse, or alteration or repair of the Goods without thisarmy’s express prior approval;
- attachments, features or devices used on the Goods that are not supplied or approved in writing by thisarmy;
- the use of any version other than the current version of the correct operating system software.
Each Customer agrees to indemnify, defend, and hold harmless thisarmy (and its subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees) from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) arising out of or relating to its use of Tank.
Limitation of Liability
Correct faults. thisarmy will correct any fault in Tank where possible and as soon as reasonably practical and this is its entire liability regarding any fault in Tank. If this clause is held inapplicable or unenforceable, then the following clause will apply.
Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, thisarmy’s maximum liability to a Customer for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by the Customer to thisarmy for the Goods or Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
Indirect damages excluded. To the extent permitted by applicable law, in no event will thisarmy (or its personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.
Other web site, goods, or services. thisarmy is not liable for any other web site, goods, or service provided by any third party.
Discontinue Tank. The Agreement will automatically terminate if thisarmy discontinues Tank.
Breach. If a Customer:
- commits a breach of the Agreement;
- repeatedly infringes the copyrights or other rights of others;
- fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
- effects or attempts to effect a compromise or composition with its creditors; or
- is provisionally or finally liquidated or placed under judicial management;
Customer agrees that thisarmy may, to the extent permitted by applicable law and without prejudice to its rights in the Agreement or in law, deactivate or delete the Customer’s account, terminate access to or use of Tank, claim specific performance of the Agreement, or cancel the Agreement immediately on written notice and claim damages from Customer (including, any claim for any Fees already due).
Effects of termination. On the deactivation or deletion of a Customer’s account, the Agreement will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry of any Order all amounts due to thisarmy for Services rendered or Goods ordered prior to termination will become due and payable even if thisarmy has not invoiced them. Customer may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry of an Order will not affect the enforceability of the terms that are intended to operate after expiry or termination.
Forum. Any claims by thisarmy against a Customer for injunctive or equitable relief or regarding intellectual property rights may be brought in any competent court without the posting of a bond. The parties will, in the first instance, refer any other dispute arising between thisarmy and a Customer to the Customer Relationship Department of thisarmy, which will use its best endeavours to resolve the dispute. If the parties are unable to resolve a dispute, the dispute will be finally resolved by expedited arbitration in accordance with the dispute resolution procedures and rules of the Arbitration Foundation of Southern Africa in the city where thisarmy has its head office in English.
Statute of limitations. Any claim or cause of action by a Customer arising out of or related to the Agreement must (regardless of any statute or law to the contrary) be filed within 12 calendar months after the claim or cause of action arose or be forever barred.
Collection proceedings. thisarmy retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.
Notices and Domicile
Notices. All notices, authorisations, disclosures, acknowledgements, and requests must be sent by hand, prepaid registered post, courier, facsimile, or electronic mail to the addresses and numbers provided on Tank. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.
Domicile. Each party chooses its addresses and numbers provided on Tank as its domicilium citandi et executandi (its domicile for being served summons and execution levied) for all purposes.
Change of addresses and numbers. Each party may change the addresses and numbers provided on Tank.
Deemed Delivery. Notice will be deemed delivered on the date shown on the by hand, prepaid registered post, courier, facsimile or electronic mail confirmation of delivery.
Notice actually received. If a notice is actually received by a party, adequate notice will have been given.
Circumstances beyond Control
No party will be responsible for any breach of the Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, the Internet, any telecommunications systems, or any computer hardware or software.
Cession and Assignment
No Customer may delegate its duties under the Agreement or assign its rights under the Agreement, in whole or in part. thisarmy may assign the Agreement to any successor or purchaser of its business or some of its assets.
Entire Agreement. The Agreement constitutes the entire agreement between the parties in respect of the subject matter of the Agreement.
Changes. The Agreement may be changed at any time by thisarmy and where this affects the rights and obligations of a Customer, thisarmy will notify the Customer of any changes by placing a notice in a prominent place on Tank (or by email). If a Customer does not agree with the change the Customer should stop using Tank. If a Customer continues to use Tank following notification of a change to the Agreement, the changed terms will apply to the Customer.
Fact related to Tank. A certificate, signed by an administrator of Tank, of any fact related to Tank (including the version of the Terms that governs a particular Order or dispute and what content was published or functionality was available on Tank at a specific point in time) will be conclusive irrefutable proof of the correctness of the certificate’s contents.
Waiver. No granting of time or forbearance will be, or be deemed to be, a waiver of the Agreement and no waiver of any breach will operate as a waiver of any continuing or subsequent breach.
Severability. If any term is void, unenforceable, or illegal, the term will be severed and the remainder of the Agreement will have full force and effect, provided the severance does not alter the nature of the Agreement.
Governing Law and jurisdiction. The Agreement is governed by and must be interpreted under the laws of the Republic of South Africa and Customer agrees to submit to the exclusive jurisdiction of the South African courts.
Right to reference. Each Customer consents to thisarmy using its name in any marketing or sales material.