These Terms set out your rights and obligations, and those of MemoryWall (“we” or “us”), in relation to memorywall.co.za (the “Site”), and any goods or services available through, and material of any kind accessible or relating to, the Site or us (the “Services”). When we refer to “MemoryWall” in these Terms, we mean us, the Site and/or the Services, according to the context.

You must take the time to read and understand these Terms before using MemoryWall. By registering with MemoryWall, you accept that you are entering into a contract with us under these Terms. People who register for MemoryWall establish an “Account”, and become “Users”. Visitors to MemoryWall who do not become Users, but who nevertheless use the Site, affirm that they are bound by these Terms each time they access MemoryWall. You should be aware that these Terms may change from time to time as explained in detail below.

MemoryWall will only knowingly provide use to parties that can lawfully enter into and form contracts under South African law. If you are under the age of 18 you may use MemoryWall only under the supervision of a parent, or legal adult guardian who agrees to be bound by these Terms.

If we ask you to provide some information about yourself when you register for MemoryWall, you must ensure that this information is accurate and current. You may keep this information updated through your Account. Please note that we are entitled to treat anything done through a User’s Account, or by means of an email address, phone number or other communications method associated with that Account, as having been done by the User; it is up to the User to maintain the security of his/her Account. When you place an order for a Product, you will need to supply details of a payment method, such as a credit or debit card, (your “Payment Method”) and other personal details so that we may process the order for you. In the event that you supply an invalid Payment Method or a Payment Method that belongs to someone else or which you are not entitled to use, we reserve the right to suspend or terminate your Account at any time without notice. The same person may not register more than Account, including by using different contact details; if you do so, or we reasonably suspect you of doing so, we may suspend your Account(s) and use of the Services.

Important: You must ensure that the email address we hold for you is kept up-to-date and that you have full access to it – we will be sending you important messages there. So if you change your email address, you must also change it on your Account. Should you provide an invalid email address or an email address that belongs to someone else, MemoryWall may terminate your Account at any time without notice.

You should not register as a User if you are under 13 years of age.

MemoryWall provides Users with the facility to select digital images from various sources (each an “Image”), and to use those Images to create a MemoryWall product (a “Product”).

The Sources you can use for images are currently as follows:

• Images held on your Instagram account; or
• Images held on your desktop or mobile device’s “camera roll”

Where you use Images held in your Instagram account, you must connect to that Instagram account in order to create a Product.

In certain circumstances, as described below you may use Images held in a friend’s Instagram account (your “Friend”) to create a Product for your Friend. As MemoryWall evolves and changes over time, we may add Products or remove Products from our Services. We may also add new sources for your Images.

Note that there may be restrictions on the types of Product you can create using Images from certain sources, you will be informed of the restrictions during the product creation and / or purchase process.

It is the responsibility of Users to have sufficient web and device usage skills to make use of our Services.

The basics of ordering Products:

• Select from your, or your Friend’s, Instagram account, and / or from your desktop or mobile device’s “camera roll”, the Image(s) you wish to use on the Product
• Go through the online payment process
• Confirm your purchase on the Site;
• We email you an Order Confirmation;
• We manufacture the Product;
• We send you a “shipping confirmation” email;
• We send the Product to you or (in the case of a gifted Product) to your Friend.

Images and other material (including textual annotations to and comments on Images) used, accessed or transmitted by a User on, through or in connection with MemoryWall, including for the purpose of creating a Product, are treated as “User Content” for the purposes of these Terms.

