-Terms & Conditions-
1.1. You have acquired access to a Smartwallet® software application (the “Application”)
1.2. By using the Application, you confirm that you have read and understood these Terms and Conditions and you acknowledge that the Terms and Conditions in their entirety shall apply to you.
1.3. The Terms and Conditions constitute a User agreement between you and SMARTWALLET (Pty) Ltd, a South African company with registration number 2021/695811/07 (the “Company”). These Terms & Conditions govern your use of the Application, as defined below.
1.4. The Company and any of its affiliates reserve the right to amend, modify, update and change any of these Terms and Conditions at any time. We advise you to check for updates on a regular basis. Any material changes to these Terms and Conditions will be notified to you through email messaging to the email address specified as part of the registration process or by in-application messaging as and when possible to do so. Your continued use of the Application will be deemed to constitute your acceptance of such changes.
1.5. Special attention is required for important clauses of these Terms and Conditions which may limit the Company’s liability or involve some risk for you, and will be in bold and italics or highlighted.
2. DEFINITIONS & INTERPRETATION
2.1. We have defined some words for consistency. Defined terms appearing in these Terms and Conditions with their first letters in upper case will be given the meaning as defined, while the same terms appearing in lower case will be interpreted in accordance with their plain English meaning.
2.2. Unless the context of these Terms & Conditions clearly indicates a contrary intention: (i) the singular will include the plural and vice versa; (ii) a reference to any gender will include the other genders; and(iii) a reference to a natural person will include a legal/juristic entity.
2.3. Any references to legislation or rules or regulations, will refer to such legislation or rules or regulations as at the commencement date of these Terms and Conditions and as substituted or amended from time to time.
2.4. The following words will have the following meanings: (for mobile users, please see meanings on a computer or tablet)
3.1. In order to use the Application to initiate, specify details, and authorize Transactions, you must register as a User by following the prompts displayed after you have opened the Application.
3.2. The registration process will require you to give permissions/access to your Personal Information or information pertaining to the organization that you represent in order to enable the Company to do the necessary verification required to comply with applicable financial intelligence laws and regulations.
3.3. When you register you will be prompted to create a User Profile with authorities for the secure use of the Application.
3.4. You hereby authorize the Company, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate the information provided. This may include asking you for further information and/or documentation about your Bank Account usage or identity, or requiring you to take steps to confirm your email address, telephone numbers or other information provided, and verifying your information against third party databases or through other sources. This process is for internal verification purposes.
3.5. Following your successful registration as a User, a Value Store Account will be automatically opened in your name or the name of the organization that you have registered.
4. USE OF THE APPLICATION
4.1. You must not:
a. copy or reproduce all or any part of the Application;
b. alter, modify or adapt all or any part of the Application;
c. remove or tamper with any copyright notice attached to or contained within the Application; or
d. carry out reverse engineering of the Application.
4.2. You represent and warrant to the Company that:
a. all information provided to the Company is true and accurate in every respect and you will keep all such information up to date during the term of these Terms and Conditions;
b. you will only use the Application for your own purposes, or where explicitly authorized, on behalf of another entity or person;
c. you and all payments initiated by you will comply with all laws, rules, and regulations; and
d. you will not use the Application, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the functionality of the Application.
4.3. You should only use the latest version of the Application. Your Application Store will notify you of any updates/upgrades that become available for your mobile Application. If you are not using the latest version, the mobile Application may not function correctly, and you may experience security and/or data flaws, for which we will not be liable under any circumstances. Your Smartwallet account balance will, however, at all times be secure, irrespective of the version of the Application you are using.
5. FEES AND COSTS
5.1. There may be a once-off or monthly subscription fee to utilize the Application.
5.2. The Company will charge you the fees that apply to the Transaction type made using the Application. Transaction fees are calculated on Transaction value and rounded up to the nearest sub-unit of the currency of the Transaction. The minimum fee is 1 cent (excluding VAT).
