WAPPoint Loyalty Merchant Terms & Conditions
By applying to join the Loyalty Programme, or by accessing or using the platforms or portal for the Applications, the Business agrees that it has read, understood and agrees to be bound by the Loyalty Programme’s Merchant terms and conditions as set out herein. Once the Business’s application to join the Loyalty Programme is accepted, these terms and conditions constitute the agreement (“the Agreement”) between WAPPoint Loyalty Company (Pty) Ltd Registration no. xxxx/xxxxxxx/07 (“WAPPoint”) and the Business, and accordingly apply to the Business which is engaging with for the provision of the Loyalty Programme and the Services accessed by Customers through WAPPoint’s Smart phone Loyalty Programme application (“the Customer App”).
In the event of a dispute about the content of these terms and conditions that were applicable at the time of the Business being admitted to membership of the Loyalty Programme, a certificate of the Company’s Auditors in regard thereto shall (in the absence of manifest error which is proven by the objecting Party) be prima facie evidence of the terms and conditions applicable at the time of the Business being admitted to membership of the Loyalty Programme.
In this Agreement –
2.1.1 clause headings are for convenience and reference only and shall not be used in its interpretation nor to modify or amplify its terms or any clause;
2.1.2 unless the context clearly indicates a contrary intention –
2.1.3 an expression which denotes –
18.104.22.168 any gender includes the other genders;
22.214.171.124 a natural person includes a juristic person and vice versa; and
126.96.36.199 the singular includes the plural and vice versa;
2.2 the following terms shall bear the meaning assigned to them below and cognate expressions shall bear corresponding meanings, namely –
2.2.1 Agreement means this agreement together with all Annexures thereto;
2.2.2 Administration managing or overseeing (or procuring the managing or overseeing) of any and all loyalty programme administration and Customer claims administration functions pertaining to the Loyalty Programme;
2.2.3 Annexure means any or all of the annexures to this Agreement, and/or any other annexure referenced to this Agreement which may at any time hereafter be signed by the Parties, whether in substitution or addition to the existing annexure(s).
2.2.4 Applications means the Customer App and the Business App
2.2.5 Associate means any associate of WAPPoint or a WAPPoint Subsidiary from time who is approved or appointed by WAPPoint to assist in the propagation or fulfilment of the Loyalty Programme;
2.2.6 Business means a merchant which is engaging with WAPPoint for the provision of the Loyalty Programme and the Services, which are to be to be accessed by Customers through the Customer App.
2.2.7 Business App means WAPPoint’s Smart phone loyalty programme application developed and deployed to Businesses so that they may participate in the Loyalty Programme;
2.2.8 Business Day means any day other than a Saturday, Sunday or South African official public holiday;
2.2.9 Claims means any claim or claims made under the Loyalty Programme by or on behalf of a Customer;
2.2.10 Confidential Information means all information or data relating to this Agreement or the Loyalty Programme (including without limitation policy documentation, sales guides, practices and procedures, details of benefits, loyalty rewards, fees and rates, and other documents in connection with the transaction between WAPPoint and the Business or between the Business and the Customer in regard to the Loyalty Programme), whether written or oral or otherwise and regardless of the manner in which such information or data is furnished by any of the Parties to the other or acquired by either of the Parties;
2.2.11 Customers means customers of the Business from time to time;
2.2.12 Customer App means WAPPoint’s Smart phone loyalty programme application developed and deployed to Customers so that they may participate in the Loyalty Programme;
2.2.13 Consumer Protection Act means the Consumer Protection Act 68 of 2008;
2.2.14 Effective Date means the first of the month following the month in which both the Agreement has been signed by both parties and all fees then due by the Business have been paid.