Users must have the right to deal with User Content in the manner provided by our Services. You must not create a Product if you do not have the right to do so. Each User shall ensure that User Content does not:

• infringe anyone’s copyright; in particular, you must ensure that you either own the copyright in an Image that you use to create a Product or that you are fully licensed by the copyright owner to do so;
• infringe any other rights, such as a trade mark, of any person or entity or a duty owed to any person or entity, such as a duty of confidentiality;
• contravene any applicable law (including, without limitation, any criminal law) or regulation;
• include anything that is false, inaccurate, misleading, offensive, abusive, threatening or defamatory, or that might cause needless annoyance, inconvenience or distress to any person;
• misrepresent identity in any way or impersonate any person;
• include any material containing personally identifying information about another person, such as their real name, address, phone number, or email address, except with the written approval of that person;
• contain material which is pornographic, obscene, indecent or offensive, which promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or that may incite hatred or violence against any person or group;
• harass, upset, embarrass, alarm or annoy any person;
• give the impression that it emanates from us, if this is not the case; or
• advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.

The above are our Content Rules.
Although we prohibit breaches of our Content Rules, we cannot control and do not monitor or pre-screen the use of our Site. It is possible that Images or other User Content may be used in a way which contravenes our Content Rules. We are not responsible for such Images or User Content, but if you become aware of any such infringing use of Images or User Content please contact us by emailing us at [email protected]

We may without notice prevent any use of Services (including purchase of Products) which includes any Image or User Content that contravenes our Content Rules.

In using this Website, you agree to not:

• upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked websites;
• access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution;
• disrupt or interfere with any other user’s enjoyment of the Site or affiliated or linked websites;
• Upon uploading Content, you acknowledge that MemoryWall may review your Content for adherence to our guidelines and compliance with the Terms set forth in this agreement. Without limiting the foregoing, MemoryWall and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable to MemoryWall.

You acknowledge and agree that MemoryWall may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:

1. comply with legal process;
2. enforce the Agreement;
3. respond to claims that any Content violates the rights of third-parties; or
4. protect the rights, property, or personal safety of MemoryWall, its users and the public.

You understand that the technical processing and operation of the Site, including your Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connection networks or devices.

You acknowledge and agree that you will use this Site and any products ordered on this Site at all times in accordance with all applicable laws, statutes, regulations and ordinances of the Republic of South Africa and will not take any action that harms or violates the rights of any person or entity.

Prices for products on MemoryWall are described on our Site and incorporated into these Terms by reference. Prices and products may change at MemoryWall’s discretion.

A contract between a User and MemoryWall for the purchase of a Product is created as follows:

• The User places the order for a Product on the Site by pressing the Pay By Card confirmation button at the end of the checkout process:
  • By confirming your order, you are agreeing to purchase the product you have selected;
  • At this point, we take payment for your order;
  • We will send to you an Order Confirmation email detailing your order for the Product and other information we must provide to you;
  • When the Product you have ordered is shipped to you or your Friend, we will send you a “shipping confirmation” email;
  • The acceptance of your order and the completion of the contract between you and MemoryWall will occur when the Product you have ordered is dispatched (shipped), unless we have notified you that we do not accept your order.
• Note that MemoryWall may reject an order in certain circumstances, namely:
  • Your order breaching the requirements of these Terms;
  • The use of Images which infringe the Content Rules;
  • The Product you order being unavailable;
  • Our inability to obtain authorisation for your payment; or
  • A relevant pricing or Product description error being identified.

If your order is rejected, we will contact you to confirm this and reverse the payment you have made for that order.

Please note that, as Products are personalised, and as provided for in the Consumer Protection Act, you do not have any right to cancel your contract to buy them and return them to us. However, you do have the right to reject any Product which is faulty or not as described in our specifications.

Any time periods or dates stated for delivery of Products are estimates only. We rely upon third party delivery services, and we do not accept liability for any failure to deliver Products within specified time periods or by specified dates.

If any additional taxes, such as but not limited to Sales Tax will be charged on the final value of your order in the country to which the order is to be delivered, such taxes will be for your sole account.

Products are sold on a duty-unpaid basis. The User may be required to pay import duty or another customs entry fee prior to or on delivery of a Product. Other taxes, fees or levies may apply according to local legislation: it is the User’s responsibility to check these details before placing an order for delivery outside the Republic of South Africa.

