GRAZER TERMS OF USE

CUSTOMER/USER terms

  1. Contractual Relationship

These Terms of Use (“Terms”) govern the access or use by you, an individual of the applications, websites, content and Intellectual Property rights (“WAZUPA Services”) made available by Online Trade and Investments (Pty) Ltd, a proprietary limited company established in the Republic of South Africa, whose offices are situated at First Floor, 11 Crescent Drive, Melrose Arch, registered under registration number 2016/063136/07 (“THE COMPANY”). Further these Terms will set out THE COMPANY’s relationship and agreement with you in regards to THE COMPANY protecting its’ interests and  itself.  Also these Terms will govern the relationship that you will have including but not limited to the Chef, Supplier, Seller and/or Maker (“Merchant “) in regards to the Merchants products, services and/or goods (“Merchant Products”) offered by the Merchant.

Your access and use of the WAZUPA Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and THE COMPANY.  A legally binding purchase agreement is also entered between you and the Merchant.  These Terms expressly supersede any and all prior agreements or arrangements with you. THE COMPANY may immediately terminate these Terms or any WAZUPA Services with respect to you, or generally cease offering or deny access to the WAZUPA Services or any portion thereof, at any time for any reason.

Supplemental terms may apply to certain WAZUPA Services and Merchants Products, including but not limited to Terms for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable WAZUPA Services and Merchants Products. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable WAZUPA Services and Merchants Products. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable WAZUPA Services and Merchants Products.

THE COMPANY and the Merchant may amend the Terms related to the WAZUPA Services and Merchants Products from time to time. Amendments will be effective upon THE COMPANY’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service and Merchants Products. Your continued access or use of the WAZUPA Services and your purchase of the Merchants Products after such posting constitutes your consent to be bound by the Terms, as amended.

Our collection and use of personal information in connection with the WAZUPA Services and the Merchants Products is further provided in THE COMPANY’s Privacy Policy, which Privacy Policy is set out hereunder.  THE COMPANY may provide if required legally any necessary information (including your contact information) and/or if there is a complaint, dispute or conflict, which may include an incident, death, accident and/or damages  involving you and a Merchant or third party delivery agent and such information or data is necessary to resolve the complaint, dispute or conflict.

  1. WAZUPA Services

WAZUPA Services constitute a technology platform that enables users of THE COMPANY’s mobile applications or websites to transact with the Merchant’s utilising THE COMPANY. This technology platform offered by THE COMPANY provides to you a platform to purchase Merchants Products, including collection or delivery, which delivery may include independent third party delivery agents. YOU ACKNOWLEDGE THAT THE COMPANY DOES NOT PROVIDE MERCHANTS PRODUCTS, COLLECTION OR DELIVERY OF THE MERCHANTS PRODUCTS AND FURTHER DOES NOT FUNCTION AS A THIRD PARTY DELIVERY AGENT AND THAT ALL SUCH MERCHANTS PRODUCTS ARE PROVIDED BY THE MERCHANT OR INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY THE COMPANY AND FURTHER ARE NOT THE COMPANY’S AFFILIATES.

License.

Subject to your compliance with these Terms, THE COMPANY grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferrable license to: (i) access and use the WAZUPA Services on your personal device; and (ii) access and use any content, information and related materials that may be made available through the WAZUPA Services. Any rights not expressly granted herein are reserved by THE COMPANY.

Restrictions.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the WAZUPA Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the WAZUPA Services except as expressly permitted by THE COMPANY in writing; (iii) decompile, reverse engineer or disassemble the WAZUPA Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the WAZUPA Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the WAZUPA Services or unduly burdening or hindering the operation and/or functionality of any aspect of the WAZUPA Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the WAZUPA Services or its related systems or networks.

Third Party Services, providers and Content.

The WAZUPA Services may be made available or accessed by you, you utilising a third party service provider and content (including advertising) that THE COMPANY does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services, service provider and/or content.  THE COMPANY does not endorse such third party services and content and in no event shall THE COMPANY be responsible or liable for any services of the Merchants, third parties, including but not limited to Paygate, Uber, 1Fetch,  Apple Inc., Google Inc., Microsoft Corporation or BlackBerry Limited and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this agreement if you access the WAZUPA Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this agreement and are not responsible for the provision or support of the WAZUPA Services in any manner. Your access to the WAZUPA Services using these devices or third party service providers is subject to terms set forth in the applicable third party beneficiary’s terms of service.

Ownership.

WAZUPA Services and all rights therein are and shall remain THE COMPANY’s property or the Merchants. Neither these Terms nor your use of the WAZUPA Services convey or grant to you any rights: (i) in or related to the WAZUPA Services except for the limited license granted above; or (ii) to use or reference in any manner THE COMPANY’s names, logos, products and services names, trademarks or services marks or those of the Merchants.

Risk and ownership in the Merchants Products shall pass from the Merchant to you on payment to the Merchant in respect of the Merchants Products (i.e. after the Merchant has received his/her/its PIN NUMBER.

INTELLECTUAL PROPERTY.

These WAZUPA Services contains copyright and other intellectual property including logos and other graphics and multimedia works which are the property of THE COMPANY.  Your e-mail address/es, names, telephone numbers, identity numbers and any other personal details provided by you for these WAZUPA Services may not be incorporated into any database used for electronic marketing or similar purposes. You agree however that THE COMPANY may utilise your details in regards to various promotions, voucher opportunities and/or marketing of THE COMPANY and/or its’ Merchants.  You will be afforded the opportunity to utilise THE COMPANY’s intellectual property, only after THE COMPANY has afforded you written approval to do so, provided that any reproduction of THE COMPANY’s proprietary material from the WAZUPA Services or a portion of it, must acknowledge THE COMPANY as the source of the material and THE COMPANY’s contact details must be reflected accordingly and nothing in regards to the WAZUPA Services should be construed as granting any license or right to use any trademark without THE COMPANY’s prior written permission.

  1. Your Use of the WAZUPA Services

User/Customer Profile/s.

In order to use most aspects of the WAZUPA Services, you must register for and maintain a Customer Profile on the WAZUPA Services (“Customer Profile”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18 years of age). Customer Profile registration requires you to submit to THE COMPANY certain personal information, such as your name, address, mobile and phone number as well as at least one valid payment method (either a credit card or accepted payment method). You agree to maintain accurate, complete, and up-to-date information in your Customer Profile. Your failure to maintain accurate, complete, and up-to-date Customer Profile information, including having an invalid or expired payment method on file, may result in your inability to access and use the WAZUPA Services offered by THE COMPANY and/or your inability to purchase Merchant Products. You are responsible for all transactions that occur under your Customer Profile, and you agree to maintain the security and secrecy of your Customer Profile username and password at all times. THE COMPANY may refuse to provide the WAZUPA Services and/or the Merchants Products to you, if THE COMPANY is unable to verify any information that you provide to us.

You agree that the following actions shall be material breaches of these Terms:

  • signing in as, or pretending to be, another person;
  • transmitting material that violates, or could violate, the intellectual property rights of others or the privacy of others;
  • using the WAZUPA Services in a way that is intended to harm, or could result in harm to other Users/Customers of the WAZUPA Services;
  • gathering information about other Users/Customers, Merchant’s without obtaining other Users/Customer’s , Merchant’s prior written consent.

You also agree that any use of your Customer Profile username and password shall be regarded as if you were the person using such WAZUPA Services and purchasing such Merchants Products.

CUSTOMER/USER Requirements and Conduct.

The WAZUPA Services are not available for use by persons under the age of 18. You may not authorize third parties to use your Customer Profile, and you may not allow persons under the age of 18 to receive Merchants Products from Merchants unless you or a person over the age of 18 years is present and available to collect or receive delivery of the Merchants Products from the Merchant. You may not assign or otherwise transfer your Customer Profile to any other person or entity. You agree to comply with all applicable laws when using the Service and you may only use the WAZUPA Services for lawful purposes. You will not, in your use of the WAZUPA Services, cause nuisance, annoyance, inconvenience, or property damage, whether to THE COMPANY, the Merchant or any other third party/ies. You will be required to give the PIN NUMBER that was issued to you by THE COMPANY on payment, to the Merchant on receipt of the Merchants products.

Messaging.

By creating a Customer Profile, you agree that THE COMPANY and the Merchant may send you messages as part of the normal business operation of your use of the WAZUPA Services.

Promotional Codes.

THE COMPANY may, at THE COMPANY’s sole discretion, create promotional codes that may be redeemed for Customer Profile credit, or other features or benefits related to the WAZUPA Services and/or a Merchants Products, subject to any additional terms that THE COMPANY establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by THE COMPANY; (iii) may be disabled by THE COMPANY at any time for any reason without liability to THE COMPANY; (iv) may only be used pursuant to the specific terms that THE COMPANY establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. THE COMPANY reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other CUSTOMER/USER in the event that THE COMPANY determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the WAZUPA Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the WAZUPA Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the WAZUPA Services and any updates thereto. THE COMPANY does not guarantee that WAZUPA Services, or any portion thereof, will function on any particular hardware or devices. In addition, WAZUPA Services may be subject to transactions cancelled, malfunctions and delays inherent in the use of the Internet and electronic communications.

DELIVERY/ collection POLICY.