5.3. The value of the Transaction on the Application is the total amount payable for goods and/or services or transfers and includes relevant fees applicable to the type of Transaction.
5.4. Where applicable value-added tax will be charged.
6. TRANSACTING THROUGH THE SERVICE
6.1. All Transactions effected through the Service are irrevocable. Any reversal of funds needs to be handled as a new separate Transaction.
6.2. You must ensure that you complete each Transaction fully and completely. Although the Licensor has taken reasonable steps in the Application to prevent you from making mistakes, the Company is not responsible for any loss or damage you may suffer because you made an error, including but not limited to, paying the wrong counterparty, entering an incorrect amount, or erroneously repeating a Transaction.
6.3. You must not assume that a Transaction is successfully completed until you have received notification from the Service that the Transaction has been finalized and is indicated as such in the history feature of the Application.
6.4. You hereby agree to receive only electronic information via a website and/or mobile Application with regards to your Transactions effected through the Service.
6.5. You represent and warrant that:
a. You have full contractual capacity;
b. You are not, and will not be, located in any country that is the subject of the United States of America (US) Government embargo or that has been designated by the US Government as a “terrorist supporting” country;
c. You are not listed on any US Government list of prohibited or restricted parties;
d. You have given the Company the correct information;
e. You have read and understood these Terms and Conditions;
f. You undertake to abide by the usage rules around the software as provided by the Application Store, and the hardware and usage rules as required by these Terms and Conditions.
6.6. The Company may, at its sole and absolute discretion, impose limits on the Transaction value and accumulated Transaction value over a predefined period. Transaction limits are determined by your FICA Status Level and could be changed from time to time in the Company’s sole discretion or as directed by law.
6.7. Transaction investigation is a process by which the Company reviews certain potentially high-risk Transactions. If a Transaction is subject to investigation, the Company might place a hold on the payment and may provide notice to the recipient. The Company will conduct a review and either clear or cancel the Transaction. If the Transaction is cleared, the Company will provide notice to the registered participant. Otherwise, the Company will cancel the Transaction and the value will be returned. The Company may provide notice to you by email and/or in the Transaction history feature of the Application if the Transaction is cancelled.
7. APPLICATION SECURITY
7.1. You are responsible for the protection of your Access Codes and Access Devices.
7.2. Instructions received from your Application, in your name, will be treated as valid instructions and will be processed. The Company cannot be held responsible for unauthorized use of the Application.
7.3. You must always look after your Access Codes and keep them secret and safe to prevent other persons from using them. If you do not, you give up any claim you may have against the Company for any loss or damage you may suffer.
7.4. After your Access Codes have been entered, the Service will assume that the Transaction is genuine. Even if someone else used your Access Codes, the Service will process the Transaction as if you authorized it. You must make sure that you log out of the Application when you have finished using it to prevent anyone else from using it.
7.5. The Application makes provision for you to set a number of Transaction value limits for your protection and convenience.
7.6. All uses of the Application and Transactions through it are protected by encryption on par with international standards. The Personal Information you send through the Application is encrypted. Only the Company’s authorized employees or agents have access to information related to the Application.
7.7. The Application gives you the opportunity to choose a password and a PIN to gain access to the Application itself or to various features within the Application.
7.8. As long as the correct password or PIN is entered (or if you elect not to use a password or a PIN), the Service will assume that you are the person giving instructions and making payments and you will be liable for them. You must therefore choose a secure password and PIN that is not easily guessed by another person, keep the password and PIN secret and make sure that it is not stored in a way that enables others to access it or impersonate you. In addition, for the avoidance of doubt, if you disclose the password or PIN to any person whom you authorize to access the Application, you are also responsible and liable for any access, use, misuse or disclosure of your password or PIN by such person.
