-Last Updated: March 2020-
PLEASE ENSURE THAT YOU’VE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THE SAY SIYABONGA WEBSITE OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THIS 1) SAY SIYABONGA USER AGREEMENT, THE 2) SAY SIYABONGA ACCEPTABLE USE POLICY, THE 3) 4) . IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OUR WEBSITE OR USE OUR SERVICES. YOU SHOULD PRINT A COPY OF THESE TERMS AND CONDITIONS FOR YOUR RECORDS.
1. OUR AGREEMENT
1.2. CHANGES MADE TO THIS AGREEMENT: We may unilaterally decide to change this Agreement from time to time, provided, however, that such changes will not impose additional obligations on you concerning actions you had taken before the change became effective unless you specifically agree to such changes. If Say Siyabonga makes any changes to this Agreement that it deems to be material, it will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted on our website from time to time to see if it has been changed.
1.3. THE DEFINITIONS AND RULES OF INTERPRETATION APPLICABLE TO THIS AGREEMENT: The definitions and rules of interpretation contained in our Say Siyabonga Legal Definitions document are applicable to this Agreement.
1.4. To be eligible to use the Services, you must be at least 18 years old and a resident of the Republic of South Africa or those territories within which we may elect to conduct business within from time to time. You represent and warrant that you are eligible to use the Services.
2. OUR SERVICES
2.1. The Say Siyabonga Service: Say Siyabonga is an online marketplace designed to combat the negative economic and financial impact of the COVID-19 pandemic by empowering and supporting Say Siyabonga Merchants through the sale of vouchers related to their goods and/or services to you, the Say Siyabonga User.
2.2. PAYMENT: Before completing any transaction on your behalf through any Say Siyabonga Services, Say Siyabonga will secure your promise to pay by disclosing all terms and conditions applicable to that transaction and securing your affirmative consent to those terms for that transaction, including your promise to pay the amount of the goods and services to the Say Siyabonga Merchant or Say Siyabonga.
2.3. HOW TO BECOME A SAY SIYABONGA USER: To become a User of the Say Siyabonga Services, you must create a Say Siyabonga User Account. By opening a User Account and accepting the terms as outlined in this Agreement, you attest that you are establishing the Account to enable yourself to purchase vouchers related to the goods and services from Say Siyabonga Merchants.
2.4. OUR ROLE IN YOUR TRANSACTIONS: Say Siyabonga is not engaged in the sale of any of the vouchers related to the goods or services purchased by you from a Say Siyabonga Merchant. Say Siyabonga does not have control of, or liability for, the vouchers, products or services purchased through our platform.
3. USING SAY SIYABONGA:
3.1. PURCHASES: You can use Say Siyabonga to purchase vouchers that relate to the goods and/or services of Say Siyabonga Merchants by using Say Siyabonga functionality on Say Siyabonga Merchant sites and interfaces. Payment mechanisms used by us to process your purchase may include but are not limited to, bank accounts, credit cards, and debit cards. If a bank account is used as your selected payment method, you are requesting an electronic transfer from your bank account. For these transactions, Say Siyabonga will make electronic transfers from your bank account in the amount you specify. You agree that you grant authorization to Say Siyabonga to make the transfers from any of your bank account(s), debit card(s) and/or credit card(s) to fulfil your deposit payment, or a missed or failed payment. You give Say Siyabonga the right to resubmit any transaction you authorized that is returned for insufficient or uncollected funds or any other reason.
3.2. SIZE LIMITS: We may, at our discretion, impose limits on the amount of money you can use to purchase vouchers through the Say Siyabonga Services.
3.3. REFUNDS: The refund process applicable to you shall be dealt with in accordance with the terms and conditions agreed to between yourself and the applicable Say Siyabonga Merchant. We play no role in the refund process.
3.4. PAYMENT REVIEW: We have a payment review process whereby we review certain potentially high-risk transactions made by you. If a payment is subject to our payment review process, we will place a hold on the payment and provide notice to you and the relevant Say Siyabonga Merchant. Say Siyabonga will conduct a review and either clear or cancel the payment. If the payment is cleared, Say Siyabonga will provide notice to you and the Say Siyabonga Merchant. Otherwise, Say Siyabonga will cancel the payment and the funds will be returned to you.
3.5. CREDIT REPORTS: If you open a Say Siyabonga Account, you are providing Say Siyabonga with express authorization to obtain your personal credit report from a credit bureau. We are using this credit report as a supplement to our ‘Know Your Customer’ processes and to identify any business risks that may exist to Say Siyabonga in offering Say Siyabonga Services to you.