Should you elect the delivery option.  The Merchants Products ordered by you will either be delivered by the Merchant or a third party delivery company, for which you will be charged a delivery fee.

You must select the physical address to where the order must be delivered.  On delivery or collection of the Merchants Products, you will be required to give to the Merchant the PIN NUMBER to confirm receipt of the delivery or collection of the Merchants Products.  The CUSTOMER/USER may send or give the PIN NUMBER utilising WAZUPA Services or any other means to the Merchant.  By sending or giving the PIN NUMBER you relinquish any claim that you did not receive the Merchants products.

Should you not give the PIN NUMBER to the Merchant, however the Merchant provides proof to THE COMPANY that the Merchants Products where delivered, THE COMPANY has the sole discretion to make payment to the Merchant.

You agree that you will have no further claim against THE COMPANY in regards to the payment made to the merchant.

  1. Payment, RETURNS and security policy

You understand that you will make payment in terms of a Retail Selling Price for Merchants Products including delivery (if applicable) that you purchase from a Merchant (“Charges”).  THE COMPANY will facilitate your payment of the Charges to the Merchant, by you utilising THE COMPANY payment platform, as the Merchant’s payment collection agent. Payments of the Charges shall be considered the same as payment made directly by you to the Merchant.  Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by THE COMPANY.

THE COMPANY will facilitate this payment by utilising your preferred payment method that you will set out in your Customer Profile. If your primary Customer Profile payment method has expired, is invalid or otherwise not able to be charged, you agree that THE COMPANY may, as the Merchant’s payment collection agent, utilise a secondary payment method that you have set out in your Customer Profile.

The Merchant reserves the right to increase or decrease the Merchants Products price and/or remove or alter any the Merchants Products at any time in the Merchant’s sole discretion. 

THE COMPANY may from time to time provide certain CUSTOMER/USERs with promotional offers and discounts that may result in different amounts charged for the same or similar Merchants Products obtained through the use of the WAZUPA Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the WAZUPA Services and/or the Charges applied to you.

THE COMPANY does not designate any portion of your payment as a tip or gratuity to the Merchant or third party service provider. After you have received the Merchants Products obtained through the WAZUPA Services, you will have the opportunity to rate your experience, set out comments and/or leave additional feedback about your Merchant experience.

THE COMPANY’s order process will provide you with an opportunity to review the entire transaction, to correct any mistakes and to withdraw from the transaction before finally submitting your payment. Please make sure that the order details are correct before submitting the payment, since after payment has been made the order cannot be rectified and the payment cannot be reversed. 

Following receipt of your order, THE COMPANY will send you a confirmation notice confirming acceptance or rejection of your order from the Merchant.

Please note that while THE COMPANY will endevour to send you various notifications, THE COMPANY cannot guarantee that such notifications will be received by you, nor that, if such notification is received by you, that such notifications will be legible and uncorrupted. Your failure to receive such confirmation notice will not affect the validity of the agreement concluded between you and THE COMPANY.

If payments made by you in regards to the Charges are not claimed within 90 (ninety) days by you, regardless of whether the Merchant has supplied you with the Merchants Products or not, these payments will be utilised by THE COMPANY to defray expenses.

THE COMPANY cannot be held liable for any changes, errors or omissions, including but not limited to pricing.

The prices indicated by the Merchant, is the price that you pay for the day that the Merchant Products are offered.

The CUSTOMER/USER will comply with all the tax requirements of the CUSTOMER/USER’s particular country, and the CUSTOMER/USER indemnifies THE COMPANY in regards to any liability that the CUSTOMER/USER has in regards to the tax requirements of the CUSTOMER/USER’s particular country. You agree to comply with all the necessary legal, regulatory and tax requirements in this regard.

RETURNS POLICY.

The CUSTOMER/USER must deal directly with the Merchant in regards to returns of the Merchants Products within 24 hours.

Should the CUSTOMER/USER and Merchant not reach an amicable resolution THE COMPANY will endevour to resolve the dispute reasonably and fairly between the parties within 48 hours.

The CUSTOMER/USER is obligated to provide a photograph or description clearly showing the defect/s/damage/s in regards to the Merchant Products. Such a photograph can be furnished to the Merchant within 24 hours and 48 hours thereafter to THE COMPANY through email to info@wazupa.com. THE COMPANY has the rights to investigate each case and the final decision will vest with THE COMPANY.

Should the Merchant agree that the CUSTOMER/USER return Merchants’ Products, the CUSTOMER/USER shall have the following option:

“Refund” - In the case of a Refund and after THE COMPANY has agreed to refund the CUSTOMER/USER at THE COMPANY’s sole discretion, THE COMPANY shall refund the amount paid by the CUSTOMER/USER directly to the account from which the payment was made within 10 working days from the date the CUSTOMER/USER received the Merchants Products.

Subject to the provisions of returns policy, the CUSTOMER/USER hereby agrees and understands that the CUSTOMER/USER can return the Merchant’s Products purchased through WAZUPA Services to the Merchant and the Merchant’s Products should meet the following specifications:

  • have all its original packaging and accessories, including the box, manufacturer's packaging if any, warranty cards, authenticity labels and all other items originally included with the Merchant’s Products delivered.
  • In the event that the Merchant’s Products received by the CUSTOMER/USER do not meet the specifications above or any of the below specifications, then the Merchant’s Products will not be refunded provided the:
  1. Merchant Products is damaged due to use or misuse.
  2. Merchant Products have been used.
  3. Merchant Products have been tampered with.
  4. The Merchant shall have the discretion to waive these specifications set out above.

CUSTOMER/USER agrees to assist and cooperate fully to return the Merchant’s Products with its manuals, booklets, warranty card, accessories, freebies, if any, and packing materials or any other things which were delivered to the CUSTOMER/USER along with the Merchant’s Products being returned.

In case of any return requests arising after 24 hours of delivery of the Merchant’s Products, such requests will not be entertained. 

security policy.

THE COMPANY will endeavour to ensure that sensitive payment information (such as your credit card details) provided to THE COMPANY is suitably protected. For such purposes THE COMPANY will implement reasonable security measures to protect such information. However THE COMPANY does not guarantee the absolute security of any information you transmits to THE COMPANY, Paygate and/or any other third party service provider or that the information that is transmitted by you and disclaims any liability arising in connection with any unauthorised disclosure of such information.

If you receives an unsolicited e-mail that appears to be from THE COMPANY that requests you to provide personal information (such as your credit card number, user name, or password), or that asks you to verify or confirm THE COMPANY / user information or any personal information by clicking on a link, it is most likely that the e-mail was sent by a "phisher" or "spoofer."

THE COMPANY will never ask for this type of information in an e-mail, and THE COMPANY strongly recommends that you do not respond to these e-mails and that you do not click on the link. Responding to “phishing” places you and your personal information at risk. THE COMPANY cannot be responsible for any consequences resulting from your response to any email sent by a “phisher” or a “spoofer”.
5. Disclaimers; Limitation of Liability; Indemnity.

DISCLAIMER.

WAZUPA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, THE COMPANY MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE WAZUPA SERVICES AND/OR ANY MERCHANTS PRODUCTS REQUESTED THROUGH THE USE OF WAZUPA SERVICES, OR THAT WAZUPA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE WAZUPA SERVICES, ITS CONTENTS, THE ACCURACY THEREOF, OR ANY WARRANTIES OR REPRESENTATIONS REGARDING THE EFFECTIVENESS OF ANY SECURITY OR ENCRYPTION FACILITIES OR WITH REGARD TO THE AVAILABILITY OF MERCHANTS PRODUCTS AND/OR DELIVERY ARRANGEMENTS AND TIMES.  THE COMPANY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THE MERCHANT’S PRODUCTS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WAZUPA SERVICES, AND ANYMERCHANTS REEQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

THE MERCHANTS OFFERED BY THE MERCHANT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE MERCHANT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, THE MERCHANT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE MERCHANTS PRODUCTS.  YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF ANY MERCHANTS PRODUCTS REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF INFORMATION, MERCHANTS PRODUCTS AND FURTHER DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF WAZUPAS SERVICE AND/OR MERCHANTS PRODUCTS.

THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY WAZUPA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE WAZUPA SERVICES THAT ARE AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. SAVE AS EXPRESSLY SET OUT HEREIN, THE COMPANY SHALL UNDER NO CIRCUMSTANCES WHATSOEVER BE LIABLE TO YOU, INCLUDING WITHOUT LIMITATION, AS A RESULT OF OR IN CONNECTION WITH THE COMPANY’S NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) ACTS OR OMISSIONS OR THOSE OF THE COMPANY’S EMPLOYEES, AGENTS OR DESIGNEES, MERCHANTS OR OTHER PERSONS FOR WHOM IN LAW THE COMPANY MAY BE LIABLE (IN WHOSE FAVOUR THIS CONSTITUTES A CONTRACT OR UNDERTAKING FOR THEIR BENEFIT), FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE 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, THE RECIPIENT OF THE MERCHANTS PRODUCTS, OR ANY OTHER PERSON ARISING FROM OR AS A RESULT OF ANY PURCHASE AGREEMENT CONCLUDED IN TERMS OF THESE TERMS, THE DELIVERY, NON-DELIVERY, INCORRECT, ERRONEOUS OR LATE DELIVERY, THE USE, POSSESSION OR CONSUMPTION OF THE MERCHANTS PRODUCTS.