7.9. The Company may also use biometric recognition technology for payment verification and fraud prevention purposes.
7.10. If you become aware that an Unauthorised Transfer had been made via the Application, or if you lose the Access Device on which the Application is installed, or if you have disclosed your password to another person, or believe that someone else could be using the Application by impersonating you, you should inform the Company immediately by email firstname.lastname@example.org and the Service will disable features of the Application until you reset your password and PIN using the Application. Unless and until you provide such notice:
a. You will be responsible for any instruction which the Service receives and acts on, even if it was not given by you; and
b. The Company will not be responsible for any unauthorized access to confidential information or Personal Information about you in the Application.
7.11. The Service will reject any instruction where an instruction: (i) contains an error; (ii) might cause the Company to breach a legal or other duty; (iii) if the Company believes the Application is being used for an illegal purpose; or (iv) may harm the Company’s or the Service’s reputation.
7.12. You agree to fully cooperate with the Company or its agents, regulatory authorities and the police where you or the Company suspect there have been Unauthorised Transfers in respect of the Service.
8. SOFTWARE AND HARDWARE
8.1. You must use software and hardware suitable for the Application. If you do not, the Application may not work properly, and this could increase your security risks.
8.2. In order to use the Application on your mobile phone or tablet, you are required to have a smartphone of the necessary minimum specifications (“Software Requirements”).
8.3. The minimum Software Requirements are as follows: Apple IOS devices running at least iOS 6 and Android OS devices running at least Android OS 4; Language: English.
8.4. The version of the Application software may be upgraded from time to time to add support for new features and functions.
9. PERSONAL INFORMATION PROCESSING AND DATA PROTECTION
9.1. Personal Information Processing:
a. If the Application processes Personal Information, the Company agrees to process the User’s Personal Information to which these Terms and Conditions apply and in particular agrees that it shall:
i) Process the Personal Information at all times in accordance with the South African Protection of Personal Information Act, No. 4 of 2013, (“the POPI Act”) and solely for the purposes of these Terms and Conditions, and for no other purpose or in any manner except with the express prior written consent of the User;
ii) in a manner consistent with the POPI Act, implement appropriate technical and organizational measures to safeguard the Personal Information from unauthorized or unlawful processing or accidental loss, destruction or damage, and that having regard to the state of technological development and the cost of implementing any measures, such measures shall ensure a level of security appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage;
iii) ensure that each of its employees, agents and subcontractors are made aware of and are trained in, its obligations under these Terms and Conditions with regard to the security, handling and protection of the Personal Information;
iv) not divulge the Personal Information whether directly or indirectly to any person, firm or company or otherwise without the express prior written consent of the User except to those of its employees, agents and subcontractors who are engaged in the processing of the data.
b. The Company will comply with any legitimate request from the User to amend, transfer or delete Personal Information.
c. If the Company receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Information, the Company shall provide the User with full cooperation and assistance in relation to any complaints, notices or communications. In particular the Company will:
i) not process or transfer the Personal Information outside of the Republic of South Africa except with the express prior written authority of the User; and
ii) allow its data processing facilities, procedures and documentation to be submitted for scrutiny by the User or its representatives, where warranted, in order to ascertain compliance with these Terms and Conditions.
9.2. Data protection:
a. The Company may, and you expressly consent to, the collecting and processing of your Personal Information by the Company to open, administer and operate your Profile and Value Store Account; provide any combination of services or analysis linked to the Application; monitor and analyse the conduct on your Profile and Value Store Account for fraud, compliance and other risk-related purposes; carry out statistical and other analyses to identify potential markets and trends; and develop new products and services.
b. You expressly consent that the Company may further process your Personal Information within the Group for the above purposes; disclose your Personal Information to any person who provides services to the Company or acts as an agent of the Company or to whom the Company has transferred or propose to transfer any of the Company’s rights and duties in respect of your Profile or Value Store Account (some of these persons may be located in countries outside of the Republic of South Africa); and share your Personal Information with Company services providers, locally and outside the Republic of South Africa, as necessary. The Company asks persons who provide services to agree to the Company’s privacy policies if they need to access any Personal Information to carry out their services.
c. You acknowledge that: the Company will at all times remain responsible for determining the purpose of and means for processing your Personal Information; the Company is required by various laws to collect some of your Personal Information, without which the Company may be unable to offer the Services to you; and you are giving the Company your Personal Information voluntarily.