4. FEES AND INTEREST
We charge no interest and no up-front fees to Users for making purchases with Say Siyabonga Merchants via our platform. We reserve the right to add interest and fees to future purchases should our business model change. We will notify Users of all fees and interest if and when we decide to add interest and fees. This is a material change to the terms and conditions of this Agreement, therefore you will be notified accordingly and be afforded an opportunity to agree to these amended terms to the extent that may be necessary.
5. YOUR PRIVACY AND OUR PRIVACY POLICIES
5.2. PASSWORD SECURITY: You are responsible for maintaining adequate security and control of any and all IDs, OTPs, passwords, personal identification numbers (PINs), or any other codes that you use to access the Say Siyabonga Services.
5.3. IDENTITY AUTHENTICATION: You authorize Say Siyabonga directly or through third parties, to make any inquiries we consider necessary to validate your identity. We may ask for official documentation to prove your identity at any time. Say Siyabonga reserves the right to close, suspend, or limit access to your Account, Say Siyabonga and all Say Siyabonga Services in the event we are unable to obtain or verify this Information.
6. INTELLECTUAL PROPERTY
Say Siyabonga and all logos related to the Say Siyabonga Services are either trademarks or registered trademarks or copyright protected property of Say Siyabonga or Say Siyabonga licensors. You may not copy, imitate or use them without Say Siyabonga prior written consent. Also, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and trade dress of Say Siyabonga. You may not copy, imitate, or use them without our prior written consent.
7.1. YOUR LIABILITY: You are responsible for all fees, fines, penalties and other liability incurred by Say Siyabonga, a User, a Say Siyabonga Merchant, or a third party caused by or arising out of your breach of this Agreement, and your use of the Say Siyabonga Services. You agree to reimburse Say Siyabonga, a User, or a third party for any and all such liability.
7.2. REIMBURSEMENT FOR YOUR LIABILITY: If you are liable for any amounts owed to Say Siyabonga you authorize Say Siyabonga to process and collect such amounts from your Account or your bank account on file. If you do not have sufficient funds in your Account or your bank account, you acknowledge that Say Siyabonga may engage in collection efforts to recover such amounts from you.
8. RESTRICTED ACTIVITIES AND LIABILITY
8.1. In connection with your use of our website, your Account, Say Siyabonga Services, or in the course of your interactions with us, other Users, or third parties, you agree and undertake that you will not:
8.1.2. Violate any law, statute, ordinance, or regulation;
8.1.3. Infringe Say Siyabonga or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
8.1.4. Purchase illegal and/or counterfeit goods/services;
8.1.5. Act in a manner that is defamatory, threatening or harassing to Say Siyabonga, Say Siyabonga Users, Say Siyabonga Merchant or any third party;
8.1.6. Provide false, inaccurate or misleading information to Say Siyabonga and/or Say Siyabonga Users, Say Siyabonga Merchants and/or the general public;
8.1.7. Send or receive what we reasonably believe to be potentially fraudulent funds;
8.1.8. Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
8.1.9. Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
8.1.10. Conduct your business or use Say Siyabonga Services in a manner that results in or may result in complaints, disputes, fees, fines, penalties or other liability to Say Siyabonga Users, Say Siyabonga Merchants, third parties or you;
8.1.11. Have a credit score from a credit reporting agency that indicates a high level of risk associated with your use of Say Siyabonga Services;
8.1.12. Use your Account or Say Siyabonga Services in a manner that Say Siyabonga or any other EFT network reasonably believes to be an abuse of the EFT system or a violation banking law;
8.1.13. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website, mobile App or Say Siyabonga Services;
8.1.14. Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
8.1.15. Use Say Siyabonga Services to test payment behaviours;
8.1.16. Circumvent any Say Siyabonga policy or determinations about your Account such as temporary or indefinite suspensions or other limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional Say Siyabonga Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional Say Siyabonga Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Say Siyabonga Account;
8.2. ACTIONS BY SAY SIYABONGA: If Say Siyabonga in its sole and absolute discretion, believes that you may have engaged in any restricted activities, we may take various actions to protect Say Siyabonga Users, Say Siyabonga Merchants, other third parties, or you from fees, fines, penalties and any other liability. The actions we may take include, but are not limited to, the following:
8.2.1. We may close, suspend, or limit your access to your Account or Say Siyabonga Services (such as limiting your ability to accept payments, make withdrawals, or remove financial Information);
8.2.2. We may contact Merchants you have interacted with, contact your bank, and/or warn other Users, law enforcement, or impacted third parties of your actions;
