SCAN TO PAY

TERMS AND CONDITIONS

('AGREEMENT')


Read the following agreement carefully. These are the terms and conditions of the agreement between yourself, and Ukheshe Technologies (Pty) Ltd (herein after referred to as 'UT') (herein after UPS and UT will be collectively referred to as 'Ukheshe').

 

This Agreement explains Your rights, obligations and responsibilities, as well as those of Ukheshe. Upon registration for or utilization of any of the Services and/or Products offered by Ukheshe, You agree to and accept the terms of this Agreement.

1.           RECITALS

1.1.      UPS is a registered Financial Services Provider (FSP 45133), Third Party Payments processor registered with the Payments Association of South Africa, Merchant Aggregator registered with MasterCard and Nedbank (TPPP);

1.2.      UT is a System Operator;

1.3.      UT has developed an App, "Scan to Pay", which is a digital wallet service (Scan to Pay Service or Scan to Pay) offered by Ukheshe (we, us, our or ours) that stores your selected payment information in one convenient and secure place (Scan to Pay Wallet).

1.4.      That information is then transmitted at your request to merchants that display the Scan to Pay acceptance mark physically at their store, on their website, mobile site, electronic bill or smart device application (each, a Scan to Pay Merchant).

1.5.      IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT REGISTER FOR A SCAN TO PAY WALLET OR USE SCAN TO PAY SERVICE.

1.6.      These Mobile Application Terms and Conditions ("Terms") are a legal agreement between you and Ukheshe and apply to all users of the Scan to Pay Wallet and Scan to Pay Services.

1.7.      By downloading, accessing, creating an account, clicking 'accept', 'proceed', 'continue', or by using the Scan to Pay Service, you agree to these Terms and represent and warrant that you are at least 18 years of age, capable of entering into a legally binding agreement and that you are the primary cardholder in respect of all the Cards that are linked to the Scan to Pay Wallet. You may use the Scan to Pay Service only on your own behalf.

1.           DEFINITIONS

1.1.      Unless a contrary intention clearly appears, the following terms shall have the following meanings assigned to them and cognate expressions shall have corresponding meanings, namely -

1.1.1.         'Acquiring Bank' means a bank or financial institution that processes credit or debit card payments on behalf of a merchant. The acquirer allows merchants to accept credit card payments from the card-issuing banks within an association.

1.1.2.         'Agreement' means this document of 'standard terms and conditions' read together with any other Agreements entered into between the relevant parties (if any), as well as any Annexures thereto. By registering for or utilising any of the Services or Products offered by Ukheshe you unconditionally signify your assent to the terms of this Agreement and as such the Agreement becomes legally binding between You and Ukheshe and further, You warrant that the information you have provided upon registration is true and correct in all respects.

1.1.3.         'App' means the Scan to Pay mobile application which You utilize to access the Services which will be rendered and/or utilised on Your instruction;

1.1.4.         'App Store' means Your device's application store from which You download the App;

1.1.5.         'Card(s)' means compatible virtual or physical credit, debit, charge and/or cheque card(s) with a PIN, including prepaid card(s);

1.1.6.         'Card Schemes' means any major Card Scheme, including but not limited to, Visa, MasterCard, Union Pay International and American Express;

1.1.7.         'Card transaction' means any cash withdrawal, payment, inter-account transfer or deposit transaction made with the card from or to the customer's account by using an ATM or other electronic device, and/or the purchase of goods/services from merchants who will accept the card;

1.1.8.         'Confidential Information' means all information and data of whatsoever nature (including the Intellectual Property), whether tangible, intangible, oral or in writing and in any format or medium that is obtained or learned by, disclosed to You, or comes to Your knowledge through Us during the course of or arising out of or in relation to this Agreement or Your use of the Interface, Products, App and/or the Services, by whatsoever means, which by its nature or content is or ought reasonably to be identifiable as confidential or proprietary to Us, or which is provided or disclosed in confidence, irrespective of whether it appears in written, oral, electronic or graphical format;

1.1.9.         'CPA' means the Consumer Protection Act 68 of 2008, as amended, varied, re-enacted, novated or substituted from time to time;

1.1.10.     'Customer or Card Holder' means the consumer making a purchase from You (for the avoidance of doubt, You are referred to in this specific clause as the merchant / retailer) by using the Service or who has registered with and has been issued a card by Us;

1.1.11.     'Default Card' means the Card you chose as your default payment option when you registered your Card(s) on the Scan to Pay Wallet;

1.1.12.     "Destructive Code" means any "viruses", "trojan horses", computer code, malware, instructions, devices or other materials designed to disrupt, disable, harm or otherwise impede in any manner the operation of any Device, technology, services, data, storage media, programs, equipment or communications, or otherwise interfere with operations thereof;

1.1.13.     "ECT Act" means the Electronic Communications and Transactions Act 25 of 2002, as may be amended from time to time;

1.1.14.     'Effective date' means the date and time that You download the App, register a profile and agree to the Terms and Conditions or upon use of any of the Services or Products;

1.1.15.     'FICA' means the Financial Intelligence Centre Act 38 of 2001, as amended, varied, re-enacted, novated or substituted from time to time;

1.1.16.     'Intellectual Property' means, collectively, all and any intellectual property including,  any registered or unregistered trademark, trade name, or service mark, any patent, domain names, designs, copyright, design right, software application right, topography right, application to register any of the aforementioned rights, trade secrets, any right in unpatented know-how, any right of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world, including any licence rights and the right to take legal action;

1.1.17.     'Issuer' means the bank or financial institution that issued your Card to you;

1.1.18.     'Know-How' means all ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used in connection with Our business; all available information regarding marketing and promotion of Our products and services (including the Services); and all and any modifications or improvements to any of them;

1.1.19.     'Device or Mobile Phone or Smart Device' means a single mobile phone or tablet with a central processing unit capable of executing instructions from a software program or via USSD, and which is used, owned or leased by You;

1.1.20.     "Merchant" means a merchant which you purchase any product or service from and which participates in the Ukheshe Scan to Pay Services;

1.1.21.     'Merchant Device' means a point-of-sale (POS) device, mobile phone or tablet;

1.1.22.     'Participating Merchant' means a merchant that is integrated into Ukheshe and offers either Cash Withdrawal Token services and/or Cash deposit services and/or Purchase services;

1.1.23.     'Password' means the password chosen by you for purposes of the App;

1.1.24.     'Payment Information' means you Card number and expiration date, billing information and other information for your card(s), along with your preferred shipping address;

1.1.25.     'Personal Information' has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013 and any applicable law in South Africa and/or in any other jurisdiction where the Services and/or Products are provided and/or used;

1.1.26.     'PIN' means personal identification number;

1.1.27.     'POPIA' means the Protection of Personal Information Act 4 of 2013, as amended, varied, re-enacted, novated or substituted from time to time;

1.1.28.     'Processing' has the same meaning as 'processing' as defined in POPIA, which for instance will include (subject to the provisions of POPIA, which may be amended from time to time): collecting, storing, collating, using, modifying, sending, distributing, deleting and destroying Personal Information;