10. WARRANTIES AND UNDERTAKINGS
10.1. The Company represents, warrants and undertakes that:
a. it shall, at all times, provide and perform the Services and exercise the powers, rights and duties (or any of them) conferred upon it pursuant to these Terms and Conditions in good faith and with skill, care and diligence by properly qualified and experienced persons;
b. it shall not utilise its ability to access any confidential information including but not limited to the private, personal or financial information about any User for its own benefit or for the benefit of any third party other than the South African Regulatory Authorities, unless written permission for use is provided by the User to the Company.
10.2. Correction of errors by the Company. In the event of any error or omission in the Services or failure of the Company to provide the Services in accordance with these Terms and Conditions:
a. The User shall notify the Company of the alleged error or omission forthwith after it arises or is ascertained; and
b. Following notification, the Company shall use all reasonable endeavours and shall at its own cost be allowed a reasonable time in which to correct or otherwise remedy the error or omission;
c. The Company shall promptly notify the User of any material error or omission that may affect the Services.
10.3. The Company’s Indemnity. The Company hereby indemnifies the User against any losses, claims, damages or liabilities (including legal or other expenses reasonably incurred in relation thereto) to which such person may become subject by reason of the fraud, negligence or wilful default of the Company or of any of its officers, employees or agents.
10.4. Direct damages. Notwithstanding anything to the contrary in these Terms and Conditions, either party’s liability to the other party for any reason and upon any cause of action or claim in contract or delict, including without limitation breach of these Terms and Conditions or any warranty hereunder, regardless of form of action, shall not exceed direct damages proved.
10.5. Indemnification process. If any party wishes to assert its rights to be indemnified as set forth in these Terms and Conditions, it must:
a. promptly notifies the indemnifying party of any claim or legal proceedings which gives rise to such right and make no admission or settlement with respect thereto;
b. affords the indemnifying party the opportunity to participate in and jointly control any compromise, settlement or other resolution or disposition of such claim or proceedings (subject to being fully indemnified and secured by such other to the party’s reasonable satisfaction); and
c. fully co-operates with the reasonable requests of the indemnifying party (and at the indemnifying party’s reasonable expense) in its participation and joint control of any compromise, settlement or resolution or other disposition of such claim or proceeding.
10.6. Indemnity not exclusive of other remedies. Any indemnity given by either party under these Terms and Conditions is in addition to and without prejudice to any indemnity allowed by applicable law and shall survive termination of these Terms and Conditions.
10.7. In addition to any other warranties that may be present in these Terms & Conditions, any Card Payment Recipient warrants and represents that, as at the acceptance date of these Terms & Conditions:
a. it has never had a merchant agreement terminated at the direction of any Payment Scheme, regulatory authority or court of law;
b. it complies and will continue to comply with Sanctions and will not enter into any sanctioned transactions, nor with any Person on a Sanctions List;
c. it complies and will continue to comply with all the rules (including PCI DSS) and applicable laws;
d. all information supplied to the Company is true, accurate and complete in all respects;
e. it will not do anything, or engage in any activity, which is likely to adversely affect or damage the Company and/or it’s bank’s good name and/or reputation.
10.8. The presentation of a Transaction to the Company in terms of these Terms & Conditions will be a warranty by the Card Payment Recipient thata) the Merchant has supplied the goods and/or services to the value stated on the Receipt to the Cardholder;
b. no fictitious and/or fraudulent Transactions were processed by the Card Payment Recipient to increase the Card Payment Recipient’s cash flow;
c. the Transaction is not illegal;
d. the Card Payment Recipient has taken all the necessary steps to ensure that the Cardholder is the authorised user of the card;
e. the Transaction has been authorised by the Cardholder;
f. the individual presenting the card is the authorised Cardholder;
g. there has been due compliance with all the terms of these Terms & Conditions; and
h. it indemnifies the Company against any claim or liability that may arise from a Transaction dispute.