LIMITATION OF LIABILITY.

THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS, REPRESENTATIVES, AFFILIATES AND/OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WHETHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, DEATH OR DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF WAZUPA SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE COMPANY ACTS NEGLIGENTLY IN THIS REGARD. THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS, REPRESENTATIVES, AFFILIATES AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON WAZUPA SERVICES OR YOUR INABILITY TO ACCESS OR USE THE WAZUPA SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY MERCHANT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS, REPRESENTATIVES, AFFILIATES AND SUPPLIERS SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND THE COMPANY’S REASONABLE CONTROL.

THE COMPANY’S SERVICES MAY BE USED BY YOU TO REQUEST MERCHANTS PRODUCTS AND SCHEDULE A COLLECTION AND/OR A DELIVERY, BUT YOU AGREE THAT THE COMPANY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY COLLECTION AND/OR DELIVERY SERVICES PROVIDED TO YOU BY MERCHANTS OR A THIRD PARTY SERVICE PROVIDER OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CUSTOMER/USER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Indemnity.

You agree to indemnify and hold THE COMPANY and its and its officers, directors, employees, designee,  agents, representatives, affiliates and suppliers harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (i) your use of WAZUPA Services or Merchant’s products obtained through your use of the WAZUPA Services; (ii) your breach or violation of any of these Terms; (iii) THE COMPANY’s use of your CUSTOMER/USER Content; or (iv) your violation of the rights of any third party, including Merchants.

  1. Governing Law AND DISPUTE RESOLUTION.

Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of the Republic of South Africa. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the WAZUPA Services or these Terms, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to an expert.  Such meeting will be held in Johannesburg with only the Parties and their legal representatives present.

It being the intention that the meeting will, where possible, be held and concluded within ten working days after it has been demanded. The expert will be, if the matter in dispute is principally:

  1. A) a legal matter, a practicing advocate or practicing attorney of not less than ten (10) years standing;
  2. B) an accounting matter, a practicing chartered accountant of not less than ten (10) years standing; and
  3. C) any other matter, an independent person agreed upon between the Parties.

The expert will have the fullest and freest discretion with regard to the proceedings, and her/his/its award shall be final and binding on the Parties to the dispute.  Furthermore the expert:

-               may dispense wholly or in part with formal submissions or pleadings;

-               will determine the applicable procedure, taking into account the fact that it is intended that the dispute will be determined as quickly                 as possible and shall not be bound by strict rules of evidence and shall be entitled to take equity into account;

-               will include such order as to costs as he/she/it deems just.

The successful party to the meeting will be entitled to have the award made an Order of Court of competent jurisdiction.

The Parties by signing this Agreement consent to any dispute between them being determined as provided for in this clause.

The dispute resolution clause shall not preclude any of the Parties from obtaining relief by way of motion proceedings on an urgent basis from a court of competent jurisdiction.

The dispute resolution clause constitutes an irrevocable consent by the Parties to any proceedings and no party will be entitled to withdraw there from or to claim in such proceedings that it is not bound by the dispute resolution clause.

The dispute resolution clause is severable from the rest of the Agreement and remains in effect even if the Agreement is terminated for any reason.

  1. Other Provisions

Claims of Copyright Infringement.

Claims of copyright infringement should be sent to THE COMPANY at info@wazupa.com. Please visit THE COMPANY’s web page at www.wazupa.com for the designated address and additional information.

Notices.
THE COMPANY may give notice by means of a general notice on WAZUPA Services, by electronic mail to your email address on your Customer Profile, or by written communication sent to your address as set forth in your Customer Profile.

THE COMPANY hereby selects info@wazupa.com as THE COMPANY’s address for the service of all formal notices and legal processes in connection with these Terms (“nominated address”). THE COMPANY may change this address from time to time by updating these Terms.

For the purposes of the Electronic and Communications Act 25 of 2005, THE COMPANY’s information is as follows:

Full Name: Online Trade and Investments (Pty) Ltd, a proprietary liability company registered in the Republic of South Africa, registration number 2016/063136/07;

Physical address: First Floor, 11 Crescent Drive, Melrose Arch

Website address: www.wazupa.com, email address: info@wazupa.com;

Nature of business: THE COMPANY constitutes a technology marketing and payment platform that enables you, the CUSTOMERS/USER of WAZUPA’s Services to transact with Merchant’s and to purchase Merchants Products.

General.

You may not assign or transfer these Terms in whole or in part without THE COMPANY’s prior written approval. You give your approval to THE COMPANY for it to assign or transfer these Terms in whole or in part, including to: (i) a subsidiary or affiliate; (ii) an acquirer of THE COMPANY’s equity, business or assets; or (iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you and THE COMPANY.

If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. Any indulgence or extension of time granted by THE COMPANY to you shall not be construed as a waiver or variation of any of THE COMPANY’s rights or remedies.  These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”

PRIVACY policy

THE COMPANY collects information the WAZUPA Services and through other interactions and communications you have with THE COMPANY. The private information required for executing the orders placed on the WAZUPA Services will be kept in the strictest confidence by THE COMPANY and not sold or made known to third parties.

Scope and Application

This Privacy Policy (“Policy") applies to you (“Users”) who utilise WAZUPA Services to request the Merchant’s Products on THE COMPANY’s technology platform.

Information You Provide to Us

THE COMPANY collects information you provide directly to THE COMPANY, such as when you create or modify your account, request on-demand services, contact customer support, or otherwise communicate with us. This information may include but not be limited to: name, surname, email, phone number, home address, profile picture, credit card information, items requested (for delivery services), delivery notes, and other information you choose to provide.

Information THE COMPANY Collects

  • When you use WAZUPA Services, THE COMPANY collect information about you in the following categories:
    Location: When you use the WAZUPA Services for delivery, THE COMPANY collect precise location address for the delivery from the WAZUPA Services used by you, the User. If you permit WAZUPA Services, THE COMPANY may also collect the precise location of your device when the app is running in the foreground or background. WAZUPA Services may also derive your approximate location from your IP address.
  • Transaction: THE COMPANY collects transaction details related to your use of our WAZUPA Services, including but not limited to the type of service requested, date and time the service was to be provided, the amount charged, delivery or collection (if applicable), and other related transaction details. Additionally, if someone uses your Profile username and password, THE COMPANY will associate you with the person with that Profile username and password.
  • Usage and Preference: THE COMPANY collects information about how you interact with our WAZUPA Services, preferences expressed, and settings chosen. In some cases THE COMPANY does this through Cookie Policy set out hereunder, pixel tags, and similar technologies that create and maintain unique identifiers.
  • Device: THE COMPANY may collect information about your mobile device, including but not limited to the hardware model, operating system and version, software and file names and versions, preferred language, unique device identifier, advertising identifiers, serial number, device motion information and mobile network information.
  • Call and SMS Data: WAZUPA Services facilitates communications between Users and Merchants. In connection with facilitating WAZUPA Services, THE COMPANY receive call data, including the date and time of the call or SMS message, the parties’ phone numbers, and the content of the SMS message.
  • Log: When you interact with WAZUPA Services, THE COMPANY may collect server logs, which may include information like device IP address, access dates and times, app features or pages viewed, app crashes and other system activity, type of browser, and the third-party site or service you were using before interacting with WAZUPA Services.

Important Information
Most mobile platforms (iOS, Android, etc.) have set out certain types of device data that applications cannot access without your consent. These mobile platforms have different permission systems for obtaining your consent. The IOS platform will alert you the first time the app wants permission to access certain types of data and will let you consent (or not consent) to that request. Android devices will notify you of the permissions that the app seeks before you first use the app, and your use of the app constitutes your consent. To learn about the platform-level permissions that the app seeks, please see our iOS Permissions set out hereunder and our Android Permissions page further set out hereunder. Sometimes these permissions require more explanation than the platforms themselves provide, and the permissions THE COMPANY request will change over time, so THE COMPANY’s created these pages to serve as authoritative and up-to-date resources for you. Information THE COMPANY Collects From Other Sources.

THE COMPANY may also receive information from other sources and combine that with information THE COMPANY collects through WAZUPA Services. For example:

If you choose to link, create, or log in to your account with a payment provider (e.g., Google Wallet) or social media service (e.g., Facebook), or if you engage with a separate app or website that uses THE COMPANY’S API (or whose API THE COMPANY use), THE COMPANY may receive information about you or your connections from that third party site or app. 