2.2.15 FICA means the Financial Intelligence Centre Act no 38 of 2001;
2.2.16 Loyalty Programme means the loyalty programme which is supplied or marketed or propagated by WAPPoint for the Business and the Customers, in the form and the content determined by WAPPoint and which provides loyalty reward offers by the Business to its Customers;
2.2.17 Parties means WAPPoint and the Business, and Party shall as the context requires be a reference to either one of them;
2.2.18 POPI means the Protection Of Personal Information Act 4 of 2013;
2.2.19 Rewards means rewards made available by the Business to Customer under the terms of or in regard to the Loyalty programme
2.2.20 Relationship Event means if either WAPPoint or the Business is placed in provisional or final liquidation, or compromises or attempts to compromise with any of its creditors, or negotiate with any of its creditors for reorganisation, arrangement, readjustment of debt, dissolution, liquidation or similar matters, or suffers any default judgment or arbitration award against it to remain unsatisfied for more than seven days, or is refused rescission within seven days of any default judgment, or fails to pay any amount on due date, or commits any act of insolvency as defined in the Insolvency Act 24 of 1936, or commits an act contemplated in section 9 of the 5th Schedule to the Companies Act 2008 which in turn refers to in section 344 of the Companies Act, 1973, and/or section 68 of the Close Corporations Act, 1984, as the case may be, or surrenders its estate, or is sequestrated, goes into liquidation (voluntarily or compulsorily) or business rescue as envisaged in the Companies Act 2008, or if the Business fails to pay timeously any amount due in terms hereof; or if either WAPPoint or the Business or anyone acting on its behalf commits any fraudulent or other criminal act or illegal conduct, or if WAPPoint or the Business becomes unable or ceases, for any reason whatsoever, to conduct its normal line of business, or any material part thereof, in an ordinary and regular manner;
2.2.21 Registered Member means a Customer who has downloaded the Customer App and who participates in the Loyalty Programme of the Business;
2.2.22 Services means the Loyalty Programme services detailed in this Agreement, which are to be provided by WAPPoint to the Business or the Customers as the case may be;
2.2.23 Set Up Fee means the initial set up fee charged by WAPPoint to the Business for the set up of the Loyalty Programme for the Business;
2.2.24 Subscription Fees means the fees from time to time charged by WAPPoint to the Business for the administration of the Loyalty Programme for the Business;
2.2.25 Effective Date means the date of commencement of this Agreement, as set out in the certificate of membership of the Loyalty Programme issued by WAPPoint to the Merchant.;
2.2.26 Sales Support means the ongoing provision of product training, reviews, awareness creation, target setting, query resolution and structured visiting of the Business in order to facilitate, enable and enhance the sales of the Loyalty Programme;
2.2.27 VAT means value added tax payable in terms of the Value-added Tax Act no 89 of 1991;
2.2.28 Working hours means from 08h00 to 17h00 on any Business Day;
2.2.29 WAPPoint means WAPPoint Loyalty programme Company (Pty) Ltd Registration no. xxxx/xxxxxx/07
2.2.30 WAPPoint Group means WAPPoint and WAPPoint Subsidiaries or Associates from time to time;
2.2.31 WAPPoint Procedures means the standard WAPPoint or WAPPoint Group approved procedures provided by WAPPoint or a member of the WAPPoint Group from time to time and relating to this Agreement or the Loyalty Programme in any way whatsoever;
2.2.32 WAPPoint Subsidiary means any subsidiary from time to time of WAPPoint, including without limitation Motorite, and SMART;
2.2.33 when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding day which is a Business Day;
2.2.34 if any provision that is contained only in this Interpretation clause 2 contains a substantive provision conferring rights or imposing obligations on any Party, effect shall nevertheless be given to such provision as if it were a substantive provision in the body of this Agreement;
2.2.35 any word or phrase defined in the cover sheet and/or in the body of this Agreement as opposed to this clause 2 shall have the meaning assigned to it in such definition throughout this Agreement;
2.2.36 if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
2.2.37 expressions defined in this Agreement shall bear the same meanings in any annexures to this Agreement which do not themselves contain their own conflicting definitions;
2.2.38 if any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in this Interpretation clause;
2.2.39 the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
2.2.40 the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
2.2.41 any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be amended, varied, novated or supplemented; and
2.2.42 the words “include” and “including” mean “include without limitation” and “including without limitation”; and the use of include or including followed by specific example/s shall not be construed as limiting the meaning of the general wording preceding it.