1.1.29.     'RICA' means The Regulation of Interception of Communications and Provision of Communication Related Information Act as amended from time to time;

1.1.30.     'Scan to Pay' means the mobile payment platform developed by Ukheshe known as "Scan to Pay" and all technical interfaces, application programming interfaces, websites, dashboards and Intellectual Property Rights in and to Scan to Pay;

1.1.31.     'Scan to Pay Platform' means the Scan to Pay platform made available by Ukheshe through the App;

1.1.32.     'Scan to Pay Services' means the payment processing services provided by Ukheshe through the Scan to Pay Platform;

1.1.33.     'Scan to Pay Wallet' means the Scan to Pay digital wallet created by you when you register to use the Scan to Pay Services;

1.1.34.     'Selected Merchants' means those merchants as selected by Us from time to time and with whom We have contracted to provide VAPs;

1.1.35.     'Services' or 'Products' means the provision of any payment related services or products rendered through any channel, App, or any other medium through which the Service is rendered and as described more fully in the clause with heading 'Services' of this Agreement;

1.1.36.     'Software' means the object code of, and Documentation for the Services offered to You;

1.1.37.     'Third Party Site/s' mean/s any website or content that belongs to a third party (including a Scan to Pay Merchant) that is either featured or is linked to the Scan to Pay Service;

1.1.38.     'Transaction' means any transaction where you purchase any product or service from a Scan to Pay Merchant by transmitting your Payment Information through Scan to Pay.

1.1.39.     'Wallet' means a User's grouping of Cards;

1.1.40.     'We' or 'Us' or 'Our' or 'Ukheshe' or 'Service Provider' shall mean Ukheshe Technologies (Proprietary) Limited ('UT'), Registration Number: 2017/471522/07, 1st Floor, Golfers Corner, Design Quarter, Fourways, Johannesburg 2191;

1.1.41.     'You or User' means the person who registers, creates a profile either via the Ukheshe interface or App and/or any person who utilises any of the services offered by Ukheshe. 'Your' and 'User' shall have corresponding meanings.

 

1.2.      Any reference in this agreement to the singular also includes the plural or the reference to male also includes the female.

 

2.           ACCEPTANCE

2.1.      By registering for the Ukheshe account alternatively by utilising the Services, You agree and acknowledge that:

2.1.1.         You accept the terms and conditions of this Agreement;

2.1.2.         You are 18 years or above of age;

2.1.3.         You are of sound mind and full legal capacity.

 

3.           COMMENCEMENT AND REGISTRATION This user agreement is effective from the first date you download and/or access the Digital Platform.

3.1.      This Agreement is effective from the effective date, and will remain in force unless terminated in accordance with the other terms of this Agreement, or by written notice.

3.2.      It is specifically agreed that We may suspend the Service or terminate the Agreement immediately for regulatory or statutory reasons as well as for any reason considered material by Us.

3.3.      In order to access and/or use the App or Scan to Pay Platform, Scan to Pay Services and/or Wallet, You need to download the App and thereafter register an account/profile with Us by going through the registration process on the App.

3.4.      This will involve providing Us with certain Personal Information, which may include (but is not limited to):

3.4.1.     your name and surname;

3.4.2.     gender;

3.4.3.     mobile number;

3.4.4.     email address;

3.4.5.     card information;

3.4.6.     Date of birth;

3.4.7.     address;

3.4.8.     location;

3.4.9.     billing information, transaction and payment card or other payment method information;

3.4.10.  bank account and payment details;

3.4.11.  details of any information, feedback or other matters you give to us by phone, email, post or via social media;

3.4.12.  your account details, such as username and login details;

3.4.13.  your activities on, and use of, our website/App;

3.4.14.  information about the services we provide to you;

3.4.15.  your purchase history;

3.4.16.  information about how you use our website/App and technology systems;

3.4.17.  your responses to surveys, competitions and promotions.

3.5.      You hereby agree that said information may be shared with Our third-party service providers which include but is not limited to Banks and Mobile Network Operators.

3.6.      You furthermore acknowledge and agree that you grant worldwide permission to use, store, copy, share, reproduce, and distribute your Personal Information only as reasonably required to provide the relevant service.

3.7.      All information you give us must be truthful, accurate and complete. This also includes the information (especially the Payment Information) that we request you to provide in the registration process and at any time after that. We are not responsible for incorrect information given by you.

 

4.           SERVICES

4.1.      The App and/or Scan to Pay Platform enables a User to select one or more of the following Services for use within South Africa (including but not limited to):

4.1.1.         Save more than one Card to your Scan to Pay Wallet;

4.1.2.         Access reports on transaction history;

4.1.3.         Update your information (We are not responsible for incorrect and/or invalid information given by you);

4.1.4.         Scan and pay QR codes

4.1.5.         Purchase value added service such as, but not limited to, Airtime & Data, Electricity, Paying Bills

4.1.6.         Sending money from one person to another

 

5.           USE OF THE SCAN TO PAY SERVICE/PLATFORM

5.1.      You agree that you:

5.1.1.         will not use or access the Scan to Pay Service carelessly or negligently;

5.1.2.         will only use the Scan to Pay Service on the Device with which you registered;

5.1.3.         will use the latest version of the App to ensure that it works correctly. If you do not install the latest version, the App may not work correctly and you may experience security and/or data flaws, for which we will not be liable under any circumstances;

5.1.4.         are solely responsible for ensuring your use of Scan to Pay complies with the terms and conditions that govern your Cards that you store in and use through your Scan to Pay Wallet. Nothing in these Terms overrides the terms and conditions on your Card as agreed with the Issuer and it is your responsibility to comply with such agreement.

6.           TRANSACTING WITH A SCAN TO PAY MERCHANT

6.1.      When you purchase at a Scan to Pay Merchant, the Payment Information that you have registered in your Scan to Pay Wallet will be used to process your Transaction.

6.2.      Each Transaction is subject to the Scan to Pay Merchant's specific terms and conditions, and is a contractual relationship directly between you and the relevant Scan to Pay Merchant. Our inclusion of a Scan to Pay Merchant in Scan to Pay does not constitute any approval, endorsement or warranty by us of such Scan to Pay Merchant or the products or services offered by them.

6.3.      You must check that your purchase is correct, not only with regards to the contents of your purchase but also with regards to the details of the Scan to Pay Merchant. We will process your instruction to debit your Card for the particular Transaction in real time. Once you submit your Transaction it cannot be reversed.

6.4.      We are not responsible for any loss you suffer if you enter the incorrect details for your Transaction.

6.5.      We are not responsible for any loss or damage you suffer because you repeated a purchase and we repeated the debit.

6.6.      If you have any disputes with respect to any Transaction made via the Scan to Pay Services, you must contact your Issuer directly.

7.     TRANSACTION DISPUTES

7.1.      If you have any disputes with respect to any Transaction made via the Scan to Pay Service, you must contact the Scan to Pay Merchant with which you entered into the Transaction.