Use of Information

THE COMPANY may use the information THE COMPANY collects about you to:

  • Inform you of facts or matters relating to your access and use of WAZUPA Services;
  • Inform you about Merchant Products, competitions and special offers through WAZUPA Services;
  • Compile non-personal statistical information about browsing habits, click-patterns and access to WAZUPA Services;
  • Verify your identity when transacting with THE COMPANY;
  • Provide, maintain, and improve WAZUPA Services, including, for example, to facilitate payments, send receipts, provide further Merchant Products you request (and send related information), develop new features, provide customer support to Users, authenticate users, and send Merchant Product updates and administrative messages;
  • Perform internal operations, including, for example, to prevent fraud and abuse of WAZUPA Services; to troubleshoot software bugs and operational problems; to conduct data analysis, testing, and research; and to monitor and analyze usage and activity trends;
  • Send or facilitate communications between you and the Merchant, such as estimated times of delivery, specifications and/or limitations of the Merchant’s Products;
  • Send certain personal information (i.e. your full name, delivery address and contact number) will be disclosed to the Merchant to enable the Merchant to contact you in regards to fulfilling your order correctly and efficiently and/or to facilitate delivery of Merchant Products purchased by you.
  • Send you communications THE COMPANY thinks will be of interest to you, including information about Merchant Products, promotions, news, and events of THE COMPANY and other companies, where permissible and according to local applicable laws; and to process contest, sweepstake, or other promotion entries and fulfill any related awards; Personalize and improve WAZUPA Services, including to provide or recommend features, content, social connections, referrals, and/or advertisements.
  • THE COMPANY may transfer the information described in this Policy to, and process and store it in any country, some countries of which may have less protective data protection laws than the region in which you reside. Where this is the case, THE COMPANY will take reasonably appropriate measures to protect your personal information in accordance with this Policy.

Sharing of Information

THE COMPANY may share the information THE COMPANY collect about you as described in this Policy or as described at the time of collection or sharing, including as follows:

Through Our Services

THE COMPANY may share your information:

  • With Merchants to enable them to provide Merchant Products to you. For example, THE COMPANY shares your name, address, photo (if you provide one) and contact details with the Merchant;
  • With the general public if you submit content in a public forum, such as blog comments, social media posts, or other features of WAZUPA Services that are viewable by the general public;
  • With third parties with whom you choose to let us share information, for example other apps or websites that integrate with THE COMPANY’S API or WAZUPA Services, or those with an API or service with which THE COMPANY integrate; and

Other Important Sharing information

 THE COMPANY may share your information:

  • With THE COMPANY’s subsidiaries and affiliated entities that provide services or conduct data processing, marketing and/or payments on our behalf, or for data centralization and / or logistics purposes;
  • With vendors, consultants, marketing partners, agents and other service providers who need access to such information to carry out work on THE COMPANY’s behalf;
  • In response to a request for information by a competent authority if THE COMPANY believes its’ disclosure is in accordance with, or is otherwise required by, any applicable law, regulation, or legal process;
  • With law enforcement officials, government authorities, or other third parties if THE COMPANY believes its’ actions are inconsistent with our User agreement or to protect the rights, property, or safety THE COMPANY or others;
  • In connection with, or during negotiations of, any merger, sale of company assets, consolidation or restructuring, financing, or acquisition of all or a portion of our business by or into another company;
  • If THE COMPANY otherwise notifies you and you consent to the sharing;
  • In an aggregated and/or anonymized form which cannot reasonably be used to identify you;
  • To compile and use information that does not relate to any specific individual;

OWNERSHIP

THE COMPANY owns and retains all rights to non-personal statistical information collected and compiled by THE COMPANY;
THE COMPANY owns and retains all rights to non-personal statistical information collected and compiled by THE COMPANY online.

SECURITY

THE COMPANY cannot be held responsible for security breaches occurring on your electronic devices (mobile device, personal computer or other electronic device used to use and/or browse WAZUPA Services), which may result due to the lack of adequate virus protection software or spy-ware that you may inadvertently have installed on your electronic device.

Social Sharing Features

WAZUPA Services may integrate with social sharing features and other related tools which let you share actions you take on WAZUPA Services with other apps, sites, or media, and vice versa. Your use of such features enables the sharing of information with your friends or the public, depending on the settings you establish with the social sharing service. Please refer to the privacy policies of those social sharing services for more information about how they handle the data you provide to or share through them.

Analytics and Advertising Services Provided by Others

We may allow third party providers to provide measurement and analytics services for THE COMPANY, to set out advertisements on our behalf and to track and report on the performance of those advertisements. These entities may use cookies, web beacons, software development kits, and other technologies to identify your device when you visit our site and use WAZUPA Services, as well as when you visit other online sites and services. For more information about these technologies and service providers, please refer to our Cookie Policy.

Your Choices

PROFILE

You may correct your profile information at any time by logging into your profile online or onto the app. If you wish to cancel your profile, please email us at info@wazupa.com. Please note that in some cases THE COMPANY may retain certain information about you as required by law, or for legitimate business purposes to the extent permitted by law. For instance, if you have a standing credit or debt on your account, or if THE COMPANY believe you have committed fraud or violated our Terms and Conditions and/or Terms, THE COMPANY may seek to resolve the issue before deleting your information.

Access Rights

THE COMPANY will reasonably endevour to comply with your requests regarding access, correction, and/or deletion of your personal information in accordance with applicable law.

Location

THE COMPANY requests permission for our applications’ collection of precise location from your device per the permission system used by your mobile operating system. You will have to enable this each time you place an order utilising WAZUPA Services.

Contact

THE COMPANY may also seek permission for WAZUPA Services collection and syncing of certain contact information from your device per the permission system used by your mobile operating system. If you initially permit the collection of this information, IOS users can later disable it by changing the contacts settings on their mobile device. The Android platform does not provide such a setting.

Cookies and advertising

Please refer to our Cookie Policy, set out hereunder for more information about your choices around cookies and related technologies.

Changes to the Policy

THE COMPANY may amend this Policy from time to time. Your continued use of WAZUPA Services after such notice constitutes your consent to the changes. THE COMPANY encourages you to periodically review the Policy for the latest information on our privacy practices.

Contact Us

If you have any questions about this Privacy Policy, please contact us at info@wazupa.com.

COOKIE POLICY

THE COMPANY and our affiliates, subsidiaries, third parties, shareholders and other partners use cookies and other identification technologies on our websites, mobile applications, electronic communications, advertisements, and other online services (collectively, the "WAZUPA Services") for a number of purposes, including: authenticating users, remembering user preferences and settings, determining the popularity of content, delivering and measuring the effectiveness of advertising campaigns, analyzing site traffic and trends, and generally understanding the online behaviors and interests of people who interact with WAZUPA Services. You can read more here about the types of cookies THE COMPANY use, why THE COMPANY use them, and how you can exercise your choices.

Cookies Overview

Cookies are small text files that are stored on your browser or device by other websites, applications, online media, and advertisements. There are different types of cookies. Cookies served by the entity that operates the domain you are visiting are called “first party cookies.” So cookies served by THE COMPANY while you are on www.wazupa.com are first party cookies. Cookies served by companies that are not operating the domain you’re visiting are called “third party cookies.” So, THE COMPANY may allow Google to set a cookie on your browser while you visit www.wazupa.com, and that would be a third party cookie. Cookies may also endure for different periods of time. “Session Cookies” only last only as long as your browser is open. These are deleted automatically once you close your browser. Other cookies are “persistent cookies” meaning that they survive after your browser is closed. For example, they may recognize your device when you re-open your browser and browse the internet again.

Other Identification Technologies

THE COMPANY call this a Cookie Statement, but the statement addresses cookies and other identification technologies THE COMPANY may use or permit on WAZUPA Services. “Pixel tags” (also called beacons or pixels) are small blocks of code installed on (or called by) a webpage, application, or advertisement which can retrieve certain information about your device and browser, including for example: device type, operating system, browser type and version, website visited, time of visit, referring website, IP address, and other similar information, including the small text file (the cookie) that uniquely identifies the device. Pixels provide the means by which third parties can set and read browser cookies from a domain that they do not themselves operate and collect information about visitors to that domain, typically with the permission of the domain owner. “Local storage” refers generally to other places on a browser or device where information can be stored by websites, advertisements, or third parties (such as HTML5 local storage and browser cache). “Software Development Kits” (also called SDKs) function like pixels and cookies, but operate in the mobile application context where pixels and cookies cannot always function. The primary application developer can install pieces of code the SDK) from partners in the application, and thereby allow the partner to collect certain information about user interaction with the application and information about the user device and network information.

Your Choices

You have the right to choose whether or not to accept cookies. However, they are an important part of how WAZUPA Services work, so you should be aware that if you choose to refuse or remove cookies, this could affect the availability and functionality of WAZUPA Services.
Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies. To do so, please follow the instructions provided by your browser which are usually located within the "Help" or “Preferences” menu. Some third parties also provide the ability to refuse their cookies directly by clicking on an opt-out link, and THE COMPANY have indicated where this is possible in the table above.

Removing or rejecting browser cookies does not necessarily affect third-party flash cookies which may be used by us or our partners in connection with WAZUPA Services.

The following table sets out the different categories of cookies that WAZUPA Services use and why THE COMPANY use them. The lists of third party cookie providers are intended merely as illustrative not comprehensive.

Type of Cookie

Purpose

Who Serves (for example)

Authentication Cookies

These cookies (including local storage and similar technologies) tell us when you’re logged in, so THE COMPANY can show you the appropriate experience and features such as your profile and ordering history.

  • WAZUPA Services

Security and site integrity cookies

THE COMPANY use these cookies to support or enable security features to help keep WAZUPA Services and THE COMPANY Services safe and secure. For example, they enable us to remember when you are logged into a secure area and help protect your profile from being accessed by anyone other than you.

  • WAZUPA Services

Localization

These help WAZUPA provide a localized experience. For example, THE COMPANY may store information in a cookie that is placed on your browser or device so you will see the site in your preferred language.