10.9. The Company shall not be liable to the Card Payment Recipient nor to any third party for any loss or damage of whatsoever nature, howsoever arising (including consequential or incidental loss or damage which shall include but not be limited to, damage to property or loss of profit, business, goodwill, revenue, or anticipated savings) unless such loss or damage arises from wilful misconduct or gross negligence on the part of the Company.
11. LIMITATIONS OF LIABILITY
11.1. This section 11 sets out the entire liability of the parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to each other in respect of: any breach of these Terms and Conditions; any use of the Application made by you or the Company’s affiliates of the Application; and any representation, statement or delicta act or omission (including negligence) arising under or in connection with these Terms and Conditions.
11.2. In case of an Unauthorized Transfer, the Company will at your request refund the Unauthorized Transfer, except in the following cases (where you shall remain solely liable for all losses):
a. where the Unauthorized Transfer arises from your election not to use a password to access the Application or features of the Application;
b. where the Unauthorized Transfer arises from your failure to create a secure password or to protect and keep secure your password in accordance with section 7;
c. if you fail to notify the Company without undue delay of any loss of your password or other event that could reasonably be expected to have compromised the security of the Application after you have gained knowledge of such event in which case you shall remain liable for losses incurred up to your notification to us;
d. if you have compromised the security of the Application with intent or negligence; or
e. If you fail to dispute and bring the Unauthorized Transfer to the Company’s attention within 30 (thirty) days from the date of the Unauthorized Transfer.
11.3 The Company shall not be liable in contract, delict, negligence, or otherwise, for any loss or damage whatsoever arising from or in any way connected with your interaction and/or Transaction with any third-party website via the Application. The Company is not responsible for the content of any linked sites.
11.4 You confirm that the Company shall not be liable to you or any third party for any modification to, suspension of, or discontinuance of the Application.
11.5 Nothing in these Terms and Conditions shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, the indemnification obligations referred to in section 10 or any other liability that cannot be excluded by applicable law.
11.6 Without prejudice to section 11.5:
11.6.1 our total liability arising under or in connection with these Terms and Conditions, whether arising in contract, delict (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the repayment of Unauthorized Transfers made in accordance with and subject to section 11.2 above;
11.6.2 neither party shall be liable to the other, whether in contract, delict (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: (i) losses that are not reasonably foreseeable; or (ii) special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with these Terms and Conditions.
11.7 No party shall be liable for any delay in or failure to perform obligations they have undertaken in these Terms and Conditions as a result of events beyond their reasonable control which cannot reasonably be avoided or overcome, while such events persist.
12 CARD PAYMENTS
12.1 The Company acts as an intermediary between the Card Payment Recipient and the Bank, acquires information supplied from the Card Payment Recipient and the Bank and the System processes transactions in good faith.
12.2 The Company does not guarantee the correctness of information acquired or supplied and can in no way be held liable by the Card Payment Recipient for any damages suffered by the Card Payment Recipient acting upon such information.
12.3 Any dispute between the Bank and the Card Payment Recipient howsoever arising, which includes, but is not limited to, a dispute regarding:
a. the value of reversals of invalid sales (“charge backs”);
b. any discount;
c. any refund due to a cardholder;
d. any overpayment;
e. the value of any transaction;
f. the debiting of any Card Payment Recipient’s account; is deemed to be a dispute between the Bank and the Card Payment Recipient and the Company is not a party thereto.
12.4 The Company will in no way be held liable by the Card Payment Recipient for any damages suffered by such Card Payment Recipient pursuant to such dispute.