7.2.      If you have any issues regarding any of your Cards, then you must contact your Issuer directly.

7.3.      If you have any disputes on any value added services purchased you can contact support@scantopay.io

 

8.           TRANSACTION HISTORY

8.1.      Transaction history can be accessed through the App at Your request.

8.2.      If You believe that Your Transaction history contains an error(s) You must notify Us of the error via e-mail or by contacting support in the App within 30 (thirty) days of the receipt of the transaction history, failing which you will have no claim whatsoever in respect of or arising from such error(s).

 

9.           ANTI-MONEY LAUNDERING, FRAUD, DISPUTES

9.1.      You acknowledge and understand that We are an accountable institution for adherence to all regulatory and legislative requirements under this Agreement in terms of the Financial Advisory and Intermediary Services Act 37 of 2002 and furthermore, an accountable institution in terms of Financial Intelligence Centre Act 28 of 2001 as amended by the Financial Intelligence Centre Amendment Act 1 of 2017.

9.2.      You provide Your irrevocable consent to Us to disclose any information provided by You in terms this clause to any Regulated Institution and/or Officer as may be required in terms of applicable anti-money laundering and counter-terrorist financing legislation (including FICA) or any other relevant legislation.

9.3.      You shall not use the Services to commit any of the following acts:

9.3.1.         any act which undermines Our reputation, privacy, intellectual property and other rights;

9.3.2.         any act which assists in, allegedly results in, or may actually result in, fraud, money laundering, terrorist financing or impermissible or illegal trading;

9.3.3.         any act which involves Your use of an invalid Card or the Card of another person or User without such other person's or User's consent;

9.3.4.         any act which involves Your use of an invalid bank account or the bank account of another person or User without such other person's or User's consent;

9.3.5.         any act that We or any Bank, EFT payment network reasonably believe to be an abuse of the card system or a violation of card association or network rules or any other rules governing or applicable to such payments network, as may be updated from time to time.

9.4.      In order to prevent Fraud, We may implement Fraud Prevention measures, as updated from time to time without prior notice to You. We may require that You supply additional information to verify that that any payment made through Us is valid and that You have made the payment. Should You fail to provide Us with the requested information, We reserve the right to suspend Your profile or Account, until said request has been complied with to Our satisfaction.

9.5.      Should we or the Bank or relevant Card Scheme note any Illegal/criminal/fraudulent activity on your Wallet, either Us, the Bank or Card Scheme may investigate and accordingly reserve the right to terminate this Agreement immediately.

9.6.      Fraud prevention methods, legislation, Rules, Regulations and processes change from time to time and as a result we reserve the right to amend or policies and procedures as required without prior notice to You. You agree to be bound and adhere to same.

 

10.       PROVISIONS OF THE CONSUMER PROTECTION ACT, 2008 ('CPA')

10.1.  The provisions of this Agreement contain assumptions of risk and/or liability by You. It furthermore limits and excludes liabilities, obligations and legal responsibilities, which We will have towards You and other persons. The provisions of this Agreement also limit and exclude Your rights and remedies against Us and place various risks, liabilities, obligations and legal responsibilities on You. These provisions may result in You being responsible for paying additional costs and amounts and We may also have claims and other rights against You.

10.2.  In particular, amongst others, please make sure to consider the provisions of the Risk clauses herein below very carefully, because they have an impact on the risks You carry in making use of the Software and the Services, and on Our liability to You.

10.3.  To the extent that any Services provided under this Agreement are governed by the CPA, no provision in this Agreement is intended to contravene the applicable provisions of the CPA, and therefore all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure that the applicable provisions of the CPA are complied with.

 

11.       GENERAL TERMS RELATING TO WALLETS OR ACCOUNTS

11.1.  You acknowledge and understand that:

11.1.1.     Your resignation as a User, and Your election to make payments with your Card via the wallet, does not represent an investment with Us in any manner whatsoever;

11.1.2.     any transactions of money are made at Your own risk and We do not accept any liability for any loss, damage (whether direct or consequential), or delays experienced in relation to the receipt of funds or purchase;

11.1.3.     We will keep a record of all the transactions for a period for 5 (Five) years, which record You can access via the App for a period of 3 (Three) months from date of transaction, any records older than 3 months can be requested; and

11.1.4.     We do not verify the Transaction information and accordingly will not be held responsible for any loss incurred by You as a result of any incorrect information provided;

11.1.5.     We do not guarantee the availability of funds at the Selected Merchant, nor do we guarantee that a specific denomination will be available when withdrawn by the Recipient at the selected merchant.

 

12.       APPSTORE TERMS

12.1.  The ways in which You can use the App and any other related Services may also be controlled by the rules and policies of the App store from which You download the App. In the event that there exists a conflict between any term, condition, or provision contained within this Agreement, and in any term, condition, or provision contained within the relevant App or App store terms, the term, condition, or provision contained therein shall take preference.

 

13.       OPERATING SYSTEM REQUIREMENTS

13.1.  The App requires a Device with internet connection and camera to be operational.

13.2.  The Device needs to have a valid cell phone number and complies with RICA.

 

14.       ELECTRONIC TRANSMISSION OF INFORMATION

14.1.  The transmission of data or information (including communications by e-mail) over the Internet or other publicly accessible networks may not always be secure, and is subject to possible loss, interception, or alteration while in transit.

14.2.  Accordingly, We do not assume any liability, without limitation, for any loss or damage You may experience or costs You may incur as a result of any transmissions over the Internet or other publicly accessible networks, including but not limited to transmissions involving the Software, App, Services or e-mail to Us containing Your Personal Information.

14.3.  We will take commercially reasonable steps to safeguard the privacy of and keep confidential the information You provide to Us and will treat such information in accordance with the provisions of this Agreement. Under no circumstance, unless and only to the least extent required otherwise by applicable law, will the information You provide to Us create any fiduciary obligations for Us, or result in any liability for Us in the event that, in spite of Us taking reasonable steps to prevent it, such information is lost, damaged or destroyed, or accessed or processed by third parties, without Your or Our consent.

 

15.       SOFTWARE LICENCE

15.1.  We hereby grant You a personal, non-exclusive, non-transferable, fully paid-up license (with no right to sub-license, transfer or assign) to install a single instance of the Software onto a Device, and to use the Software in conjunction with that Device, in the Republic of South Africa, for Your own internal data processing purposes, strictly upon the terms and subject to the conditions of this Agreement.

15.2.  The Software and the Services are not automatically supported and the license does entitle You to any updates, upgrades, new releases or support services for the App, and We may provide these in Our discretion from time to time. You agree that the terms of this Agreement shall apply to any updates, upgrades or new releases provided to You. If You are of the opinion that the Software or the Services are faulty or misdescribed, please go to https://www.scantopay.io/.

15.3.  You undertake to always use the latest version of the App. The App Store may notify You of any upgrades/updates that are available to You. The upgrades and updates provided are, amongst other things, to ensure that the System is as secure as possible and as a result We strongly encourage You to install such upgrades and updates as soon as possible after they are made available by the App Store. Subject to the remainder of this Agreement, We shall not be liable for any security / data bugs that You may experience if You fail to install the latest version of the App.

15.4.  If We have to contact You, for instance in relation to maintenance and support of the Software or the Services, We will do so by email, via the App Platform or SMS or telephonically, using the contact details You have provided to Us.