  • WAZUPA Services

Site features and Services

These provide functionality that assists us to deliver WAZUPA Services. For example, cookies help you log in by pre-filling fields. THE COMPANY may also use cookies and similar technologies to help us provide you and others with social plugins and other customized content and experiences, such as making suggestions to you and others.

  • WAZUPA Services
  • Facebook
  • Twitter
  • Instagram
  • Google

Analytics and research

These are used to understand, improve, and researching Merchant Products, including when you access WAZUPA Services from a computer or mobile device.
For example, THE COMPANY may use cookies to understand how you are using WAZUPA Services, and segmenting audiences for future testing. THE COMPANY may use these technologies and the information THE COMPANY receive to improve and understand how you use WAZUPA Services.

  • Google
  • MixPanel
  • Optimizely

Advertising

Things like cookies and pixels are used to deliver relevant advertisements, track advertisement campaign performance and efficiency. For example, THE COMPANY may rely on information gleaned through these cookies to serve you advertisements that may be interesting to you on other websites. Similarly THE COMPANY may use a cookie, attribution service or another similar technology to determine whether THE COMPANY’s served an ad and how it performed or provide us with information about how you interact with the advertisement. 

IOS Permissions

When you use WAZUPA Services on your IOS device, you'll see contextual dialogs asking you to approve certain permissions that the application requests. Allowing these permissions will ensure you have the best possible experience of WAZUPA Services. (If you're an Android user, please see our Android Permissions, set out below.)

To make sure you understand what features THE COMPANY access and what data THE COMPANY collect through these IOS permissions, THE COMPANY's provided a more detailed breakdown and discussion of the permissions below. You can edit your permissions anytime by going into the Settings application on your device.

USE CURRENT LOCATION

 
  • Location Services

You'll see this dialog during the order process. If you opt in, the application will send precise location data to WAZUPA Services. THE COMPANY use that data to personalize your experience; to facilitate delivery charges; to determine what and which Merchant Products are relevant to you; to use for analytics purposes at an aggregated level; and to customize and improve the location-based services WAZUPA Services provide. It looks like this:

Alternatively, you can rather to manually enter your search address to see which Merchants are available in your suburb, city, state, country and press Go thereafter.

You will also fill in Home Address and an Alternate Address for delivery.  However you can amend address at the end of your order should you need this delivery address to be amended.

merchant - change timeline photo / CHANGE PROFILE PHOTO

You'll see this dialog when you attempt to add or amend an existing timeline photo or profile photo.  (Select “Camera” and/or “Your Gallery)
It looks like this:

  • merchant - Create menu picture

You'll see this dialog when you add or amend your Menu item. (Select “WAZUPA Gallery”, “Camera” and/or “Your Gallery”).
 It looks like this:

  • Questions?

If you have any questions, you can write us at info@wazupa.com.

Android Application

When you install the application on your Android phone as a User, you're shown a list of permissions that the application requests. The descriptions of these permissions are worded the same for every application currently, there's no way for THE COMPANY to customize them. So, to make sure you understand what features THE COMPANY access and what data THE COMPANY actually collect, THE COMPANY's provided a more detailed breakdown and discussion of the permissions below.

Identity

These permissions allow THE COMPANY to prepopulate information that you have provided on Sign Up, which information includes but is not limited to the following, your email address, first name, last name and phone number from your profile during registration.

Contacts

THE COMPANY use this permission to display an address book in the application that you can use for delivery and inviting friends to join the application. If you choose to share with your contacts and/or friends, WAZUPA Services will afford you the opportunity to invite friends. 

Location

The application does not store your location to persistent memory on the device, but does collect and send approximate and precise location data to THE COMPANY servers to personalize your experience; to determine what WAZUPA Services, delivery experience, promotions, and surveys are relevant to you; to use for analytics purposes at an aggregated level; and to customize and improve the location-based services THE COMPANY provide.

Pictures

You will through WAZUPA Services, be allowed to as a Merchant access WAZUPA Gallery to obtain pictures for your Merchant Products, alternatively utilise Your Gallery for these pictures.

Camera

You can utilise your Camera to take pictures of your Merchant Products.

Device ID & Call Information

This permission is used in conjunction with your own contact information to prepopulate your mobile number and country during registration. You can edit these fields, and the updated information is sent to THE COMPANY once your account is created. This permission is also used to obtain your Android device ID, which is sent to THE COMPANY servers and used in fraud prevention efforts.
This permission is used by THE COMPANY to notify you when a network connection is unavailable.

Questions?

If you have any questions, you can write us at info@wazupa.com.

 

 

 

 

Home Chef Terms & Conditions of Use

 

 

MERCHANT TERMS & CONDITIONS

INTRODUCTION

These Terms and Conditions of use govern the access or use by the Merchant of WAZUPA Services  and THE COMPANY’s Services made available by THE COMPANY. THE COMPANY provides a technology platform whereby THE COMPANY acts as a conduit between the Merchant and the Customer, THE COMPANY affords the Merchants the ability to sell the Merchant’s Products via WAZUPA Services and THE COMPANY’s Services.

This means that in addition to the Merchant’s contractual obligations to THE COMPANY relating to the Merchant’s Products that the Merchants provides through WAZUPA Services and THE COMPANY’s Services, the Merchant will have a further obligation to the Customer, to provide the requisite quality, suitability or merchantability in regards to the Merchant’s Products.

These Terms and Conditions are a valid and binding agreement between THE COMPANY and the Merchant (“Agreement”) and the Merchant acknowledges and understands that by accessing and using WAZUPA Services and THE COMPANY’s Services, the Merchant agrees to these Terms and Conditions.

These Terms and Conditions further govern the Merchant’s access and use of WAZUPA Services and THE COMPANY’s Services.

By using WAZUPA Services and THE COMPANY’s Services the Merchant signifies its, his or her agreement to these Terms and Conditions.

THE COMPANY may change any of these Terms and Conditions from time to time. Therefore, the Merchant should keep up-to-date with the Terms and Condition’s content and read these Terms and Conditions at all times prior to using WAZUPA Services and THE COMPANY’s Services as the current version of the Terms and Conditions will apply to the Merchant’s use. By accessing WAZUPA Services and THE COMPANY’s Services and using any of THE COMPANY’s Services, the Merchant agrees that he, she, it has read the Terms and Conditions and agrees to be bound thereto.

  1. INTERPRETATION AND PRELIMINARY

1.1 The headings of the clauses in this Agreement are for the purposes of convenience and reference only and shall not be used in the                      interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears:
       Words importing:

1.1.1.any one gender includes the other two genders;
1.1.2. the singular includes the plural and vice versa; and
1.1.3. natural persons include created entities (incorporated or unincorporated, juristic or not) and the state and vice versa.

1.2  The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings               namely:

1.2.1.  “Acquiring Bank” means the bank identified by THE COMPANY that will process purchases from Customer/s;
1.2.2.  “Agreement” shall mean this written document together with all amendments to it from time to time;
1.2.3.  “Customer” means in a general sense and includes any person who is utilising WAZUPA Services and/or THE COMPANY’s Services and/or             has agreed to the Terms and Conditions;
1.2.4.  “Commencement Date” means the date of activation i.e. when the Merchant’s Merchant Profile goes live on THE COMPANY;
1.2.5.  “Commission” means the remuneration for THE COMPANY’s Service provided to the Merchant, which commission payable by Merchant                is up to 15% (fifteen percent) plus any additional % required should VAT be applicable. This Commission will be reduced depending on                the Merchant’s sales and the Merchant’s ratings at THE COMPANY’s sole discretion;
1.2.6.  “THE COMPANY” means Online Trade and Investments (Pty) Ltd, a proprietary limited company established in the Republic of South                      Africa, whose offices are situated at First Floor, 11 Crescent Drive, Melrose Arch, registered under registration number 2016/063136/07;
1.2.7.  “THE COMPANY Services” means the commercial services to be provided by THE COMPANY to the Merchant as provided and described                in clause 3 below;
1.2.8 .  “Intellectual Property” means all present and future rights in, on or through WAZUPA Services and THE COMPANY’s Services whether                     protected by means of statute or common law, including but not limited to patents, models, brands, names, trade names, designs,                       technical specifications, methodologies, processes, designs, know-how, strategy, prices, projects, trademarks, formulae, business                         system, client/supplier details, trade dress, trade secrets, confidential information, copyright, graphics, icons, hyperlinks and goodwill                (whether registered or unregistered including applications for and rights to obtain or use same) which THE COMPANY own;
1.2.9.  “Merchant” means the supplier of Merchant Products through WAZUPA Services and THE COMPANY’s Services.
1.2.10. “Merchant’s Products” means those goods, products and services offered by the Merchant through WAZUPA Services and THE                                 COMPANY’s Services that may be purchased by the Customer;
1.2.11. “Merchant’s Profile” means the profile that is set up on WAZUPA Services and THE COMPANY’s Services, which the Merchant sets out on               the technology platform offered in terms of THE COMPANY;
1.2.12. “Notice” means a written document;
1.2.13. “PIN NO.” means a one-time pin number;
1.2.14  “Parties” means THE COMPANY and the Merchant and includes a reference to either one of them, as the context may require;
1.2.15 “Terms and Conditions” means these terms and conditions, as amended from time to time;
1.2.16  “trademarks” means those trademarks THE COMPANY owns (or which THE COMPANY is designated as beneficial owner of) and any                       other trademarks, designs, logos, style names, tag lines and slogans which THE COMPANY owns or has the right to use or any                               derivative service offerings of, and applications for, any of same;
1.2.17. “Transaction” means the following:

              1.2.17.1     The Customer logs onto WAZUPA Services and THE COMPANY’s Services and selects Merchant’s from the various Merchant                                    menus with a specified delivery date.
               1.2.17.2     The Customer adds the Merchant’s Products to the Customer’s cart.
               1.2.17.3     The Customer “Checks Out” by placing the order.
               1.2.17.4     The order is then listed as PENDING.
               1.2.17.5     The Merchant receives notification of the order and confirms or cancels the order.
               1.2.17.6     The order is then listed as accepted or cancelled.
               1.2.17.7     Once the order is ACCEPTED by the Merchant the Customer then pays for the order.
               1.2.17.8     When the Merchant’s Products are delivered or collected the Customer gives the PIN NO. to the Merchant, the Merchant                                         enters this PIN NO. into the relevant section of WAZUPA Services and THE COMPANY’s Services, the transaction is                                                     completed  and marked as DELIVERED and thereafter the Merchant will receive payment weekly, for all Monday to Sunday                                     transactions , on the following Wednesday;
1.2.18.  “VAT” means Value Added Tax in terms of the Value Added Tax Act, No. 89 of 1991;
1.2.19.  “THE COMPANY’S Marks” means THE COMPANY’S tradenames, logos and trademarks;
1.2.20.  “WAZUPA Services” means the applications, websites, content and Intellectual Property rights made available by THE COMPANY;

1.3.  Where 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.
1.4.  Technical terms not defined in this Agreement shall bear the common and accepted meanings conferred upon such terms in the                          information technology industry in the Republic of South Africa;
1.5.  Expressions defined in this Agreement shall bear the same meanings in the annexures to this Agreement which do not themselves                     contain their own definitions;
1.6.  Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
1.7.  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 Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a           Saturday, Sunday or public holiday.
1.8.  Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.9.  The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the                          Agreement, shall not apply.

  1. DURATION

    • The Agreement shall commence with effect from the Commencement Date.
    • The Agreement will continue in force (subject to the provisions as to termination hereinafter contained) on a month to month basis and shall be terminable by Notice given by either Party to the other to such effect.

  2. THE COMPANY’S SERVICES

    • THE COMPANY may facilitate the Certificate of Acceptance to be obtained from the Municipality on behalf of the Merchant.    THE COMPANY is in no way bound or liable in any way by facilitating the issuance of this Certificate of Acceptance and will be indemnified against the Merchant not obtaining approval.  The sole responsibility lies with the Merchant to obtain the requisite permission by the relevant municipality to operate as a Merchant for a particular premises.
    • THE COMPANY will through a third party provider provide a payment portal to the Merchant and further will endevour to assist the Merchant by marketing WAZUPA Services and THE COMPANY’s Services and THE COMPANY and the Merchant (if applicable).
    • THE COMPANY shall be entitled at its sole and absolute discretion to remove or amend what has been set out by the Merchants for any reason whatsoever without any prior Notice to the Merchant.
    • The Merchant will utilise his, her, its’ e-mail address and password for identification purposes, in order for the Merchant to be able to activate his, her, its’ Merchant’s Profile and transact with WAZUPA Services and THE COMPANY’s Services.
    • For each purchase of the Merchant’s Products a third party provider contracted with THE COMPANY will:
      • authenticate the Customer's credit card information;
      • verify whether, at the time of THE COMPANY'S receipt of the purchase, the Customer's account has sufficient credit available to cover the purchase;
      • initiate the transfer of funds through the Acquiring Bank in the amount of the purchase;
  •  If the Acquiring Bank notifies THE COMPANY of a problem with a Customer’s credit card account, including     without limitation inadequate or terminated credit, then THE COMPANY shall refuse to process such order.
  • THE COMPANY shall act as the middle man between the Merchant and the Customer.
  • This clause sets forth all of THE COMPANY's obligations with respect to the Company’s Services to the Merchant.
  • Any of THE COMPANY Services described herein may be supplemented or modified by THE COMPANY at is sole and absolute discretion without affording the Merchant any Notice. In this regard, the Merchant agrees to provide THE COMPANY with such additional information as THE COMPANY may reasonably request and to otherwise co-operate with THE COMPANY in implementing such supplemented or modified THE COMPANY Services.
  1. OPERATIONAL USE PROCEDURES AND REQUIREMENTS
     
    • Establishing a Merchant Profile

      • THE COMPANY has arranged a bank account with an Acquiring Bank, pursuant to which the Merchant     authorizes THE COMPANY to process credit card transactions on the Merchant’s behalf through WAZUPA Services.  All credit card authorization services, collection of payments, refunds and settlement will be governed by the terms and conditions of THE COMPANY’s separate agreement with the Acquiring Bank, which Acquiring Bank agreement’s terms and conditions, the Merchant accepts and agrees to be bound  thereto.  A copy of the salient terms can be requested from THE COMPANY for the Merchant’s information purposes.
      • The Merchant shall provide such material and information as may be required by THE COMPANY. The Merchant must register for and maintain his/her/its’ Merchant Profile (“Merchant Profile”). The Merchant must be at least 18 years of age, or the age of legal majority in the Merchant/s jurisdiction (if different than 18 years of age). Merchant Profile registration requires you to submit certain personal information, including but not limited to the Merchant/s name, address, mobile number, phone number, Identity Number and the Merchant’s Bank Account Details. The Merchant agrees to maintain accurate, complete, and up-to-date information in his/her/its’ Merchant Profile. The Merchant’s failure to maintain                accurate, complete, and up-to-date Merchant Profile information, may result in the Merchant not being   paid on time and/or at all and/or the Merchant be terminated and not be afforded further opportunity to utilise WAZUPA Services and THE COMPANY’s Services.      
      • The Merchant agrees that the following actions shall be material breaches of this Agreement:

    • signing in as, or pretending to be, another person;
    • setting out in accurate information;
    • transmitting material that violates, or could violate, the intellectual property rights of THE COMPANY, Wazupa Services and THE COMPANY’s Services and/or others or the privacy of THE COMPANY, Wazupa Services and THE COMPANY’s Services and/or others;
    • using THE COMPANY and/or Wazupa Services and THE COMPANY’s Services in a way that is intended to harm, or could               result in harm to THE COMPANY and/or Wazupa Services and THE COMPANY’s Services and/or could result in harm to other Merchants and/or Users/Customers of THE COMPANY;
    • gathering information about other Users/Customers, Merchant’s without obtaining other Users/Customer’s and/or Merchant’s prior written consent.
      • The Merchant is responsible for all transactions that occur under the Merchant Profile, and the Merchant agrees to maintain the security and secrecy of the Merchant’s Profile username and password at all times. The Merchant agrees that any use of the Merchant Profile username and password shall be regarded as if the Merchant were the person using the Merchant Profile.

    • Receiving a PIN NO. (if applicable – not in regards third party agent deliveries)
  •                  In order to ensure that the Customer received the Merchant’s Products and Merchant’s Services once the Transaction has                          been finalized between the Customer and the Merchant, a PIN NO. will be generated by THE COMPANY and issued to the                            Customer, and the Customer in turn will give the PIN NO. to the Merchant in order to release the payment to the Merchant in                    terms of clause 6. below. 
  1. MERCHANT’S PROFILE AND PRODUCTS

    • The Merchant will be required to fill in his, her, its’ Merchant Profile;
    • The Merchant shall load onto the WAZUPA Services and THE COMPANY’s Services, all relevant details of Merchant Products and set out the retail selling price; .
    • The Merchant agrees that once the retail selling price has been set out by the Merchant on WAZUPA Services and THE COMPANY’s Services, and the Customer has made payment for the Merchant’s Products, the Merchant cannot change the retail selling price.  The Merchant can only change the retail selling price prior to a new Customer utilising WAZUPA Services and THE COMPANY’s Services.

  2. CHARGES, COMMISSION AND PAYMENT

    • In consideration for THE COMPANY providing Company Services to the Merchant and for affording the Merchant the ability to utilise WAZUPA Services and THE COMPANY’s Services, the Merchant shall pay to THE COMPANY the commission as set out in clause 1.2.5 of this Agreement.
    • THE COMPANY shall deduct its commission and any other amounts owed to it on a weekly basis and thereafter pay the outstanding balance to the Merchant. THE COMPANY shall make payment to the Merchant on a weekly basis for payments relating to PIN NO.’s received in terms of clause 1.2.17.8 of this Agreement. 
    • Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of VAT and any VAT arising in respect of any amounts payable by the Merchant under this Agreement shall be paid to THE COMPANY by the Merchant.
    • All payments due by THE COMPANY to the Merchant in terms of this Agreement shall be paid into the bank account set out by the Merchant in the Merchant Profile.
    • If payments made by the Customer are not claimed within 90 days by the Merchant then these payments will be utilised by THE COMPANY to defray expenses.
    • The Merchant further undertakes to obtain the necessary licenses by law required to operate in the Merchant/s area. THE COMPANY is not liable to the Merchant, the Customer/User and/or any third party should the Merchant not obtain the requisite licenses required by law.  The Merchant will be held liable in all respects should the requisite licenses required by law not be obtained prior to utilising WAZUPA Services and THE COMPANY’s Services.