3. PERIOD OF AGREEMENT
This Agreement will commence on the Effective Date and subject to the terms and conditions hereof will remain in force for a minimum period of 12 months reckoned from the Effective Date. Thereafter the Agreement will continue indefinitely until terminated, either on 1 (one) calendar months’ written notice given by one Party to the other, or until terminated as otherwise provided for herein.
4. NO PARTNERSHIP JOINT VENTURE OR AGENCY
Nothing contained in this Agreement shall be interpreted so as to constitute a partnership, joint venture, agency or the like between the Parties and no Party shall be entitled to authorise, represent or to hold out to any third Party that the relationship between the Parties is that of a partnership, joint venture or the like.
5. SETTING UP AN ACCOUNT
The Business is required to create a Loyalty Programme account according to the form and protocols and content requirements provided by WAPPoint, in order to join the Loyalty Programme and be provided with the Services.
6.1 Once the Business has opened a Loyalty Programme account with WAPPoint as envisaged in clause 5, and subject to the payment of the Set Up and Subscription Fees, WAPPoint shall provide the Services to the Business in order that the Business may establish, deploy and provide the Loyalty Programme to Customers who are registered users of the Customer App.
6.2 The Business shall pay an initial Set Up And Subscription Fee (which may be paid by credit card, EFT or debit order) and there after shall pay an ongoing monthly subscription fee by debit order or credit card charge or payment, in the amounts detailed in the pricing schedule or application form annexed or referenced hereto.
6.3 The ongoing monthly subscription fee may be adjusted from time to time by WAPPoint in order to allow for the annualised effects of inflation (all items) as published by StatsSA; and, to make adjustments for fluctuations in the Rand/UK Sterling exchange rate since WAPPoint is liable to make licensing payments in sterling currency to its application developers.
6.4 The Loyalty Programme will be deployed and become live on the Business App for the Business provided that the Business has established its Loyalty Programme account and paid the initial Set Up and Subscription Fees. The Loyalty Programme will remain available to the Business provide the Business on an ongoing basis complies with the requirements of this Agreement and in particular continues timeously to pay any such fees which may become due after the initial set up and deployment of the Loyalty Programme.
6.5 WAPPoint reserves the right under the Loyalty Programme to individually charge for multiple offers through the same Business listing. Unless otherwise agreed, such offers shall be limited to two promotions per month. Extra promotions shall chargeable at rates agreed from time to time between the Business and WAPPoint.
6.6 WAPPoint shall be entitled at any time without notifying the Business, to make changes to the content of the Applications which it deems may be necessary to comply with any applicable security or statutory requirements or for the purpose of general improvements.
6.7 The Set Up And Subscription Fees are charged in Rand value unless stated otherwise, and if VAT is applicable it will be added to such fees at the then prescribed VAT rate.
7. ALTERATION OF LOYALTY PROGRAMME
WAPPoint may by notice of one month vary the Loyalty Programme terms and conditions from time to time. If a material change to the terms and conditions is made, the Loyalty Programme will notify the Business by placing a prominent notice on the portal identifying the change, or by notifying the Business of the change via email. In the event of such a change being adverse to the interests of the Business, then notwithstanding the terms of clause 3 and whether or not the Minimum Period is still applicable, the Business will be entitled to terminate its participation in the Loyalty Programme by giving written notice to such effect prior to the expiry of the said one month notice given by WAPPoint; but if the Business does not serve such notice then the terms and conditions of this Agreement will continue to apply.
8. BUSINESS OFFER REWARDS PROCESS
The Business undertakes and agrees that –
8.1 It shall from time to time decide and structure the details of the offer and reward for its Customers that will be provided by the Business under the Loyalty programme.
8.2 It shall co-operate with and as necessary assist WAPPoint to place the offer and reward on the Registered Members smartphone (Android and IOS) and also will prominently promote the Loyalty Programme with its offer and reward structure, at or near the point of sale or the place where the payment mechanism used by the Business’s store or retail outlet, is located.
8.3 Each Registered Member will be entitled in accordance with the offer and reward rules of the Loyalty Programme, to receive a ‘Stamp’ or points on the Applications for each Loyalty Programme qualifying purchase (whether by value, quantity or visit, as according to the said rules).