15.5.  You can only transact through the App in line with the facilities available to You through Your.

15.6.  All ownership rights (including Intellectual Property rights) in and to the Software (including updates, upgrades and new releases) and the System and all other Intellectual Property, are and shall remain vested in Us, Our licensor(s) or a party nominated by Us and shall never pass to You. You shall not during or at any time after expiry or termination of this Agreement, question or dispute Our ownership of the Software or Intellectual Property. Except as and to the extent authorised in this Agreement, You shall have no right to use Our Intellectual Property in any manner whatsoever.

15.7.  You may not duplicate, reverse engineer or reproduce in any way the App and information, documentation and proprietary products made available via the App or any other platform without our express prior written consent.

15.8.  You may not make a copy of the Software for back-up purposes. Other than as expressly provided for herein, You may not in any manner copy or otherwise reproduce the Software (wholly or partially).

15.9.  Except as expressly set out to the contrary herein, You will not, and will not assist any third party to, copy, reproduce, transmit, distribute, sell, resell, license, sub-license, rent, lease, transfer, assign, disclose, de-compile, reverse compile, reverse engineer, disassemble, modify, publish, create derivative works from, perform, incorporate into another website, computer program or product, or in any other way reduce to human-perceivable form or exploit all or any part of the Software or the Intellectual Property. If You sell any device on which the Software is installed, you must remove the Software from it.

15.10.   You irrevocably undertake and agree that upon termination for whatever reason of this Agreement and/or any license granted under this Agreement, You shall:

15.10.1.      immediately cease all use of the Software and any other Intellectual Property;

15.10.2.      immediately de-install or delete (as appropriate) every copy (including partial copy) of the Software and any other Intellectual Property acquired or made by You from wherever it is installed;

15.10.3.      destroy every copy (including partial copy) of the Software and any other Intellectual Property acquired or made by You, by no later than 3 (three) days thereafter.

15.11.   Third party software provided with the Software is licensed to You on its accompanying license terms, including warranties and remedies. We provide no warranties regarding the software, operating systems and internet browsers including, without limitation, warranties relating to the suitability for a particular purpose, security features or performance. You acknowledge that the use of third-party software will be at your own risk and you indemnify us against and hold us harmless from any and all loss or damage that you may suffer as a result of the use, abuse or possession of third-party software.

15.12.   You agree that any breach by You of any provision of this clause shall be seen as a material breach of this Agreement.

15.13.   You indemnify us against all actions, claims, costs, demands, expenses and other liabilities suffered or incurred by us as are result of any third party claims initiated and/or instituted against us relating to your unauthorised use of Scan to Pay, the App, the content thereon and/or any other Intellectual Property rights flowing from them.

15.14.   Any breach under this clause entitles us, in addition to our normal common law remedies, to take legal action without prior notice to you and you agree to reimburse the costs associated with such legal action to us on an attorney and own client scale.

 

16.  RISKS AND RESPONSIBILITIES

16.1.  You agree to use the Software and/or Services in accordance with the terms of this Agreement and to comply at all times with all applicable laws, regulations and ordinances.

16.2.  Except as regards Your reliance on the Software and the Services to do so, You accept the risk of transacting on the App. In entering into any transaction, You represent that You have been, are, and will be solely responsible for making Your own independent appraisal and investigations into the risks of the transaction. You represent that You have sufficient knowledge, and experience to make Your own evaluation of the merits and risks of any transaction.

16.3.  You are responsible for complying with applicable law. You must ensure that You are fully aware of all laws that may apply to You in relation to Your access to and use of the Software and the Services and to the transactions envisaged in or related to this Agreement, and agree that You are fully responsible for complying with such laws.

16.4.  You agree that We are not responsible for determining whether or which laws may apply to Your transactions, including any tax laws, transfer pricing rules or exchange control regulations; We are not responsible for ensuring that You comply with such laws. You are solely responsible for compliance with applicable laws, including notifying, withholding, collecting, reporting and remitting any taxes and duties that are payable as a result of Your access to and use of the Software and the Services and any transactions You may be involved in.

16.5.  You are aware of and accept the risk of operational challenges. No Software is error and risk free, as a result we may experience cyber-attacks, cyber-security breaches, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions in the Service or Your access to the App, and may even affect Your Wallet or Account. While We will do Our best to minimise the inconvenience and losses sustained as a result of such circumstances and will take reasonable steps to guard against them, You accept the risk of transaction failure resulting from such operational or technical difficulties, including those resulting from sophisticated attacks. You agree not to hold Us accountable for any related losses, unless gross negligence can be proven.

16.6.  We do not advise on trading or any other financial activity. Our Services do not include, and it is not Our intention to give You any form of investment or financial advice, or professional advice of any kind. You should seek Your own independent financial advice before opening a Wallet or Account, or entering into any transactions with Us. You acknowledge that You have been free to secure independent legal, financial and other advice as to the nature and effect of the Services and Your making use thereof, and of all of the provisions of this Agreement and the relevant Exchanges' terms and conditions, and that You have either taken such independent advice or dispensed with the necessity of doing so.

16.7.  We must comply with applicable law. Applicable law, regulation, and/or orders or rulings by regulatory and other governmental bodies may require Us to freeze transactions, withdrawals or contributions (or any combination thereof), or provide information (including Personal Information) regarding Your identity, location and/or Your Wallet or Account. Further, Our record-keeping and customer verification procedures are subject to change at any time as required by law, or industry practices. We must comply with applicable law and regulation and You accept any inconveniences to You or other consequences resulting from Our compliance.

16.8.  You agree and acknowledge that we may change or impose new limits on transactions from time to time as may be required by Applicable law, regulations or industry best practice.

 

17.       ATTACKS

17.1.  While We will take all reasonable steps to prevent and mitigate attacks and breaches, there will sometimes be attacks on the Software or the Services in spite of Us taking such steps, and in the event of such an attack there may be nothing that We can reasonably do to prevent its consequences. With respect to the Software, if We are able to confirm that any funds or that Your Wallet or Account has been compromised or is under attack, We may immediately halt the provision of the Services, the functioning of the Software, and any transactions involving Your Wallet or Account. In the event of such an attack, We shall do Our best to do what a reasonable person in Our place would have done, considering the circumstances and what is commercially viable and reasonable.

17.2.  No technology or software is ever perfect or error free, as a result there is no way of Us preventing all cybersecurity attacks. Accordingly, We make no representation and do not warrant or guarantee the safety or security of the Software or the Services and are not liable for any lost value or stolen property, unless and only to the extent that We wilfully or grossly negligently failed to implement reasonably security measures.

 

18.       WARRANTIES AND DISCLAIMERS

18.1.  We warrant that We are the owners of or have valid title to the Software and are entitled to grant the rights to You as envisaged in this Agreement.

18.2.  We do not warrant that the Services or the Software will be completely free from errors or that errors will be corrected completely, nor that it will meet Your requirements, nor that it will operate in all combinations selected for use by You.

18.3.  You acknowledge that whilst We take reasonable care to exclude then-known viruses, malware, worms and Trojan horses from the Software, no warranty is given that the Software is free of viruses, worms or Trojan horses.