8.2.3. We may update inaccurate Information you provided us;
8.2.4. We may refuse to provide Say Siyabonga Services to you in the future;
8.2.6. We may take legal action against you.
8.3. YOUR LIABILITY: You are responsible for all fees, fines, penalties and other liability incurred by a Say Siyabonga User, Say Siyabonga Merchants, or a third party caused by or arising out of your breach of this Agreement, and/or your use of Say Siyabonga Services. You agree to reimburse a Say Siyabonga User, or a third party for any and all such liability.
8.4. AUTHORISATION TO REIMBURSE: In the event that you are liable for any amounts owed to Say Siyabonga you authorize Say Siyabonga to immediately remove such amounts from your Account or your bank account on file. If you do not have sufficient funds in your Account or your bank account, you acknowledge that Say Siyabonga may engage in collection efforts to recover such amounts from you.
8.5. ACTIONS BY SAY SIYABONGA – COURT ORDERS OR OTHER LEGAL PROCESS: Say Siyabonga in its sole discretion, may take various actions including any limitation on your Account or the funds in it and/or releasing any or all of your funds in the event it receives notice of a court order or other legal process that restricts the use of or access to your funds or requires their release. Say Siyabonga will give notice of a limitation it makes to comply with a court order or other legal process, unless the court order or other process directs that Say Siyabonga does not provide you notice, in which case the court order or other process supersedes any notice obligation Say Siyabonga has undertaken or agreed to under the terms of this Agreement. Say Siyabonga has no obligation to contest or appeal from any such order or process.
8.6. ACTIONS BY SAY SIYABONGA – ACCOUNT CLOSURE, TERMINATION OF SERVICE AND RELATED MATTERS: If we close your Account or terminate your use of Say Siyabonga Services for any reason, we will provide you with notice of our actions. Except as expressly provided otherwise in this Agreement, if we limit access to your Account, including through a Reserve or hold, we will provide you with notice of our actions; we will also provide you with an opportunity to request restoration of access if, in our sole discretion, we deem it appropriate.
8.7. LIMITATION OF LIABILITY: IN NO EVENT SHALL SAY SIYABONGA IT’S, AFFILIATES, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, THE SAY SIYABONGA SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), UNLESS AND TO THE EXTENT PROHIBITED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SAY SIYABONGA, OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM:
8.7.1. YOUR USE OF OR YOUR INABILITY TO USE SAY SIYABONGA SITES AND SERVICES;
8.7.2. DELAYS OR DISRUPTIONS IN SAY SIYABONGA SITES AND SERVICES;
8.7.3. VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING SAY SIYABONGA SITES OR SERVICES OR ANY SITE OR SERVICE LINKED TO SAY SIYABONGA ’S SITES OR SERVICES;
8.7.4. GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN SAY SIYABONGA SITES OR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM;
8.7.5. THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES;
8.7.6. A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT;
8.7.7. YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS MERCHANT AGREEMENT OR SAY SIYABONGA POLICIES.
SAY SIYABONGA RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS MERCHANT AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
8.8. No Warranty: THE SAY SIYABONGA SERVICES ARE PROVIDED WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, TACIT OR STATUTORY. SAY SIYABONGA, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF SAY SIYABONGA OUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Say Siyabonga does not have any control over the products or services that are paid for with Say Siyabonga Services and Say Siyabonga cannot ensure that the party you are transacting with will actually complete the transaction or is authorized to do so. Say Siyabonga does not guarantee continuous, uninterrupted or secure access to any part of Say Siyabonga Services, and operation of our site may be interfered with by numerous factors outside of our control. Say Siyabonga will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Say Siyabonga makes no representations or warranties regarding the amount of time needed to complete processing because Say Siyabonga Services are dependent upon many factors outside of our control, such as delays in the banking system.
9. INDEMNIFICATION AND RELEASE
9.1. You irrevocably agree to defend, indemnify and hold Say Siyabonga our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of Say Siyabonga, our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of Say Siyabonga Services, and/or your violation of any law or the rights of a third party.