You must comply with the processes and terms and conditions of our online payment gateway service provider in order to make a purchase of a Product. We cannot accept, and hereby exclude to the fullest extent permitted by applicable law, any liability arising out of or in connection with your use of our online payment gateway service provider.

You undertake that all of the details which you provide to us for the purposes of any order you make for a Product and its delivery will be correct and that your chosen method of payment is your property and has sufficient available funds to cover the cost of your order. We reserve the right to access your online payment account details where required for the purpose of facilitating refunds and deal with User queries.

The standard method of delivery for Products is regular postage; Users may pay extra for speedier delivery. If you can see any sign of damage to the exterior of the envelope or parcel containing a Product, please include a reference to the damage when signing for the delivery. We reserve the right to make delivery of Products by installments.

If you wrongfully fail to take delivery of an ordered Product then we shall be under no obligation to refund the price. If delivery is refused or returned due to a defective address, you will be charged a re-delivery fee.

Complaints or claims concerning Products must be notified to us within 14 days of the receipt of the relevant Product, or in the case of non-delivery, in a reasonable time after the relevant Product was expected to arrive.

You may choose to cancel your Account at any time by 30 days advance notice by email to us at this Email address: [email protected] You may be asked to provide further proof that you are the holder of the Account.

Further, we are entitled to treat an Account as lapsed if its User has not logged in to the Account for twelve months or more.

If your Account is terminated because you have breached this Agreement (including a breach of our Content Rules), we may prohibit you from establishing another Account.

Where an Account is cancelled, lapses or is terminated, we are entitled to close the Account. You will nevertheless remain responsible for performing your obligations under these Terms, and the rights granted to us under these Terms shall not be terminated as a result.

This Clause governs gift certificates issued by MemoryWall for use on the Site:

• MemoryWall gift certificates must be redeemed on the Site towards the purchase of eligible Products;
• Gift certificates are available for any amount between a minimum Order of $15 and a maximum of $250.00;
• Gift certificates cannot be used to pay for gift certificates;
• Gift certificates have no cash equivalent or redemption value and are not transferable or assignable;
• Any unused balance on a gift certificate will be available to put towards a future purchase on MemoryWall. No refunds or change will be given in cash for any unused balances;
• If an order exceeds the amount of the gift certificate, the balance must be paid online through your credit card;
• Gift certificates and unused portions of gift certificates expire one year from the original date of issue of the Gift certificate;
• One or more gift certificates can be redeemed against an order;
• Gift certificates cannot be combined with any promotional codes or offers;
• Our gift certificates are like cash in the sense that we are not responsible if a gift certificate is lost, stolen, destroyed or used without permission.

Our Privacy Policy governs all users of MemoryWall. By using or accessing MemoryWall, you give your consent to the content of that policy. If you do not wish your personal data to be handled in that way, then you must not use MemoryWall.

Users must not use the Services in connection with the sending of any unsolicited messages, or to harvest or otherwise collect information about Users, including email addresses, without their express consent. No User may use any information regarding other Users that is accessible through the Services except as expressly permitted by these Terms.

You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Site, use of the Site or access to the Site without MemoryWall ‘s express written consent.

We reserve the right at any time and without notice (a) to suspend or terminate your ability to access MemoryWall or to use of all of part of the Services, (b) to cease providing access via MemoryWall to Images or other User Content, and (c) to take technical and/or legal steps to prevent Users from using MemoryWall if they appear to us to be in breach of any provision of these Terms. Should we do so, you acknowledge that we shall not incur any liability to you or to any other person. In addition, we are entitled to suspend provision of all or part the Services, or the availability of User Content to a User, at any time if we are obliged or advised to comply with an order, instruction or request of any limb of government, or any regulator, court or other competent authority. MemoryWall respects the intellectual property rights of others and we require our users to do the same. We may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others. In appropriate circumstances and at our discretion, we may require removal of the user’s content from our site and, if the user continues to infringe on your rights (or infringes the rights of others) terminate the user’s access to our services. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright/ trademark interest.