18.4.  You agree that We shall not be responsible for any malfunction, non- performance or degradation of performance of the Software which is caused by or results from, directly or indirectly, any alteration to, adjustment of, attachment to, or modification of the Software by anyone other than Us.

18.5.  As expressly provided in this clause 20 and except as required by applicable law, the Services, the Software and the Interface are provided 'as- is'.

18.6.  You must ensure that the correct information is provided when making a Transaction. We will not be responsible for any losses if You fail to provide the correct Transaction information.

18.7.  We will also not be responsible if You insert the incorrect amount.

18.8.  The Wallet or Account is only intended to be used for payment for goods and/or services as contemplated expressly in this Agreement, and We accept no liability otherwise.

18.9.  You specifically acknowledge that we not have any control over whether all your Transactions with a particular Scan to Pay Merchant will be completed or whether the Issuer will authorise the Transactions that you initiate.

18.10.   You warrant that You are the lawful owner of the bank Card whose details are registered to You in the App.

18.11.   The warranty will not extend to defects:

18.11.1.      caused by the actions of you or for reasons attributable to you;

18.11.2.      if you do not update the App and or software with updated versions as and when these versions become available; and

18.11.3.      if you do not make use of the App for an extended period of time, allowing the account to go dormant.

 

19.       CONFIDENTIALITY

19.1.  You shall treat all Confidential Information as strictly confidential and not use it for any purpose other than performing Your obligations or exercising Your rights upon the terms of this Agreement. You shall not disclose Confidential Information to any person or third-party.

 

20.       PRIVACY AND USE OF PERSONAL INFORMATION AND DATA

20.1.  This section sets out how We use and protect any information provided by You when registering for and making use of the Services via any Interface.

20.2.  We are committed to ensuring that Your privacy is protected. All information requested will be used within the terms of this Agreement.

20.3.  We may collect the following information, which We may need in order to provide You with the Services and access to the Software:

20.3.1.     name, surname;

20.3.2.     unique Internet mobile equipment identity (IMEI) number of your mobile telephone;

20.3.3.     the unique integrated circuit card identity (ICCID) number of your SIM card in your Device;

20.3.4.     contact information including cellular number and email address;

20.3.5.     geographic information using GPS functionality;

20.3.6.     transactional history and any other related information;

20.3.7.     geographic location information based on your mobile network operator's tower details, GPS (Global Positioning System) and/or WIFI communications network location;

20.3.8.     Bank details;

20.3.9.     Debit/Credit card summary information to verify card transactions;

20.3.10.  We shall process Your Personal Information in accordance with the conditions for lawful Processing as set out in the POPI Act.

20.4.  We will use Your Personal Information for legal and compliance purposes: This includes using Personal Information needed to comply with legal and regulatory duties related to anti-money laundering and counter-terrorist financing; detection, prevention and prosecution of fraud and theft as well as preventing illegitimate or prohibited use of our services or other illegal or wrongful activity. This may also include establishing, exercising, or defending legal rights and claims of Us and others, and monitoring and reporting compliance issues. This may further include using your personal information to validate and authenticate your identity, and utilizing third parties to help us do so.

20.5.  We will inform you when your information is required to provide the services you request, or is required by law.

20.6.  You consent to Us using the information gathered to: create and administer Your Wallet; creation of your profile and Account; administering your profile and account; provide support services to you; provide Services to You; perform the Transaction; meet legal or other regulatory obligations imposed on Us; audit usage of Our software and services (including the Services); understand Your needs and to provide a better service, and in particular for internal record keeping; transaction verification and authentication; detect fraud and manage risk; improve Our internal operations and efficiencies; improve Our products and services; send You promotional communications about new products, special offers or other information which We think You may find interesting using the email address which You have provided; and otherwise perform Our obligations and exercise Our rights under this Agreement.

20.7.  You have the right to access Your Personal Information and, should the information be inaccurate, You may request Us to correct Your Personal Information.

20.8.  Should you not wish Your location settings and other information to be disclosed to us, the Smart Device or software will allow you to turn off the location settings, and therefore disallow us access to the information.

20.9.  To the extent the relevant provisions of POPIA are in effect in relation to such rights, You may object to Our Processing of Your Personal Information in accordance with the provisions of POPIA. If you do so and We are not able to Process Your Personal Information then We may not be in a position to provide You with the Services.

20.10.   It should also be noted that if some of the Services provided by Us to You require Us to Process the Personal Information of someone else, and that person has not consented to Us doing so, this will affect Our ability to provide the Services to You and may mean that We are not in a position to provide those Services to You. Any recipient of your funds must accept the provisions of this Agreement and, if they have not done so, We will not facilitate transactions between You and such recipient. For the avoidance of doubt, Our failure to provide the Services to You in such instances will not be a breach of this Agreement by Us and will not give rise to liability on Our part.

20.11.   You hereby agree that We may send You information: for the marketing of goods and services to You, for the marketing of goods and services to You on behalf of third- party companies, when We believe that these offers may be of interest to You; and that We may provide de-identified or aggregated information to third-party companies for the provision of analytical ratings about Your transactional patterns behaviours and customer care data and information, including call centre reports and sales assistance information.

20.12.   You have the right to request that We no longer contact You regarding the marketing of goods and services to You, whether for Our own purposes, or on behalf of third parties. Such request can be made through the contact details provided in these terms and conditions and upon receipt of such request, shall desist in such direct marketing.

20.13.   From time to time, We may also use Your information to contact You for market research purposes. You consent to Us contacting You by email or on Your cellular phone number. However, if You would like Us to refrain from doing so, please let Us know and We will comply with Your request.

20.14.   We may use the information to customise the Services according to Your interests.

20.15.   We may elect to share Your Personal Information with:

20.15.1.      service providers under contract with Us where this is necessary for Us to perform Our obligations under this Agreement;

20.15.2.      parties where We are required to do so by law, court order, or in compliance with applicable identity verification or legal reporting obligations, and that, to the extent permitted or required under applicable law, We may do so even when Your relationship with Us is terminated or Your Wallet is cancelled; and

20.15.3.      other third parties, provided We have received Your explicit consent.

20.16.   You expressly consent that We may process and further process your Personal Information to any of Our group companies, which may be located outside of South Africa for the above purposes (in which case, We will ensure that the location to which Your Personal Information is transferred will be a location with at least as onerous restrictions on the Processing of Personal Information as are applicable in South Africa ) and that We may disclose Your Personal Information to any person who provides services to Us or acts as Our agent to whom We have transferred or propose to transfer any of Our rights and/or duties in respect of Your Wallet, pursuant to Our performance of this Agreement; and We will ensure that such persons agree to Our privacy policies in Processing Your Personal Information. Such policies can be accessed at: www.ukheshe.com

20.17.   Upon termination of the Agreement, and upon Your written request, We shall delete or destroy all of Your Personal Information, unless and to the extent that We are required by law to retain records of Your Personal Information.