8.4 It shall provide the Registered Member with the stipulated reward upon his achieving the required number of stamps or points prescribed by the Business and thereafter claiming his reward.
8.5 Any dispute regarding the offer and reward aspects of the loyalty programme will be the responsibility of the Business (and not of WAPPoint) and shall be dealt with between the Business and the Customer.
8.6 WAPPoint is not responsible to Customers and shall have no liability to the Business or the Customers, with respect to the rewards offered and to be supplied under the Loyalty Programme.
9. BUSINESS COMMUNICATION & DATA
The Parties agree that –
9.1 Any electronic communication with Registered Members must be done through the Applications website or electronic media platforms or portal or with a method and process previously agreed with Loyalty Programme.
9.2 WAPPoint owns the rights to the data of Registered Members including their contact details and transactional data records and will not share such information unless WAPPoint agrees to do so (but subject to the requirements of any applicable law and in particular the law regarding Customer consent) or ordered to do so by a competent court of law.
9.3 The Business shall have access to their pool of Customers via electronic push notification and will be permitted free of charge to make two such notifications per month to the Customers. Any additional notification will be by agreement between the Parties and will be charged at a separate fee as agreed from time to time.
10. LOYALTY PROGRAMME OBLIGATIONS OF WAPPOINT
10.1 WAPPoint will use all reasonable endeavours to enable its Registered Members the facility for viewing the Business’s Loyalty Programme on the Customer App.
10.2 WAPPoint will use its reasonable endeavours to publish the Business’s logo and Loyalty Programme to Customer App users.
10.3 WAPPoint will throughout the duration of the Agreement continue to use all reasonable endeavours to support and maintain the Applications and the administration of the Loyalty Programme so as to ensure that the Loyalty Programme may continue to be deployed by the Business until the termination of this Agreement or as otherwise agreed.
11. THE BUSINESS GENERAL OBLIGATIONS
The Business hereby undertakes and warrants to WAPPoint that:
11.1 the Business will use all reasonable precautions against access to the Applications through the portal by any unauthorised persons.
11.2 any information supplied by the Business is accurate, complete and true;
11.3 the Business has authorisation to upload, post, transmit, share, store or otherwise make available to WAPPoint any and all Data provided to WAPPoint or obtained from Customers.
11.4 each Loyalty Reward programme offer and reward is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to advertising as may be appropriate;
11.5 no Loyalty reward offer contains any data, image or other material which –
11.5.1 is offensive, obscene or indecent, or capable of being resolved into obscene or indecent images or material;
11.5.2 is defamatory, threatening or racially, ethnically or otherwise objectionable;
11.5.3 is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
11.5.4 infringes the rights (including, without limitation, the intellectual property rights) of another person.
11.6 it will provide WAPPoint, in such a format as WAPPoint may request, any information, design work, artwork and logos necessary to enable WAPPoint to provide the Services and also to utilise the brand and logo of the Business in the deployment of the Loyalty Programme and publishing the Business on the applications.
11.7 it accepts that their details will be removed from the Applications after termination of the contract or alternatively 15 days after non-payment of any Subscription Fee.
11.8 It will ensure that the Business and each and every employee, representative or other person acting for the Business, complies strictly with and fulfils the requirements of this Agreement, and also the requirements of all law applicable to the performance of its obligations in terms of this Agreement (including without limitation the laws relating to customer privacy such as POPI, with which the Business confirms it is fully knowledgeable and well informed).
12. INTELLECTUAL PROPERTY
12.1 All intellectual property rights (including future copyright) in the formation and content of the Applications and other material appearing on the Applications vests in and is the exclusive property of WAPPoint, its principals, assigns and licensors.
13.1 The Parties shall hold, maintain and treat as confidential and secret any and all Confidential Information and shall refrain from divulging or disclosing such Confidential Information to any other person or Party whatsoever, in any form or manner whatsoever, either directly or indirectly; and shall refrain from any duplication, reproduction or copying any of the Confidential Information and from retaining any reproduction of the Confidential Information, unless specifically authorised to do so by the prior written consent of the disclosing Party; and then only in accordance with the terms so authorised.