12.5 Notwithstanding the above, the Card Payment Recipient will be liable to the Company for any act or omission of the Card Payment Recipient, or its employees, agents or representatives;
12.6 Any dispute, unless resolved amongst the Party’s, will be resolved in accordance with the provisions of Clause 18 of these Terms & Conditions.
12.7 The Company is not authorized to hold funds on behalf of customers or merchants and has appointed a duly authorized and licensed financial services provider to act as independent custodian of customer’s funds as required by law.
12.8 All funds held in the Value Store are at all times protected against internal theft, mismanagement and/or fraud under a fidelity guarantee insurance policy.
12.9 The Company is entitled to appoint any company approved by the Financial Market Conduct Authority, which company is duly authorized to receive and/or hold assets in trust in the name of the Merchant.
13.1 Your use of the Application is dependent on factors beyond the Company’s control, such as your network’s coverage or availability, your ISP’s availability, or your Access Device’s capability or capacity.
13.2 The Company is not liable for any loss or damages you may suffer if a factor beyond the Company’s control arises, and you cannot access the Service.
13.3 The Company (including its employees, consultants, agents, or any affiliated person) is not responsible for any loss or damages related to your use of the Application or any Intellectual Property flowing from its use. This includes, without limitation, any direct, indirect, special, incidental, or consequential damages in terms of contract, delict (breach of duty or care) or law.
13.4 The Company is not responsible for any loss or damage where:
13.4.1 Someone finds out what your Access Codes are;
13.4.2 Any technical or other problem (interruption, malfunction, downtime or other failure) that affects the Application, the banking system, a third-party system or any part of any database for any reason;
13.4.3 Any Personal Information or other data is directly or indirectly lost or damaged because of technical problems, power failures, unlawful acts (such as data theft), any harmful computer program or virus, or your own negligence;
13.4.4 Any failure or problem affects goods or services provided by any other party for example any telecommunication service provider, ISP, electricity supplier, local or other authority; or
13.4.5 Any event that the Company has no control over.
14 MARKETING, EMAIL OR TEXT MESSAGES
14.1 If you give the Company permission, the Company may use your Personal Information to send you information about the Services, and special offers from the Company or other companies that may interest you. The information will be sent to you via e-mail, Whatsapp, text messages or in-Application notifications. If you decide that you do not want to receive such information from the Company you can notify the Company to stop doing so.
15.1 The Company may stop you from using the Application if you breach a clause of these Terms and Conditions and do not remedy it within 24 (twenty-four) hours after being requested to do so. The Company may still take other steps available, including applying to a court for an urgent interdict against you.
16 INTELLECTUAL PROPERTY
16.1 The Company acknowledges that SmartWallet holds all Intellectual Property Rights to the Application, the Value Store, all content (including, but not limited to, all proprietary information, trademarks and copyright in any logos and other devices or storage media) in or sent to, through and from the Application save where otherwise indicated in writing by the Company.
16.2 The Company offers the Service to you under license by SmartWallet.
16.3 You are granted a license to install and use the Application until terminated in line with these Terms and Conditions, which termination will result in the cancellation of your access to the Application.
16.4 Certain content available on the Application may include content that belongs to third parties. The Company may provide links to third-party websites, as a convenience to you. You agree that the Company is not liable for any of the following:
16.4.1 The content or the accuracy of any such content belonging to third parties, featured on the Application;
16.4.2 Any content featured on the third-party websites that are accessed through links made available in the Application;
16.5 You may not copy, republish, distribute, adapt, modify, alter, de-compile, reverse engineer, or attempt to derive the source code of or create a derivative of works or, otherwise attempt to reproduce the Application, its contents, including any Intellectual Property therein, its design, any updates to the Application and/or any proprietary features in relation to it, or any parts of it. This prohibition extends to any and all content belonging to third parties that is found on the Application and/or any content featured on the third-party websites which are accessed through links that are found on the Application. You may not sub-license such third-party content, including Intellectual Property Rights associated with it.