We use reasonable care and skill to provide MemoryWall in accordance with our specifications for MemoryWall but:

• the Services are provided “as is”; and
• we cannot and do not guarantee that MemoryWall or the Services will meet your requirements.

We shall have no obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise, save as expressly provided in these Terms.

Nothing in these Terms excludes or restricts our liability for fraudulent misrepresentation or for death or personal injury resulting from our negligence, nor our contractual obligations in respect of Products we agree to supply following our acceptance of your order.

We, our agents, directors, officers, shareholders, employees and subcontractors will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:

• for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption; or
• for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising.

Our aggregate liability in respect of any individual Product or order for a Product shall be limited to the price paid or payable by you to us for that Product.

Except as expressly stated elsewhere in these Terms, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law.

For the avoidance of doubt, MemoryWall will not have liability to you or any other person in respect of User Content.

We will not be liable for any failure to perform our obligations under these Terms caused by matters beyond our reasonable control.

The provisions of this Clause shall survive the termination or expiry of these Terms.

You acknowledge and agree that you will not use any product ordered from MemoryWall.com in a way that would be damaging to MemoryWall’s public reputation or that of its employees, shareholders, licensors, or solution partners. Additionally, you acknowledge that if you choose to display any product ordered from MemoryWall in a public setting, including on the Internet, you shall not do so in a way which disparages MemoryWall, employees, shareholders or partners.

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS SITE AND THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MemoryWall AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

MemoryWall DOES NOT MAKE ANY WARRANTY THAT (A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR (B) THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR (D) THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU AGREE THAT MemoryWall SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH THE SITE OR ANY CONTENT CONTAINED THEREIN INCLUDING BUT NOT LIMITED TO LOSS OF DATA FROM DELAYS, NONDELIVERIES OF CONTENT OR EMAIL, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OF CONTENT OR EMAIL, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF MemoryWall, ITS AFFILIATES, ITS LICENSORS, OR A USER’S OWNERRORS AND/OR OMISSIONS. YOU EXPRESSLY AGREE THAT USE OF THIS SERVICE, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR BUSINESS, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, DATA AND/OR SOFTWARE. YOU ACKNOWLEDGE THAT MemoryWall DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THIS SERVICE. EXCEPT AS OTHERWISE AGREED IN WRITING, MemoryWall AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THIS SITE. YOU ACKNOWLEDGE THAT MemoryWall MAKES NO WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THIS SITE WILL BE MAINTAINED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MemoryWall OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

We reserve the right to assign these Terms, and to assign or subcontract any or all of our rights and obligations under these Terms, but will not do so in such a way as to reduce any guarantees you are given under these Terms. You may not without the written consent of MemoryWall assign or dispose of these Terms or any of your rights and obligations under it.

If any provision of these Terms of Use is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same intent as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired.

These Terms are intended to contain your entire agreement with us relating to your use of and access to MemoryWall; we believe them to be fair and reasonable. They replace all earlier agreements and understandings with you relating to MemoryWall

These Terms shall be governed by and construed in accordance with the laws of the Republic of South Africa, without resort to its conflict of law provisions. Any dispute with regard to this Agreement shall be submitted to any court of competent jurisdiction in the Republic of South Africa.

We reserve the right to change these Terms from time to time, and post the new version on MemoryWall. If you do not wish to be governed by the new version of these Terms, you must cease to use the Services and MemoryWall. For the avoidance of doubt, we will not have any liability to you in that event.

We are MemoryWall (Pty) Limited, a company registered in the Republic of South Africa under registration number 2014/101596/07, with our registered address situated at 178 Frederick Drive, Northcliff South Africa. We will send our notices to you by email to the email address specified in your Account.