  3. MERCHANT’S RELATIONSHIP WITH CUSTOMER
    • The Merchant acknowledges that:
      • upon the conclusion of a Transaction on WAZUPA Services and THE COMPANY’s Services, a binding agreement between the Merchant and Customer shall come into effect, inter alia, in terms of which the Merchant shall be obliged to provide the Merchant’s Products within the agreed time frames;
      • risk and ownership in the Merchant’s Products shall pass from the Merchant to the Customer on delivery or on collection of the Merchant’s Products;
      • the Merchant shall be obliged to accept the return of any of its Products on the date of delivery or collection of the Product at the Merchant’s own cost;
      • the Customer was introduced to the Merchant by THE COMPANY, and the Merchant will not in any way whether directly, indirectly, through a third party or in any way whatsoever transact with the Customer directly by bypassing THE COMPANY.  The Merchant agrees that this bypassing action will be    seen as a material breach of the Agreement, and THE COMPANY will have right to immediately terminate this Agreement without any Notice required to be given by THE COMPANY to the Merchant and the Merchant agrees that as a result of THE COMPANY suffering damages due to the Merchant’s material   breach, that THE COMPANY may elect to further claim all Sales amount/s and Delivery charge/s that the Merchant would have earned for THE COMPANY’s benefit.
  1. RIGHTS AND OBLIGATIONS OF THE PARTIES
     
    • VAT

The Merchant will be responsible for remitting invoices in regards to the Merchant’s VAT levied upon the sale of all the Merchant Products ordered by Customers through WAZUPA Services and THE COMPANY’s Services in accordance with the VAT Act.

  • Advertising & Publicity

    • The Merchant may use THE COMPANY’S Marks for advertising and publicity in conjunction with the offering of the Merchant Products through WAZUPA Services and THE COMPANY’s Services. THE COMPANY’S Marks may not be used to imply that THE COMPANY endorses, sponsors, certifies, or approves the Merchant Products.
    • The Merchant grants to THE COMPANY a non-exclusive right and license to use the Merchant’s name and such of the Merchant’s trade names, trademarks and service marks in advertising for and publicity about the Merchant, without the Merchant's prior approval.

  • Criminal Check

  • The Merchant agrees that THE COMPANY reserves the right to conclude a Criminal Check on the Merchant.  The Merchant agrees that THE COMPANY will be entitled to conclude a Criminal Check any time and for the duration of this Agreement.
  • The Merchant further agrees that it is in THE COMPANY’s sole discretion as to whether it wishes to continue this Agreement with the Merchant or not.
  1. DISCLAIMER AND WARRANTIES

9.1    THE COMPANY, THE COMPANY Services and WAZUPA Services and THE COMPANY’s Services are provided “as is” and “as available.” THE              COMPANY disclaims all representations and warranties, express, implied or statutory, not expressly set out in these Terms and                              Conditions, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. 

9.2    THE COMPANY makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability                   of WAZUPA Services and THE COMPANY’s Services requested and/or utilised by the Merchant.

9.3    THE COMPANY makes no representation, warranty, or guarantee regarding that WAZUPA’s Services and THE COMPANY’s Services will be             uninterrupted or error-free.

9.4    THE COMPANY does not make any representations or warranties of any kind, whether express or implied, including without limitation                 with respect to WAZUPA Services  and THE COMPANY ‘s Services, its contents, the accuracy thereof, or any warranties or representations             regarding the effectiveness of any security or encryption facilities or with regard to the availability, arrangements and times. 

9.5    The Merchant agrees that the entire risk arising out of the Merchant’s use of WAZUPA’s Services and THE COMPANY’s Services remains                 solely with the Merchant, to the maximum extent permitted under applicable law.

9.6    THE COMPANY disclaims all representations and warranties, including but not limited to warranties as to the availability, accuracy or                    content of information, and further disclaims all warranties of merchantability or fitness for a particular purpose of WAZUPA Services and          THE COMPANY’s Services.

9.7    THE COMPANY does not warrant that the functions provided by WAZUPA’s Services and THE COMPANY’s Services will be uninterrupted or           error free or that WAZUPA’s Services and THE COMPANY’s Services that are available are free from viruses or other harmful components.

9.8    Save as expressly set out herein, THE COMPANY shall under no circumstances whatsoever be liable to the Merchant, including without                limitation, as a result of or in connection with THE COMPANY’s negligence (including gross negligence) acts or omissions or those of THE              COMPANY’s employees, agents or designees, merchants or other persons for whom in law THE COMPANY may be liable (in whose favour          this constitutes a contract or undertaking for their benefit), for any direct, indirect, incidental, special or consequential loss or damage 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 the Merchant, the recipient of WAZUPA’s Services and THE COMPANY’s Services, or any          other person arising from or as a result of any agreement concluded in terms of these Terms and Conditions, the use, possession or                    consumption of WAZUPA Services and THE COMPANY’s Services.

9.9   The Merchant represents, warrants and undertakes that it will abide by the following business practices throughout the term of this                    Agreement:

9.9.1        to comply in all material respects with all laws and regulations;

9.9.2       to offer Merchant Products for sale only if the Merchant has legitimate rights to market and sell such Products.

9.10  THE COMPANY makes no express or implied warranty in respect to the quality or merchantability of the Merchant Products offered by                 the Merchant. THE COMPANY will not be liable for any information contained on WAZUPA Services and THE COMPANY’s Services, which is           incorrect or inaccurate and/or maybe deemed to be defamatory, derogatory, or offensive in any manner whatsoever.

9.11  THE COMPANY AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS, REPRESENTATIVES, AFFILIATES AND/OR SUPPLIERS                 SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WHETHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR                                         CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, DEATH OR DAMAGE RELATED TO, IN                                   CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY THE MERCHANT’S USE OF WAZUPA SERVICES AND THE COMPANY’S                             SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE COMPANY ACTS                         NEGLIGENTLY IN THIS REGARD.

9.12  THE COMPANY AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS, REPRESENTATIVES, AFFILIATES AND SUPPLIERS SHALL           NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) THE MERCHANT/S USE OF OR RELIANCE ON WAZUPA                      SERVICES AND THE COMPANY’S SERVICES OR THE MERCHANT/S INABILITY TO ACCESS OR USE WAZUPA SERVICES AND THE COMPANY’S               SERVICES; OR (ii) ANY TRANSACTION OR, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE                       COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, DESIGNEE, AGENTS,   REPRESENTATIVES, AFFILIATES AND SUPPLIERS SHALL NOT             BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND THE COMPANY’S REASONABLE CONTROL.                     WAZUPA SERVICES AND THE COMPANY’S SERVICES MAY BE USED BY THE MERCHANT TO REQUEST USERS TO PURCHASE MERCHANT, BUT           THE MERCHANT AGREES THAT THE COMPANY HAS NO RESPONSIBILITY OR LIABILITY TO THE MERCHANT/S RELATED TO WAZUPA                          SERVICES AND THE COMPANY’S SERVICES AND/OR A THIRD PARTY SERVICE PROVIDER OTHER THAN AS EXPRESSLY SET FORTH IN THE                 AGREEMENT.  THE           LIMITATIONS AND DISCLAIMER DO                 NOT PURPORT TO LIMIT LIABILITY OR ALTER THE MERCHANT/S RIGHTS AS A MERCHANT THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

  1. MERCHANT’S INDEMNIFICATION
    • The Merchant agrees to defend, indemnify and hold harmless THE COMPANY, their officers, directors, shareholders, employees, agents and representatives, and the successors, heirs and assigns of the foregoing, from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs and expenses (including but not limited to attorney's fees on an attorney and own client scale) arising out of or in connection with this Agreement, any act or omission of the Acquiring Bank, any obligation or representation or warranty of Merchant hereunder, theMerchant’sProductsonWAZUPAServicesandTHECOMPANY’s Services, including without limitation:
      • claims arising from the provision by the Merchant of, or the use or possession by any Customer or any third party acquiring from any Customer of the merchant, Merchant’s Products or any act, error or omission of the Merchant in connection therewith;
      • claims arising from or alleging inaccurate or incomplete information contained in WAZUPA Services and THE COMPANY’s Services or that any such information infringes the intellectual property rights of any third party;
      • claims arising from any information furnished or instructions issued to THE COMPANY by the Acquiring Bank;
      • claims that any of the Merchant’s Products infringe any intellectual property rights of any third party;
      • damages arising from any violation by the Merchant of its export control obligations;
      • damages arising from any violation of any applicable law or regulation;
      • claims of any defect to the Merchant’s Products;
      • any defamation, invasion of privacy, disparagement or similar claims;
      • any other violation of rights of any third party not otherwise set forth in this clause 10.
  1. LIMITATION OF THE COMPANY’S AND THE COMPANY’S LIABILITY

11.1 THE COMPANY, their officers, directors, employees, designee, agents, representatives, affiliates and suppliers shall not be liable for any                loss or damage whether direct, indirect, incidental, special, exemplary, punitive or consequential damages, including loss of profits, loss of          savings, loss of revenues, lost data, personal injury, death or damage related to, in connection with, or otherwise resulting from any use              of WAZUPA’s Services and THE COMPANY’s Services, even if THE COMPANY has been advised of the possibility of such damages and even            if THE COMPANY acts negligently in this regard (whether arising under contract, delict or otherwise and whether the loss was actually                  foreseen or reasonably foreseeable). THE COMPANY’s and their officers, directors, employees, designee, agents, representatives, affiliates          and suppliers shall not be liable for any damages, liability or losses arising out of:

  • the Merchant’s reliance on WAZUPA’s Services and THE COMPANY’s Services or the Merchant’s inability to access or use, inoperability and/or malfunction of WAZUPA’s Services and THE COMPANY’s Services; and/or
  • any transaction or relationship between the Merchant and any customer; and/or
  • any delay in the correction or repair of WAZUPA Services and THE COMPANY’s Services, even if THE COMPANY has been advised of the possibility of such damages. THE COMPANY, their officers, directors, employees, designee, agents, representatives, affiliates and suppliers shall not be liable for delay or failure in performance resulting from causes beyond THE COMPANY’s reasonable control.