13.2 However this clause shall not prevent disclosure, which is made –
13.3 to a public authority or a regulatory body where it is material and has been formally requested by that authority or body for a lawful purpose; or
13.4 to a court of law in any legal proceedings.
For clients who fall within the thresholds of the CPA, the following will apply as clause 14. For clients who fall outside the thresholds of the CPA, see below.
Subject to the overriding requirements of any applicable law and in particular the Consumer Protection Act –
14.1 While WAPPoint will attempt to verify a Registered Member’s details, it does not guarantee the truth or accuracy of such details;
14.2 WAPPoint accepts no responsibility or liability as to the suitability or otherwise of Registered Users;
14.3 WAPPoint does not accept liability for –
14.3.1 any loss of copy, artwork, photographs, data or other materials that the Business uploads or supplies to WAPPoint;
14.3.2 any mistakes or errors whatsoever that arise during the course of publication of any advertisement or any loss of information or data or any damage thereto in each case as a result of circumstances beyond its reasonable control or which arise as a result of the acts or omissions of the Business;
14.4 the Business agrees to indemnify WAPPoint and its partners, directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partly, directly or indirectly, from the use of the Applications.
14.5 the Business indemnifies WAPPoint in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by WAPPoint (including, but not limited to consequential loss, economic loss and all legal costs and disbursements) and caused by the Business and/or any wilful, illegal or negligent act or omission by the Business.
For clients who fall outside the thresholds of the CPA, the following clauses will apply as clause 14:
14.6 While WAPPoint will attempt to verify a Registered Member’s details, it does not guarantee the truth or accuracy of such details;
14.7 WAPPoint accepts no responsibility or liability as to the suitability or otherwise of Registered Users;
14.8 WAPPoint does not accept liability for –
14.8.1 any loss of copy, artwork, photographs, data or other materials that the Business uploads or supplies to WAPPoint;
14.8.2 any mistakes or errors whatsoever that arise during the course of publication of any advertisement or any loss of information or data or any damage thereto;
14.9 the Business agrees to indemnify WAPPoint and its partners, directors, employees and agents against all claims, demands, proceedings and other liability exceeding the value of one month’s Subscription Fees and which arise wholly or partly, directly or indirectly, from the use by the Business or Customers of the Applications or the deployment of the Loyalty Programme.
14.10 the Business indemnifies WAPPoint fully and completely in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by WAPPoint (including, but not limited to consequential loss, economic loss and all legal costs and disbursements) and caused by the Business and/or any wilful, illegal or negligent act or omission by the Business.
15.1 Each of the Parties undertakes to inform the other of the occurrence of a Relationship Event relating to it.
15.2 Without limiting in any way the rights of either Party in this Agreement, and save where provided differently in this Agreement, should either Party commit any irremediable breach of any material term of this Agreement, or if a Relationship Event (which shall be deemed to be a material breach) occurs, or if either Party commits a material breach of any of the remediable terms, conditions or obligations of this Agreement, and fails to remedy such breach within ten Business Days of receipt of written notice of such non-payment or breach; then in any of the aforegoing events the aggrieved Party shall be entitled (without prejudice to any of the other rights which it may have in law) forthwith and without further notice to cancel this Agreement and/or any other agreements it may have with the defaulting Party, and recover such damages and costs as it has sustained or incurred; and/or to set off any amounts that may be due and payable by it to the defaulting Party from whatever cause.
For clients who fall within the thresholds of the CPA, the following clause will apply. For clients who fall outside the thresholds of the CPA, see below
16.1 The Parties hereby consent and submit to the jurisdiction of the Magistrate’s Court having jurisdiction over their persons in respect of all proceedings connected with this Agreement, notwithstanding that the amount claimed or the value of the matter in dispute exceeds such jurisdiction: Provided that neither Party shall be obliged to institute action in the Magistrate’s Court.
16.2 Notwithstanding the provisions of clause 14.1 either Party shall be entitled to institute all or any proceedings in connection with this Agreement in the High Court of South Africa and the Parties hereby consent and submit to the jurisdiction of that court and agree that any costs awarded be paid in accordance with the High Court scale.