20.18.   We reserve the right to monitor your usage of the Scan to Pay Service to ensure compliance with the Terms.

 

21.       YOUR CONSENT

21.1.  You acknowledge that you accept and provide your irrevocable consent to this 'Your consent' clause, and specifically allow for the collection, storage, Processing and disclosure of Personal Information as described in this Agreement and for the purposes of this Agreement. Should You or We terminate use of the Services, consent is still given to Our retention of the information We have already collected and for the uses as specified in this Agreement. If You do not consent to Us Processing your Personal Information, We cannot fulfil the terms of the Agreement.

 

22.       DISCLOSURE OF PERSONAL INFORMATION

22.1.  We will treat your Personal Information as confidential and shall not disclose your information to third parties, except as permitted under these Terms or where we are legally compelled to do so.

22.2.  You acknowledge and consent that we may disclose your Personal Information under the following circumstances:

22.2.1.     we will need to disclose your Personal Information to perform Transactions with other entities, including but not limited to, Issuers, financial institutions and/or entities that process card transactions and that assist with payment transaction processing;

22.2.2.     we may disclose your Personal Information to any person who provides services to us, any person who acts as our agent or to whom we have transferred or propose to transfer any of our rights and duties in respect of your Scan to Pay Wallet (some of these persons may be located in countries outside of the Republic of South Africa).  We ask persons who provide services to us to agree to our privacy policies if they need to access any Personal Information to carry out their services;

22.2.3.     the information we Process may be used by any member of the Group worldwide, including countries that may have less stringent data privacy laws than your country; and

22.2.4.     we may need to disclose your Personal Information to our legal advisors, financial advisors, auditors or a competent court in connection with any legal proceedings.

 

23.       NON-PERSONAL INFORMATION

23.1.  Notwithstanding anything contained in this Agreement regarding Your information, the following information is not regarded as Personal Information for purposes of this Agreement:

23.1.1.     information which cannot be linked back to You; and

23.1.2.     non-personal statistical information i.e. information which has been aggregated and cannot be linked back to You.

 

24.       THIRD PARTY SITES

24.1.  Third Party Sites are included only for your convenience and do not constitute any approval, endorsement or warranty by us. When you click on a link to or in a popup of a Third Party Site, you will leave the services controlled by Scan to Pay. Any Personal Information you submit after you leave Scan to Pay will not be collected or controlled by us. It will be subject to the privacy notice or terms of use applicable to the Third Party Site. It is your responsibility to review those policies before submitting your information to the Third Party Site and you provide your information at your own risk. You indemnify us from any and all losses and/or damages you incur as a result of your access to or use of any Third Party Site.

24.2.  You agree that we are not liable for any of the following:

24.2.1.     the content, security, operation, use, accuracy or completeness of any such Third Party Sites; or the products or services that may be offered or obtained through them; or the accuracy, completeness, or reliability of any information obtained from a Third Party Site;

24.2.2.     the ownership or right of use of any licensor of any software provided through any Third Party Site;

24.2.3.     any content featured on Third Party Sites that are accessed through the links found on the App;

24.2.4.     any failure or problem that affects the products or services of a Third Party Site, for example any telecommunication service provider, internet service provider, electricity supplier, local or other authority.

 

25.       SECURITY

25.1.  We are committed to ensuring that Your information, including Your Personal Information and Your information relation to payments and receipts, is secure. In order to prevent unauthorised access or disclosure, We have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information We collect. Should you require additional information and/or details relating to the security provisions We will provide you with same upon reasonable request by You.

25.2.  We confirm that we have reasonable security safeguards in place to protect your Access Details and other Personal or confidential Information you gave us via the App or platform. However, you accept that, while We will take all reasonable steps to prevent security breaches in respect of the Services, any information sent over an unsecured link or communication system is susceptible to unlawful monitoring, interception or access by a third party, for which we will not be responsible.

25.3.  In the event that an unauthorized person has accessed or acquired Your Personal Information, We shall notify You as soon as reasonably possible using the contact information You provided, unless prohibited in terms of applicable law or relevant authorities. Our notification shall contain sufficient information to allow You to take protective measures against the potential consequences of the security breach.

25.4.  In no event, unless and only to the least extent required otherwise by applicable law, will the information You provide to Us create any fiduciary obligations for Us, or result in any liability for Us in the event that, in spite of Us taking reasonable steps to prevent it, such information is lost, damaged or destroyed, or accessed or processed by third parties, without Your or Our consent.

 

26.       KEEPING YOUR PINS / PASSWORDS SECURE

26.1.  You must always keep your password and PIN secret and secure.

26.2.  You are responsible for all use of your Scan to Pay Wallet and your password.

26.3.  Whenever a person uses the Scan to Pay Wallet, or performs any other act, with your password or through your Scan to Pay Wallet, we will treat this as if it was done by you and with your approval.

26.4.  You are responsible for maintaining the strict confidentiality of Your Account, Profile, Physical Card PIN, Wallet's credentials, including without limitation Your login details, or App PIN, email, wallet address, Wallet, and of all activity on Your account.

26.5.  If you do not, you give up any claim you may have for any loss or damage you may suffer because you have not kept them safe. After your PIN has been entered, we will assume that any instruction is genuine.  If someone else uses PIN, we may carry out an instruction as if you authorised it.  You may also be held liable for any losses incurred by any other party due to someone else using your Scan to Pay Wallet or Payment Information.

26.6.  We will never ask you to enter your PIN, the last three digits of the number printed on the signature strip on the back of your Card (card verification value, or card validation code) on any device other than the Device with which you registered for the Scan to Pay Service.

26.7.  We will never ask You to disclose Your App or Account Password. You agree to report any message You receive that asks for Your account details. It is advisable to change Your PIN and/or App Password regularly (at least every 2 (two) to 3 (three) months) in order to reduce the risk of a security breach of Your account. Please choose a App Password that will not be easy to guess or work out, and as far as possible has no meaning. Do not ever allow anyone to access Your Wallet or to watch You accessing Your Wallet or Account. You agree to take all steps to ensure that Your login details are not stored by Your mobile device or cached or otherwise recorded, and should never use any functionality that allows login details or passwords to be stored by the computer You are using.

26.8.  If You have any security concerns about your Card, Your Wallet/Account, login details and/or App Password, other security feature being lost, stolen, misappropriated, used without authorization or otherwise compromised, please change Your Mobile Phone PIN and/or App Password and contact Us immediately. Any undue delay in doing so will affect the security of Your Wallet/Account, and may result in losses as a result.

26.9.  You agree to ensure that Your Device is secured with a PIN and e-mail account(s) are secure and only accessible by You, as Your Phone e-mail address and/or App can be used to reset passwords or to communicate regarding the details and security of Your Wallet and/or App and the Services. If any of the e-mail addresses or Phone number registered with Your Wallet are compromised, please notify Us and contact Your e-mail service provider immediately.

26.10.   In cases of theft or fraud, You should contact Us and lodge a case with the South African Police Services.

26.11.   We shall not be liable for any fraudulent activity initiated through the downloaded App.

26.12.   Neither we nor any of our service providers will be liable for any loss or damages of any kind that may arise as a result of the unauthorized use of your Scan to Pay Wallet or any Payment Information, either with or without your knowledge.

26.13.   Neither We, nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this section of the System. You acknowledge that such information and materials may contain inaccuracies or errors and We expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.