16.6 You acknowledge that you:
16.6.1 will in no way represent that you have any rights of any nature in any current and future Intellectual Property belonging to the Company and/or any third parties featured on the Application;
16.6.2 will not use the Company’s and/or any third party that is featured on the Application’s current and future Intellectual Property in any manner whatsoever or any other Intellectual Property which is identical, similar and/or confusingly similar thereto in any country;
16.6.3 will not apply for or obtain registration of the Company’s and/or any third party that is featured on the Application’s current and future Intellectual Property or any other Intellectual Property which may be confusingly similar thereto in any country;
16.6.4 will not challenge rights of the Company’s and/or any third party that is featured on the Application to its current and future Intellectual Property in any country;
16.6.5 will not do, or omit to do, or cause to be done any act or thing which would be expected to weaken, damage, be detrimental to or in any way impair or tend to impair the Company’s and/or any third party that is featured on the Application’s current and future Intellectual Property or the reputation and goodwill associated therewith or the Company and/or any third-party featured on the Application, or which would be expected to jeopardize or invalidate any registration of the Company’s and/or any third party that is featured on the Application’s current and future Intellectual Property; and
16.6.6 will not use, register or attempt to register as trade names, corporate names, business names, logos, domain names, meta-tags, meta descriptors, electronic mail (e-mail) addresses, server names, or search-engine markers anything that is identical to, contained in whole or in part, or is otherwise confusingly similar to the Company’s and/or any third party that is featured on the Application’s current and future Intellectual Property in any country.
16.7 You may not establish a hyperlink, frame, metatag, similar reference, whether electronically or otherwise, or any other reference to the Application without the Company’s prior written consent.
16.8 You indemnify the Company against all actions, claims, costs, demands, expenses and other liabilities suffered or incurred by the Company as are the result of any third-party claims initiated and/or instituted against the Company relating to your unauthorized use of the Application, the content thereon and/or any other Intellectual Property and Intellectual Property Rights flowing from the foregoing.
16.9 Any breach of the terms under clause 15 entitles the Company, in addition to the normal common law remedies, to take legal action without prior notice to you and you agree to reimburse the costs associated with such legal action to the Company on an attorney and own client scale.
17.1 The Company may change these Terms and Conditions at any time. The Company will give you written notice of any change.
17.2 If any term, condition, requirement or provision contained in these Terms and Conditions is held by any court having jurisdiction to be unenforceable, illegal, void, or contrary to public policy, such term, condition, agreement, requirement or provision will be of no effect whatsoever upon the binding force or effectiveness of any of the remainder of these Terms and Conditions. The parties declare that had they or either of them known of such enforceability, illegality, invalidity or that the provision was contrary to public policy, they would have entered into an agreement, containing all the other terms and conditions set out in these Terms and Conditions.
17.3 The Company may terminate the Application any time, without notice. In termination of your registration to the Application, all rights granted to you in respect of the Application will cease immediately.
17.4 If your Account is stopped or cancelled for any reason, the Company may suspend your access to the Application, until you have a new account registered on the Application.
17.5 South African law will govern these Terms and Conditions. Use of the Application to send money out of South Africa is subject to exchange control and is not covered by these Terms and Conditions.
18 CARD PAYMENT DISPUTE RESOLUTION PROCESS
18.1 Informal dispute resolution: Prior to the initiation of formal dispute resolution procedures as outlined in these Terms & Conditions, the Card Payment Recipient and the Company shall first attempt to resolve their dispute informally as follows:
18.1.1 Upon the written request of a Party, any dispute that arises between the Parties shall be referred to a joint committee appointed by the Company and the Card Payment Recipient. The joint committee shall meet as often as the Parties reasonably deem necessary in order to gather and to furnish to the other all information with respect to the matter in issue which the Parties believe to be appropriate and germane in connection with its resolution. The joint committee shall discuss the problem and attempt to resolve the dispute without the necessity of any formal proceeding. During the course of discussion, all reasonable requests made by one Party to another for non-privileged information, reasonably related to these Terms & Conditions, shall be honored in order that each of the Parties may be fully advised of the other’s position. The specific format for the discussions shall be left to the discretion of the joint committee.
