SICA

Renewal

Automatic renewal. If an order involves a subscription, the agreement will continue automatically from the end of the initial term or subsequent automatic renewal period for an automatic renewal period equivalent to the initial term.

Renewal termination. You may terminate the agreement before the first day of the next calendar month. We may terminate the agreement at any time.

Orders

‍Receiving proposals. You accept our orders whenever you:

• order the services from us;
• order them through the website or application; or
• other wise start using them.

These accepted orders are offers to us to purchase our services.

Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.

Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.

Cancellation and refunds. We may cancel any order, but we will provide a pro rata refund for any money paid for future services not yet provided in relation to that particular order if we do. You may change your subscription or terminate the services, subject to the terms in clause 13.4.

Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.

Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.

Fees & Payment

Storage Subscription fees (if applicable)

• A monthly subscription fee shall be payable to us in relation to the services, the amount of which shall vary depending on the plan to which you have subscribed.
• The subscription fee is payable monthly in advance on the first day of each month.
• The Subscription Fees are non-refundable and subject to increase in zilch’s sole and absolute discretion, without prior notice.
• All subscription fees stated on our website are stated in Rands and are exclusive of Value- Added Tax levied in terms of the Value- Added Tax Act, 89 of 1991. 

If you wish to:

• upgrade your plan, you will be charged and shall be liable for, the subscription fee of the higher plan calculated pro rata from the day of the month in which you have increased your plan to the last day of the month in which you have upgraded your plan; or
• downgrade your plan, you are advised to do so at the end of the month as no refund of any part of the subscription fee of your higher plan shall be provided if you downgrade after the 1st (first) day of any month. If you downgrade before the end of any month, you will be charged the subscription fee for the downgraded plan from the month following that in which you have downgraded your plan; or
• cancel your account, you are advised to do so on the last day of the month as cancellation pursuant to the 1st (first) day of any month will result in you having to make payment of the that month’s subscription fee in full or the following month’s subscription fee in full, depending on the manner of cancellation.

In the event that you exceed the delivery limit applicable to the plan to which you have subscribed and/or upgrade your plan and/or subsequently downgrade your plan on 3 (three) consecutive occasions, we reserve the right to upgrade you to a higher plan taking into the account the number of orders by which you have exceeded your delivery limit on the 3 (three) occasions and you shall be liable for all charges associated with the higher plan.

Billing. If you use our delivery services, you will pay us the fees on the due date in the manner agreed between the parties in writing. You may not withhold payment of any amount due to us for any reason.

Payment gateway.  Paystack performs technical services to support payments on our platform. When you checkout on our app, Paystack may collect and store your card information, your email address, your mobile phone number, and billing and shipping address. To ensure your card information is kept safe and secure on Paystack’s servers, Paystack implements access control measures (physical and virtual), security protocols, policies and standards, including the use of encryption and firewall technologies, in compliance with the PCI DSS requirements. Paystack also implements periodical security updates to ensure that their security infrastructures are in compliance with reasonable industry standards. You can read more about Paystack and their terms at: https://paystack.com/za/terms.

Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.

Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:

• 2% above the prime (or prime lending) rate; or
• 15%.

Interest will be payable on a claim for damages from when the damages were suffered.

Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.

Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.

Tax. All fees exclude any tax (unless indicated otherwise). You will be liable to pay applicable taxes in addition to the fees.

Payment profile. We may provide any registered credit bureau with information about your payment of amounts.

Services

Right. We grant you a right to use the services subject to the following limitations:

• duration of agreement – you may only use the services for the duration of the agreement;
• limited to terms – you may only use the services according to these terms;
• non-exclusive – we may allow anyone else to use the services;
• non-transferable – you may not transfer the right to anyone else; and
• specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.

Breach. We may suspend or cancel your right if you breach the agreement.

Third-party Service Providers

We may provide you with access to third-party services over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of said third party services. Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which the third-party services are provided. 

Feedback

Introduction. We value your feedback about our service. It helps us improve it for you and our other customers. Feedback means any comments or suggestions that you send us or post on a website that we control related to the software as a service.‍

No-obligation to you. We are not obliged to compensate or credit you for your feedback in any way unless we have a written agreement with you todo so.‍

Your obligations to us. When you submit your feedback to us, you:

• grant us a worldwide, perpetual, non-exclusive, royalty-free, sublicensable licence to use, reproduce and, modify your feedback for any purpose related to the service;
• agree to deliver all documents and perform all actions necessary to ensure that our rights to use, reproduce, and modify your feedback are effective and enforceable; and
• give up any claim that our use, reproduction, or modification of your feedback violates any of your rights, including your intellectual property rights or your moral rights (the rights not to have your work distorted and to be credited for your work).‍

Submission. You can submit any feedback to us by email or through any of our other feedback channels.‍

Mayor may not take action. We will consider your feedback and may or may not decide to act on it in our absolute discretion in terms of our road map for the service.

Online Services

Basis. We provide the online services to you on the following basis:

• you give us permission to monitor how you use them for security and stability purposes; and
• you agree that our records are undisputed evidence of the services provided to you.

Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:

• accurately provide us with any information that we ask for on registration or account creation;
• create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
• look after their credentials and not give them to anyone else;
• not interfere with or introduce any malicious software into the online services or otherwise misuse them;
• be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
• have the necessary infrastructure, equipment, and software to access the online services; and
• abide by the agreement and any policies that we communicate to them in writing.

Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.‍

Restrictions. You will not:

• grant anyone direct access to your portal other than as an authorised user, including by way of lease, download, or as an application, bureau or on-demand software service provider or any other method; or
• use the software to provide a service to any third party similar to our software;

unless agreedotherwise between the parties in writing.

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Updates or changes. We may update or change the site from time to time to reflect changes to our products, our users’ needs and our business priorities.

Your Data

Definition. Your data is any data belonging to you that:

• you (or any third party on your behalf) provide to us; or
• we generate, process, or supply to you or a third party in providing the services;

but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.

You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.

We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.

Responsibility. We will

• comply with all relevant laws that affect your data, including data protection, retention, and destruction laws;
• comply with any of your policies or procedures relating to your data that you communicate to us timeously in writing;
• have due regard to leading industry information security management codes of practice, where appropriate;
• have an individual to oversee compliance with relevant data protection laws;
• not sell, dispose of, or encumber any of your data or try to do any of those things;
• be able to identify any of your data separately from any other data under our control; and
• not disclose any personal information from your data, other than in terms of the agreement.

Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that we:

• get your written permission to do so beforehand;
• notify you in writing of: (i) the purpose of sharing your data with the subcontractor; and (ii) how we have carried out due diligence on them;
• do so only through a written agreement with the subcontractor which imposes the same obligations on them as are imposed on us; and
• remain fully liable for any processing of your data under the agreement by our subcontractor.

Location. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.

Confidential Information

Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.

Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

• protect the other party’s interests;
• only use it to comply with their responsibilities under the agreement;
• only give it to their employees or agents that need it (and only as much as they need);
• use reasonable security procedures to make sure their employees or agents keep it confidential;
• get promises of confidentiality from those employees or agents who need access to the information;
• not reveal the information to anyone else; and
• not use it for any purpose other than under this agreement.

End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:

• the other party agrees that they may destroy or retain it instead; or
• it is lawfully in the public domain;
• someone else who is allowed to reveal it gives it to them;
• someone gives it to them to comply with a court order or other legal duty.

‍Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.

Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

Intellectual Property

Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.

Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.

Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.

Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.

Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. This includes using your logo for custom-branding in our shopper mobile application. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.

Non-solicitation

You will not contract with any of our personnel or third-party licensors, other than through us, who were involved in providing services under an order for the duration of that order or for 12 calendar months after its termination.

Our Warrenties

Service warranties. We warrant that we will:

• employ enough trained personnel with the knowledge and expertise to provide the services;
• use reasonable efforts consistent with prevailing industry standards to maintain the services; and
• provide the services in accordance with all applicable laws.

General warranties. We warrant further that we:

• have the legal right and authority to perform our obligations under the agreement; and
• will not intentionally introduce any malicious software into your systems.

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Disclaimer of Warrenties

Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause or a third party causes. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:

• which users gain access to our services;
• what content you access via the services; or
• how you may interpret or use the content.

Representations. We do not represent that:

• we will be responsible or liable for the legality of material or content contained in or accessed through our services;
• the service will be uninterrupted, secure or error free;
• any defects or errors in the service will be corrected; and
• that any content or information you obtain on or through the service will be accurate.

Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

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Your Warranties

Agreement warranties. You warrant that:

• no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
• you are not breaching any other agreement by entering into the agreement.

Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

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Limitation of Liability

Direct damages limited. We are not liable to you for any direct damages to the extent that applicable laws allows. Where we are liable in terms of applicable law, we will only be liable up to an amount equal to the fees that you have already paid us in the preceding calendar month.allowed under applicable laws.

Indirect damages excluded. We are not liable for any other damages or losses that our services may cause you.

Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.‍

Clause survival. This clause is separate from the rest of the agreement and remains valid for five years after the end of the agreement.

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Breach

Breach. If either party

• does not fix a breach within seven days of receiving written notice from the other party;
• breaches the agreement materially twice or more in six months;
• is bankrupt or has some legal disability;
• takes steps to or is closed down (such as becoming insolvent or entering sequestration);
• makes any settlement or arrangement with their creditors; or
• fails to pay a court order against themselves for a significant amount within 21 days;

then the other party may:

• make the party comply with the agreement; or
• immediately cancel the agreement in writing and claim damages from the other party, including fees already due.

Suspension. We may immediately suspend your right to use the services if:

• you try to gain unauthorised access to them;
• we decide that your use poses a security threat to us or another user other than you;
• there is evidence of fraud on your account; or
• we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.‍

Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

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Termination

Termination for good cause. We may need to terminate the agreement immediately if:

• we discontinue or stop providing the services;
• believe providing the services could burden or pose a risk to us;
• have to terminate to comply with a law; or
• determine that providing the services has become impractical.

If we need to terminate, we will give you as much notice as reasonably possible in writing.

Termination for convenience. We may terminate the agreement or a specific order on at least one calendar month's written notice to you.

Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.

Effect of Termination

Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry of the agreement.

Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions.

No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.

General

Resolving disputes. Either party must inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognised and appropriate forum for arbitration that is accessible to both parties.

Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.

Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

Relationship. The agreement does not create an employment relationship between the parties.

Entire agreement. The agreement is the entire agreement between the parties on the subject.

Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future services orders. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

Waiver. Any favour we may allow you will not affect any of our rights against you.

Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

Governing law. South African law governs this agreement.

1. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).
2. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree to appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.