9.2. If you have a dispute with one or more Users, you release Say Siyabonga and our, Affiliates, directors, agents, joint ventures, employees and suppliers, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
10. ACCOUNT CLOSURE
You may close your Account at any time by following the instructions in your Account Profile or the instructions we may communicate to you from time to time. Please be advised that you shall not be entitled to close your Account to evade liability to any third party or investigation by any authority. If you attempt to close your Account while we are conducting an investigation, we may hold your Balance for a period of time to be determined by us in our sole and absolute discretion. You will remain liable for all obligations related to your Account even after the Account is closed. You agree to an extended funds settlement period to be determined by us, in our sole and absolute discretion, at account closure to ensure funds are available for returns and refunds.
11. BREACH, TERMINATION & DISPUTES
11.1. BREACH AND TERMINATION RESULTING FROM BREACH: In the event that either Party (‘the Defaulting Party’), –
11.1.1. Commits any breach of any of its obligations in terms of this Agreement, and in the case of a remediable breach, fails to remedy that breach within 5 (Five) business days (or such longer period as may be agreed by the Parties) of receipt of a notice requiring that the breach be remedied;
11.1.2. Commits an act of insolvency, be placed under business rescue or be wound-up (whether provisionally or finally);
11.1.3. Compromises with any of its creditors or endeavours or attempts to do so;
11.1.4. Has made any incorrect or untrue statement or representation in connection with this Agreement, or its financial affairs, or any particulars thereof;
11.1.5. In the case of the Licensee, does or suffers to be done anything which might prejudice the Licensor’s rights in terms of this Agreement, or which might cause the Licensor to suffer any loss or damage, or allows the Payment Solution to be attached under any legal process issued against it; and
11.1.6. Ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due, then, subject to the remainder of the content of this Agreement, the other Party (‘the Innocent Party’) shall, without prejudice to any of its rights and remedies at law or in terms of this Agreement be entitled to cancel this Agreement and claim damages from the Defaulting Party.
11.2. Subject to the remainder of the content of this Agreement, the termination of this Agreement, for whatever reason, shall not affect the rights of either of the Parties at law or in terms of this Agreement –
11.2.1. that may have accrued before the termination of this Agreement; or
11.2.2. which specifically or by their nature survives the termination of this Agreement.
12.2. 8 The Refinery, 17 Owl Street, Johannesburg, Gauteng
12.3. In order to contact you more efficiently, we may at times contact you using calls or text messages at the telephone number(s) you have provided us. We may place such calls or texts to (i) provide notices regarding your Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we and our service providers may contact you using autodialled or pre-recorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these interests, but will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We and our service providers will not use autodialled or pre-recorded message calls or texts to contact you for marketing purposes at the telephone number(s) you designate unless we receive your prior express written consent.
12.4. You understand and agree that Say Siyabonga may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Say Siyabonga or its agents for quality control and training purposes or for its own protection.
12.5. You acknowledge, understand and further agree that, while your communications with Say Siyabonga may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by us, and we do not guarantee that recordings of any particular telephone call will be retained or retrievable from us.
13.1. STATUS OF AGREEMENT: This Agreement supersedes and replaces any and all agreements between the Parties and undertakings given to or on behalf of the Parties in relation to the subject matter hereof.
13.2. CONTINUATION OF CERTAIN RIGHTS: The expiration, cancellation or other termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.
13.3. WHOLE AGREEMENT: This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and save as may be expressly set out herein, no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
13.4. LENIENCY: No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights an enforcing the obligations of the other Party in terms of this Agreement.
13.5. NON-VARIATION: No addition to, alteration, cancellation, variation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
13.6. SEVERABILITY: Each of the provisions of this Agreement is separate and severable and enforceable accordingly. If any such term or condition is or becomes unenforceable for any reason whatsoever, that term or condition is severable from and shall not affect the validity of any other term or condition contained in this Agreement.
13.7. CESSION OF RIGHTS: You shall be entitled to cede, assign or delegate any of his rights and/or obligations in terms of or arising from this Agreement to any third party without the prior written consent of Say Siyabonga
13.8. FORCE MAJURE: Neither Party shall have any liability whatsoever to the other Party or be deemed to be in default of this Agreement as a result of any delay or failure in performing its obligations in terms of this Agreement to the extent that any such delay or failure arises from causes beyond the control of such Party, including but not limited to acts of God (including flooding and earthquakes), acts or regulations of governmental nature or supra national authority, war or national emergency, accident, fire, riot, strikes, lockouts and industrial disputes, provided that such Party shall give prompt notice to the other Party of such occurrence and shall make all reasonable efforts to eliminate the effect thereof to the extent possible.
13.9. GOVERNING LAW: This Agreement shall be governed by the laws of the Republic of South Africa.