26.14.   Please ensure that Device is secured with a PIN or password. Unauthorised access of your Device may result in unauthorised transfers which We take no responsibility for.

You are responsible for keeping your PIN secure and for all activities that occur through your Scan to Pay Wallet, including the activities of others and regardless of whether such activities are authorised.

26.15.   You must notify us immediately by sending us an email at support@scantopay.io if you suspect that another person has obtained unauthorised access to your Scan to Pay Wallet or password, or if you are aware of any unauthorized use of your Scan to Pay Wallet or password. You will be responsible for changing your privacy settings on your Scan to Pay Wallet as soon as you become aware of any unauthorised access or use.

 

27.       CLOSURE OF YOUR WALLET OR ACCOUNT

27.1.  This agreement may be terminated, in whole or in part, by Ukheshe, whenever, for any reason, Ukheshe determines that such termination is in its best interest.

27.2.  Should we cancel and terminate this agreement for any of the aforementioned reasons, we will freeze the Account or Wallet.

27.3.  This Agreement will be terminated upon Us closing Your Wallet or Account, only if there are no funds in your Wallet or Account. You agree and understand that after Your Wallet or Account has been closed by Us, You will no longer have any access to the Wallet.

27.4.  You may not cancel Your Wallet or Account if We believe in Our reasonable discretion that such cancellation is being performed in an effort to evade an investigation or any liability (criminal or otherwise), or in an effort to avoid paying any amounts otherwise due to Us or any relevant governmental or regulatory authority. In this instance, We reserve the right to not act upon Your request.

 

28.       RECORDS

28.1.  A copy of all Wallet or Account Transactions are kept in our digital records.

28.2.  We will keep a record of all the transactions for a period for 5 (Five) years, which record You can access via the platform for a period of 3 (Three) months from date of transaction, any records older than 3 months can be requested.

28.3.  You may access these transactions by accessing Your transaction history the sending an email request to Us.

 

29.       FEES, CHARGES AND COSTS (will be published online)

29.1.  While the Scan to Pay Service is currently available free of charge, we may in the future charge for it (or additional features or functionality) at any time, in our sole discretion.

29.2.  Standard data costs will be charged by your mobile network operator.  Any questions related to your data costs must be sent to your mobile network operator.

29.3.  You are responsible for all charges and debits to your Cards that result from Transactions, including any fees charged by the relevant Issuer.

29.4.  All Services provided to You are executed on the Exchange and accordingly, once authorised by You, are automatic and cannot be reversed. Once You select Your Service it cannot be reversed, please ensure that all information is correctly inserted and that You make the correct / intended decision in relation to a Service.

29.5.  You will indemnify Us against any losses resulting from:

29.5.1.         You failing to pay the relevant costs or fees;

29.5.2.         You providing the wrong recipient/payment information;

29.5.3.         Someone else carrying out a payment instruction without Your permission;

29.5.4.         The recipient of any funds for purposes other than foreseen or intended by You.

 

30.       INDEMNITY

30.1.  In addition to what is said elsewhere in these Terms, you agree to indemnify and hold harmless us and our business partners, their officers, employees, representatives and affiliates from and against any and all direct, indirect, incidental, special, punitive or consequential losses, claims, liabilities, damages, losses, fines, penalties and expenses (including, but not limited to, legal and other professional fees) arising from or in any way related to:

30.1.1.     your use of the Scan to Pay Service;

30.1.2.     your (or anyone using your Scan to Pay Wallet's) breach of these Terms or applicable law;

30.1.3.     your negligence or wilful misconduct; or

30.1.4.     your violation of any third party's rights, including without limitation, any Intellectual Property rights.

 

31.       LIMITATION OF LIABILITY

31.1.  To the fullest extent permissible by law, under no circumstances whatsoever, including as a result of Our negligent acts or omissions or those of Our servants or agents or other persons for whom in law We may be liable ('Others') -

31.1.1.     shall We, or any Others be liable for any direct, indirect, special, or consequential loss or damages (for instance, loss that is too far removed from or not foreseen by the parties as being connected to this Agreement) howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), sustained by You, servants or agents, including any loss of profits, loss of revenue, loss of operation time, corruption or loss of information and/or loss of contracts;

31.1.2.     shall We be liable for loss of Your data regardless of how such loss is occasioned. You acknowledge that back-up of such data is Your responsibility and can be undertaken easily so as to recover any data which is lost. Accordingly, You indemnify and hold Us harmless against any losses, damage and damages incurred by You arising directly or indirectly out of or in connection with the loss of any of Your data.

31.2.  We shall not be liable to You for any damage or loss, penalties, fines, loss of business, economic loss that You may suffer as a result of the following:

31.2.1.     This Agreement;

31.2.2.     Scan to Pay, including your use of Scan to Pay in combination with any Third Party Site;

31.2.3.     someone finding out your PIN;

31.2.4.     any defect, fault, malfunction and/or delay in your Device hardware and/or software;

31.2.5.     any technical or other problem (interruption, malfunction, downtime or other failure) that affects the Scan to Pay Service, our banking system, a third-party system or any part of any database for any reason;

31.2.6.     any dispute in respect of a Transaction (including any errors in the descriptions of the products or services that are offered or the actions or inactions of any Scan to Pay Merchant);

31.2.7.     your use of your Device, including any lack of attention to your surroundings resulting from such use;

31.2.8.     any Personal Information or other data that is directly or indirectly lost or damaged because of technical problems, power failures, unlawful acts (such as data theft), any harmful computer program or virus, or your own negligence;

31.2.9.     any event that we have no control over, such as you having sufficient funds on your Card, your network's coverage or availability or your Device's capability or capacity;

31.2.10.  any person gaining unauthorised access to any information or data;

31.2.11.  incorrect information being given to any person;

31.2.12.  us processing any information incorrectly.

31.3.  To the fullest extent permissible by law (including consumer laws, where applicable) Our or any Others' (in whose favour this constitutes a benefit for a third party) maximum aggregate liability for any direct loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by You, shall not exceed an amount equivalent to the value held in Your Wallet or Account at the time the cause of action arises.

 

32.       BREACH / TERMINATION / SUSPENSION

32.1.  You may deregister from using the Scan to Pay Service at any time.

32.2.  We reserve Our right to cancel this Agreement and/or restrict, suspend or cancel Your Wallet/Account and/or use of the Service's where We reasonably suspect that Your Wallet/Account has been or is being used in relation to any fraud, unauthorised or improper conduct, or criminal or otherwise illegal activity.

32.3.  We may furthermore immediately terminate or suspend your use of the Scan to Pay Service at any time without notice. This may include, without limitation, if:

32.3.1.     we suspect that we are exposed to any risk through your use of the Scan to Pay Service;

32.3.2.     we are required by law to do so or so ordered by a competent court;

32.3.3.     we suspect that your Device, SIM card or your PIN is being used, has been used or is likely to be used in an unlawful or unauthorised manner;

32.3.4.     we suspect that you are attempting to compromise or interfere with our Scan to Pay Service systems; or

32.3.5.     we suspect that your use of the Scan to Pay Service violates any of these Terms or is in contravention of any applicable law or regulations. 