For clients who fall outside the thresholds of the CPA, the following clauses will apply as clause 17:
17. DISPUTE RESOLUTION
The Parties hereby agree that:
17.1 All disputes arising from or in connection with this agreement shall be finally resolved by an arbitrator/s (’Arbitrator or Arbitrators) appointed as set out hereunder, in accordance with the rules (as modified by the terms of this clause) for Expedited Arbitration of the Arbitration Foundation of Southern Africa (“AFSA”). There shall however be no right of appeal as provided for in the aforesaid rules.
17.2 Each Party to this agreement:
17.2.1 agrees that the other Party may request and initiate an arbitration (‘Arbitration’) in the event of a dispute not being settled within seven days of written notice to the other Party of such dispute existing;
17.2.2 expressly consents to any Arbitration in terms of the aforesaid rules being conducted as a matter of urgency, and in any event agrees to the Arbitration being held and concluded within forty days from the date of an Arbitration being requested by either Party; to which end at the request of either Party, the Arbitration shall be conducted without the presence of external legal advisors, and also at the request of either Party the Arbitrator shall not apply the rules of procedure of any court but shall devise and set out a procedure which will facilitate and enable the conclusion of the Arbitration within the said forty days;
17.2.3 irrevocably authorises the other to apply on behalf of all Parties to such dispute in writing for any such Arbitration to be conducted on an urgent basis.
17.2.4 Agrees and undertakes to lodge timeously the security required by the Arbitrator for the Arbitration, failing which the defaulting Party shall be deemed to have lost the arbitration and shall be liable to comply forthwith with the award of the arbitrator thereafter.
17.3 The Arbitrator shall be, if the matter in dispute is principally –
17.3.1 a legal matter, a practising advocate or attorney or retired judge of Gauteng of at least fifteen years’ standing;
17.3.2 an accounting matter, a practising chartered accountant of Gauteng of at least fifteen years’ standing;
17.3.3 any other matter, any independent person,agreed upon between the Parties to the dispute.
17.4 Should the Parties to the dispute fail to agree whether the dispute is principally a legal, accounting or other matter within seven days after the arbitration is demanded, the matter shall be deemed to be a legal matter.
17.5 Should the Parties fail to agree on an arbitrator within seven days after the giving of notice, any of the Parties shall be entitled to request the head for the time being of the Gauteng Law Society to make the appointment during the ensuing seven day period, and the head for the time being of the Gauteng Law Society, in making the appointment, shall have regard to the nature of the dispute and the Parties’ requirement for a speedy arbitration, and if equitable shall give preference to nominees of the Parties.
17.6 The arbitration shall take place at a venue in Johannesburg (the exact location of which is agreed to by the Parties or determined by the Arbitrator) with only the Parties (each represented by a maximum of two persons including any external legal advisors if allowed) being present.
17.7 Subject to the terms hereof and the overriding rights of the Arbitrator using the Expedited Rules of AFSA as modified by the terms hereof, the arbitration shall be determined in accordance with the provisions of South African law.
17.8 The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court at the instance of any of the Parties to the dispute.
17.9 The Parties agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of a court order
17.10 The provisions of this clause –
17.10.1 constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom; and
17.10.2 are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.
17.11 The Parties agree that the written demand by any Party in that the dispute be submitted to arbitration, is deemed to be a legal process for the purpose of interruption of extinctive prescription in terms of the Prescription Act, 1969 (68 of 1969).
18. COSTS AND EXPENSES
Each Party shall bear its costs and expenses incurred in connection with the preparation of this Agreement, and any securities relating thereto. Furthermore all legal costs as between attorney and his own client charges and disbursements and fees of a like nature incurred in successfully enforcing or defending any of the provisions of this Agreement, or any claim hereunder, shall be for the account of the defaulting Party and payable on demand.
19. APPLICABLE LAW
This Agreement shall in all respects be governed by and construed in accordance with the law of the Republic of South Africa, and all disputes, actions and other matters in connection therewith shall be determined in accordance with such law
20.1 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective if –
20.1.1 sent by email or fax and thereafter a copy delivered in writing to the other Party in accordance with clause 19.1.2 or 19.1.3; or
20.1.2 it was in writing and delivered by hand during business hours to an apparently responsible employee or representative of the other Party and signed for by that person, in which case it shall be presumed to have been received on the date of delivery; provided further that any notice so delivered after business hours or on a day which is not a Business Day, will be presumed to have been received on the following Business Day; or
20.1.3 it has been sent by pre-paid registered post, in which case it shall be deemed to have been received by the addressee within 7 (seven) Business Days from the date of dispatch.