11.2  WAZUPA’s Services and/or THE COMPANY’s Services may be used by the Merchant, but the Merchant agrees that THE COMPANY has no              responsibility or liability to the Merchant in regards to any of THE COMPANY’s Products provided to the Merchant by THE COMPANY or a            third party other than as expressly set forth in these Terms and Conditions.

11.3  The limitations and disclaimer do not purport to limit liability or alter the Merchant’s rights as a Merchant that cannot be excluded under           applicable law.


11,4  THE COMPANY will not be held liable to the Merchant, any Customer, or any other third party for any of the following:

  • amounts unpaid by Customers in connection with the purchase of the Merchant’s Products for THE COMPANY Services; and/or
  • damages, death, sickness, physical impairment and/or disability arising from the purchase by a Customer or third party of the Customer and/or the Merchant of the Merchant’s Products from WAZUPA Services and THE COMPANY’s Services.
  1. BREACH AND TERMINATION

    • In the event of the Merchant breaching any term of this Agreement and failing to remedy such breach within a period of 5 (five) days of receipt of a Notice from THE COMPANY calling upon it to do so, then THE COMPANY shall be entitled to terminate this Agreement immediately with the Merchant.
    • Notwithstanding the foregoing, if the Merchant should:
      • default in any amount falling due in terms of this Agreement; or
      • fail to observe and perform any of the Terms and Conditions and/or obligations of this Agreement that are binding on the Merchant; or
      • commit any act of insolvency, or being a natural person, assign, surrender or attempt to assign or surrender his estate; or
      • be sequestrated, or placed under judicial management or be wound up, whether provisionally or finally; or
      • be placed under supervision for business rescue; or
      • compromise with any of its creditors or endeavour or attempt to do so, then THE COMPANY shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith and without notice, claim and recover damages from the Merchant. THE COMPANY’S right to claim specific performance shall include the right to claim immediate payment of all amounts payable in terms of this Agreement.
    • The termination of the Agreement, for whatever reason, shall not affect the rights of either of the Parties:
      • that may have accrued before the termination of the Agreement; or
      • which specifically or
      • by their nature survives the termination of the Agreement.
  1. CONFIDENTIALITY

    • THE COMPANY shall maintain information obtained from the Merchant and the Customers in confidence and agrees that it shall not make any disclosure of such information to any third party other than to the Acquiring Bank and the banks with whom Customer or THE COMPANY may maintain any credit card account, without Notice to the Merchant. THE COMPANY shall, however, have the right to include such information in reports of system-wide usage and activity data (in the aggregate or by product or other category).
    • It is recorded that THE COMPANY’S obligations as described above shall not extend to any information that:
      • has become publicly known through no wrongful act of THE COMPANY;
      • is or has been rightfully received from a third party without restriction on disclosure and without breach of this Agreement;
      • has been furnished by Merchant or its Customers to a third party without similar restrictions on disclosure; or
      • is required to be disclosed in accordance with any applicable law.
  1. INTELLECTUAL PROPERTY

The Merchant acknowledges that all right, title and interest in and to the Intellectual Property vests in THE COMPANY and that it has no claim of any nature in and to the Intellectual Property. The Merchant shall not at any time during or after termination or cancellation of this Agreement dispute the validity or enforceability of such rights or the Patents, or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of that right, title and interest of any of the Intellectual Property rights which may be the subject of this Agreement and shall not counsel or assist any other person to do so.

  1. RELATIONSHIP

Subject to clause 3.7, the Parties to this Agreement shall at all times be independent contractors with respect to each other in carrying out this Agreement.

  1. DOMICILIUM CITANDI ET EXECUTANDI

    • The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, Notices or other documents or communications of whatsoever nature, the following addresses:

      • THE COMPANY-

Address: First Floor, 11 Crescent Drive, Melrose Arch

E-mail: info@wazupa.com

  • The Merchant-

The Address and/or E-mail set out in the Merchant’s Merchant Profile.

  • Any Notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing but it shall be competent to give Notice by facsimile or e-mail.
  • Either Party may by Notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in the Republic of South Africa or its postal address or its telefax number, provided that the change shall become effective on the 7th (seventh) business day from the deemed receipt of the Notice by the other Party.
  • Any Notice to a Party:
    • delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
    • sent by e-mail to stipulated in clause 1 shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
  1. FORCE MAJEURE

    • THE COMPANY shall not be liable for a failure to perform any of its obligations insofar as it proves:
      • that the failure was due to an impediment beyond its control;
      • that it could not reasonably be expected to have taken the impediment and its effects upon its’ ability to perform into account at the time of the conclusion of this Agreement; and
      • that it could not reasonably have avoided or overcome the impediment or at least its effects.
    • An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive:
      • war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
      • natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
      • explosions, fires, destruction of machines, of factories and of any kind of installations;
      • boycotts, strikes, power failures, black outs and lock-outs of all kinds, go-slows, occupation of factories and premises, and work stoppages;
      • acts of authority, whether lawful or unlawful, apart from acts from which the Party seeking relief has assumed the risk by virtue of any other provisions of this A
    • Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which THE COMPANY gives notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than 60 (sixty) days THE COMPANY shall be entitled to terminate this Agreement.

  2. ENTIRE AGREEMENT AND VARIATIONS

    • This agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this agreement and the parties will not be entitled to rely, in any dispute regarding this agreement, on any Terms and Conditions or representations not expressly contained in this agreement.
    • THE COMPANY reserves the right to unilaterally amend the terms contained herein by accessing the WAZUPA Services and THE COMPANY’s Services the Merchant agree to the amended terms contained herein.
    • Neither party to this agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.

  3. ASSIGNMENT, CESSION AND DELEGATION

    • THE COMPANY shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this agreement, in whole or in part, to any other party or person without Notice to the Merchant.
    • The Merchant shall not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person.

  4. RELAXATION

No indulgence, leniency or extension of a right, which either of the parties may have in terms of this Agreement, and which either Party (“the Grantor”) may grant or show to the other Party, shall in any way prejudice the Grantor or preclude the Grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the Grantor of that right.

  1. WAIVER

No waiver on the part of either Party to this Agreement of any rights arising from a breach of any provision of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

  1. SEVERABILITY

In the event that any of the terms and/or Terms and Conditions of this agreement is found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms and/or Terms and Conditions, which will continue to be valid and enforceable.

  1. GOVERNING LAW AND DISPUTE RESOLUTION

The validity and interpretation of this agreement will be governed by the laws of the Republic of South Africa. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to WAZUPA Services and THE COMPANY’s Services, these Terms and Conditions and/or Merchant’s Products, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to an expert.  Such meeting will be held in Johannesburg with only the Parties and their legal representatives present.

It being the intention that the meeting will, where possible, be held and concluded within ten working days after it has been demanded. The expert will be, if the matter in dispute is principally:

  1. A) a legal matter, a practicing advocate or practicing attorney of not less than ten (10) years standing;
  2. B) an accounting matter, a practicing chartered accountant of not less than ten (10) years standing; and
  3. C) any other matter, an independent person agreed upon between the Parties.

The expert will have the fullest and freest discretion with regard to the proceedings, and her/his/its award shall be final and binding on the Parties to the dispute.  Furthermore the expert:

-       may dispense wholly or in part with formal submissions or pleadings;

-       will determine the applicable procedure, taking into account the fact that it is intended that the dispute will be determined as quickly as             possible and shall not be bound by strict rules of evidence and shall be entitled to take equity into account;

-       will include such order as to costs as he deems just.

The successful party to the meeting will be entitled to have the award made an Order of Court of competent jurisdiction.

The Parties by signing this Agreement consent to any dispute between them being determined as provided for in this clause.

The dispute resolution clause shall not preclude any of the Parties from obtaining relief by way of motion proceedings on an urgent basis from a court of competent jurisdiction.

The dispute resolution clause constitutes an irrevocable consent by the Parties to any proceedings and no party will be entitled to withdraw there from or to claim in such proceedings that it is not bound by the dispute resolution clause.

The dispute resolution clause is severable from the rest of the Agreement and remains in effect even if the Agreement is terminated for any reason.