32.4.  Where we terminate your use of the Scan to Pay Service, all rights granted to you in respect of the Scan to Pay Service will cease immediately.

32.5.  Should You breach (or should You permit any third party making use of the Services via Your Wallet or Account to engage in conduct that would constitute a breach if performed by You) any provision or term of this Agreement and fail to remedy the breach within 7 (seven) days of receipt of notice requiring You to do so and warning that if it is not so remedied that We  may exercise Our rights in terms of this clause, then We shall be entitled without further notice to You, and in addition to any other remedy available to Us in law or under this Agreement, to:

32.5.1.     cancel this Agreement; or

32.5.2.     claim specific performance of any obligation whether or not the due date for performance has arrived; or

32.5.3.     deactivate or suspend Your Wallet/Account or access to the Services, in either event without prejudice to Our right to claim damages.

32.6.  In such event We will, unless We are prohibited from doing so in law, to take reasonable steps to provide You with notice of any decision to cancel this Agreement and/or restrict, suspend or cancel Your Wallet and/or use of the Services. We may be prohibited in law from cashing-out the balance of Your Wallet (if any), where We have cancelled this Agreement, and/or suspended or cancelled Your Wallet/Account and/or use of the Services in terms of this clause.

32.7.  If a technical problem causes any Services (including access to the Services) to become unavailable, any system outage or any Wallet errors, We may temporarily suspend access to the Services until the problem is resolved. In which event We will not be held responsible for any losses caused during said down time or system outage.

32.8.  If you breach or otherwise default on any obligations in terms of the Agreement, We will give You 7 (Seven) days written notice to remedy the breach. If You fail to comply within 7 (Seven) days, or if You are unable to remedy the breach, we may either suspend the Service or terminate the Agreement without further notice. Alternatively, We may insist on immediate performance and/or payment from You of all obligations or amounts You owe Us under the Agreement, without prejudice to any other legal rights we may have, including the right to claim damages.

32.9.  If You are non-compliant with any Bank or Card Scheme rules, act illegally in any manner, do not pay any amount as specified by Us, submit high levels of fraudulent Transactions or Chargebacks, breach any Intellectual Property Rights or protection of Personal Information obligations as set out in the Agreement, commit any act of insolvency or effect a compromise or composition with creditors, or if a creditor institutes insolvency proceedings against You, We will have the right to suspend the Service and/or terminate the Agreement immediately.  

 

33.       GOVERNING LAW, JURISDICTION AND LANGUAGE

33.1.  This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.

33.2.  The parties hereby irrevocably submit to the jurisdiction of the High Court of South Africa (South Gauteng High Court, Johannesburg) (or any successor to that court) in respect of all and any matters arising out of or in connection with this Agreement.

33.3.  This Agreement has been concluded in the English language. In the case of any conflict between the English and any other translation version, the English version shall prevail.

 

34.       ADDRESS FOR NOTICES AND LEGAL PROCEEDINGS

34.1.  We choose the registered address at First Floor Golfers Corner, Design Quarter, William Nicol, Gauteng and legal@ukheshe.com  as the addresses where any legal document or notice must be served or delivered to us.

34.2.  We will send any legal documents or notices to you at the address we have for you on our records.

34.3.  We may send any other written communication to your street, postal or e-mail address, or through the App message system.  We will regard a communication sent by e-mail as having been received by you one day after it was sent.

34.4.  Any legal document of notice to be served in legal proceedings must be written on paper.  The relevant provisions of the Electronic Communications and Transactions Act 35 of 2002 do not apply to these legal documents or notices.

 

35.       CIRCUMSTANCES BEYOND OUR CONTROL

35.1.  We shall be under no liability to You in respect of anything which, in the absence of this provision might constitute a breach of this Agreement, arising by reason of circumstances beyond Our reasonable control, even if We should have foreseen the possibility of the occurrence or existence of those circumstances.

35.2.  For the purposes hereof, this includes acts or omissions of any government, government agency, provincial or local or similar authority, civil strife, riots, pandemics, sabotage, insurrection, acts of war or public enemy, illegal strikes, combination of workmen, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), prohibition of exports, inability on Our part due to such circumstances to obtain goods or services from its suppliers (including telecommunications suppliers and Selected Merchants), rationing of supplies, flood, storm, fire or any other circumstances (without limitation) beyond the reasonable control of the party claiming 'Force Majeure' (which means unforeseeable circumstances that prevents someone from fulfilling a contract) and comprehended in the term Force Majeure.

 

36.       WHOLE AGREEMENT, AMENDMENTS AND UPDATES

36.1.  This Agreement constitutes the whole agreement between the parties relating to its subject matter, supersedes all prior or oral or written communications and representations with respect to the Services and the Software, and, prevails over any conflicting or additional terms in any document or other communication between the parties leading up to and during the term of this Agreement.

36.2.  We may amend this Agreement from time to time without prior notice to You. Except where We specifically stated that We will provide You with prior notice in this Agreement.  

36.3.  You should regularly view this page to ensure that You are satisfied with any changes. If You are not satisfied with the revisions made, You should stop using the Account or Wallet service immediately.

36.4.  To the extent permissible by law, We shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.

 

37.       SEVERABILITY

37.1.  Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent thereof and shall be treated as not written and severed from the balance of this Agreement, without invalidating the remaining provisions.

 

38.  INTERPRETATION

38.1.  In this Agreement:

38.1.1.     clause headings are for convenience and reference only and shall not be used in interpreting, modifying or amplifying its terms or clauses;

38.1.2.     unless a contrary intention clearly appears, words importing any one gender include the other two, the singular include the plural and vice versa, and, natural persons include created entities (corporate or unincorporate) and the state and vice versa;

38.1.3.     any reference to an enactment is to that enactment as at the date of acceptance of this Agreement and as amended or re-enacted from time to time;

38.1.4.     if a provision in a definition confers rights or imposes obligations on a party, effect shall be given to it as if it was a substantive provision in the body of the Agreement, notwithstanding that it is only in a definition;

38.1.5.     any reference to 'days' shall mean business / working days and shall be calculated by including the first day excluding the last day - unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next day which is not a Saturday, Sunday or public holiday;

38.1.6.     its termination shall not affect those terms as expressly provide that they will operate after termination or which of necessity must continue to have effect after termination, notwithstanding that the clauses themselves do not expressly provide for this;

38.1.7.     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, and You agree not to use or rely upon that rule in any proceedings in relation to this Agreement;

38.1.8.     any reference to a party to it shall, if such party is liquidated or sequestrated, be applicable also to and binding on that party's liquidator or trustee;

38.1.9.     the words 'include', 'including' and 'in particular' shall be construed as being by way of example or emphasis only and shall not be construed nor take effect as limiting the generality of any preceding words;

38.1.10.  the words 'other' and 'otherwise' shall not be construed as being of the same kind or nature as any preceding words where a wider construction is possible.

 

39.       CONTACT

39.1.  Should You have any questions or concerns regarding this Agreement, the Interface, or the Services, please consider the information provided at www.ukheshe.com, alternatively contact us at support@scantopay.io .