20.2 Notwithstanding the above, any notice given in writing and proved to have actually been received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the terms of clause 19.1.2 or 19.1.3.
20.3 Any Party may by notice to any other Party change the physical address chosen as its domicilium to another physical address in the Republic of South Africa, provided that the change shall become effective vis-à-vis the addressee only after the receipt of the notice by the addressee.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and any amendment, addition or alteration to the provisions hereof shall only be deemed to be of force and effect if such amendment, addition or alteration is reduced to writing and signed by the Parties.
21. RELAXATION OR INDULGENCE
No relaxation or indulgence granted by either Party shall be deemed to be a waiver of their rights in terms hereof, nor shall any such relaxation or indulgence be deemed to be a novation or waiver of the terms and conditions of this Agreement.
For clients who fall within the thresholds of the CPA, the following clause 23 shall apply. For clients who fall outside the thresholds of the CPA, the following clause 23 shall not apply
23. RIGHT TO COOLING-OFF PERIOD AFTER DIRECT MARKETING
If this Agreement is concluded as a result of a direct approach either in person or by mail or electronic communication by WAPPoint then the Business shall be entitled to cancel this Agreement by giving written notice within 5 (five) business days after the date of conclusion of this Agreement.
24. NO CESSION, ASSIGNMENTS OR DELEGATION
This Agreement and all rights and obligations under it are and shall remain personal to the Parties, and neither Party shall cede, assign or delegate any of its rights or obligations in terms of this Agreement without the prior written consent of the other.
If any term of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that will not affect the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or the legality, validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
WAPPoint values the importance of protecting your information in accordance with the requirements of South African law. Information means all information about you which is provided or made available to WAPPoint through use of the Applications, the WAPPoint website or the internet. This may include information such as company registration details, email address, contact details, and in the case of natural persons, name and surname, age, marital status, identity number, date of birth, and the like.
We will comply with legal requirements regarding the use and protection of your information and will take all reasonable steps to protect your information from loss, misuse or unauthorised alteration. The information we maintain concerning you is stored in protected databases to ensure the privacy and confidentiality of that information. However, please note that due to the nature of the internet WAPPoint cannot guarantee the security of any information that you disclose online.
When you use the online services provided by us, you will be given a user name and password. You must always keep this information secret and ensure that it is not disclosed to anyone.
WAPPoint will use your information only as appropriate in the normal course of business. WAPPoint does not sell information to third parties for independent use. However subject to the requirements of applicable law and your right to opt out at any time, WAPPoint may use or share your information with other entities in order to offer you products or services via post, telephone, email, mobile phone or other means; and to verify your information against any other sources or databases, or share information that it may have concerning you with other people or companies who have a valid reason to verify or share in that information. Accordingly, subject to the requirements of applicable law and your right to opt out at any time, you hereby waive your right to privacy concerning your information.
We will also disclose your information when required to do so by any regulatory authority or to comply with any regulation passed under relevant legislation, or any legal process necessary to protect and defend WAPPoint’ s rights and property (including WAPPoint’s intellectual property), or when you have authorised WAPPoint to do so.
You have the right to access your own information that WAPPoint keeps about you by following the procedures available under the WAPPoint Promotion to Access to Information Act Manual available from the WAPPoint website.
Online advertising and third parties
WAPPoint engages with third parties that help it deliver its banner advertisements and other online communications.
The third parties may collect and use information about WAPPoint customers that is limited to web browser behaviour to help us understand the offers, promotions, and types of advertising that are most appealing to its customers. The information they collect is aggregated and cannot be linked to a person or any specific information about that person. If you do not wish your information to be used in this way, please notify us.
– Third party vendors, such as Google and DoubleClick, who may show WAPPoint’s ads on sites on the internet.