18.1.2 Should the Parties not resolve the dispute in terms of clause 18.1.1 within a period of 14 (fourteen) days, the dispute shall be referred by the joint committee to the Chief Executive Officer (CEO) of the Company and a suitable representative from the Card Payment Recipient, who shall follow a dispute resolution process similar to the process described in clause 18.1.1.
18.1.3 Formal proceedings for the resolution of a dispute may not be commenced until the earlier of the Parties referred to in clause 18.1.2 concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely, or 14 (fourteen) days after the matter has been referred to them pursuant to clause 18.1.2. This period shall be deemed to run notwithstanding any claim that the process described in this clause was not followed or completed.
18.2 Formal Dispute Resolution: Save in respect of those provisions of these Terms & Conditions which provide for their own remedies which would be incompatible with arbitration, a dispute that arises in regard to –
18.2.1 the interpretation of; or
18.2.2 the carrying into effect of; or
18.2.3 any of the Parties’ rights and obligations arising from; or
18.2.4 the termination or purported termination of or arising from the termination of; or
18.2.5 the rectification or proposed rectification of these Terms & Conditions, or out of or pursuant to these Terms & Conditions or on any other matter which in terms of these Terms & Conditions requires agreement by the Parties, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be submitted to and decided by arbitration.
18.3 That arbitration shall be held –
18.3.1 with only the Parties and their representatives including legal representatives, present there;
18.3.2 in Pretoria or Johannesburg, South Africa.
18.4 The arbitration shall be subject to the arbitration legislation for the time being in force in South Africa.
18.5 The arbitrator shall be, if the matter in dispute is principally –
18.5.1 a legal matter, then an impartial practicing advocate of not less than 15 (fifteen) years’ standing, or an impartial practicing attorney of not less than 15 (fifteen) years’ standing;
18.5.2 an accounting matter, then an impartial practicing-chartered accountant of not less than 15 (fifteen) years’ standing;
18.5.3 any other matter, then an independent person agreed upon between the Parties.
18.6 If the Parties fail to agree on an arbitrator within 14 (fourteen) days after the arbitration has been demanded, the arbitrator shall be nominated, at the request of either Party by the President for the time being of the Legal Practice Council (or its successor). If that person fails or refuses to make the nomination, either Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the High Court is expressly empowered to do so.
18.7 If the Parties fail to agree whether the dispute is a legal, accounting or other nature within 10 (ten) days after the arbitration has been demanded, it shall be considered a matter referred to in clause 18.5.2.
18.8 The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential unless otherwise contemplated herein.
18.9 The arbitrator shall be obliged to give his award in writing fully supported by reasons.
18.10 The provisions of this clause are severable from the rest of these Terms & Conditions and shall remain in effect even if these Terms & Conditions is terminated for any reason.
18.11 The arbitrator shall have the power to give default judgment if any Party fails to make submissions on due date and/or fails to appear at the arbitration.
19.1 The Company chooses the registered address on the Company website at www.smartwallet.co.za as the address where legal documents or notices must be served or delivered to the Company.
19.2 The Company will send any legal documents or notices to you at the address the Company has for you on the Company records.
19.3 The Company may send any other written communication to your street, postal or e-mail address, or through the Application messaging mechanism. The Company will regard a communication sent by email as having been received by you one day after it was sent.
19.4 Any legal document of notice to be served in legal proceedings must be written on paper. The relevant provisions of the Electronic Communications and Transactions Act 35 of 2002 do not apply to these legal documents or notices.
20 COMPANY CONTACT INFORMATION
20.1 If you have any questions about the Application you can send an email to email@example.com
20.2 If you have any questions about a product or service obtained from a merchant, service provider or other organisation, you must contact the provider of the goods or services directly