CUSTOMER TERMS OF USE


NOTICE:PLEASE READ THESE TERMS AND CONDITIONS (“AGREEMENT”) AND OUR PRIVACY POLICY CAREFULLY. THE AGREEMENTS ARE JOINTLY REFERRED TO AS (“THE AGREEMENTS”).


IF YOU ARE UNDER 18 YOU SHOULD EXIT THIS PAYMENT SERVICE IMMEDIATELY.


This Agreement tells you who we are and what service we provide, it sets out the terms and conditions upon which you may use and access our service, what to do if there is a problem andhow to end the Agreement. The Agreements also explain how we may use, share or otherwise process your personal information such as your name and surname, mobile telephone number, email address etc. Our Privacy Policy is located at http://za.intelpromotions.com/terms/privacy. The Agreements are legally binding and set out the terms and conditions upon which you may access and use the Payment Service (as defined below).


We strongly recommend that you print the Agreements out and read them in full or alternatively, a hard copy is available on written request to us using the contact details below, please see the Customer Service section. We also recommend that you check the Agreements regularly.


If you do not wish to be bound by the Agreements, you may not access or use the Payment Service and should exit immediately.


By accessing and/or using the Payment Service, you agree to be bound by the Agreements (each of which may be amended from time to time) and you (“Customer”, “you” or “your”) enter into a legally binding contract with Buongiorno South Africa (Pty) Ltd (trading as ‘Docomo Digital’), a private company with limited liability registered with its registered office address at: 5th Floor Auto Atlantic building, Cnr Heerengracht and Hertzog Boulevard, Cape Town, 8001, South Africa, under company number 1990/04637/07 (the “Company”, “we”, “us” or “our and any similar expression shall include the Company and any of its affiliates).


Our service enables you to purchase your chosen McAfee Software for a flat daily membership fee using your supported mobile device and your mobile network operator (“MNO”) allows us to charge the amount directly to your bill or prepay account, once this charge has been authorized by you (the “Payment Service”).

Please also note that in some jurisdictions there are obligatory provisions in the consumer legislation that may be relevant to services provided under this Agreement.

YOU ACCEPT THAT YOU HAVE BEEN GIVEN AN OPPORTUNITY TO READ AND ACCEPT THIS AGREEMENT BEFORE USING THE PAYMENT SERVICE.


1. INTRODUCTION

1.1 The McAfee Multi Access Security Software (the “McAfee Software”) is owned by Intel Corporation (UK) Ltd (“Intel”). The Software offers you a comprehensive solution to protect multiple devices (up to 5 devices) by providing security from dangerous downloads and protecting your personal information and your family's digital information.

1.2 You can purchase the McAfee Software via our Payment Service for a daily membership fee (please scroll down to see full details in the section titled “Membership Fee” below). Once you have completed the sign up process, you will receive an email from Intel providing instructions on how to download the McAfee Software and containing a link to the McAfee End User License Agreement: https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB.

1.3 You acknowledge that by agreeing to the terms of this Agreement and/or by continuing to use the Payment Service, you are bound by the entirety of this Agreement and the Privacy Policy (which is incorporated in this Agreement and made a part of this Agreement by this reference), as such terms, regulations and policies may be amended from time to time. 

1.4 We reserve the right to make any amendments to the Agreements and any such changes will be highlighted in red for a period of 4 (four) weeks. We encourage you to review the Agreements, which are updated periodically. Your continued use of the Payment Service will be deemed to be your acceptance of any changes to the Agreements. If the modified Agreements are not acceptable to you, your only recourse is to cease using the Payment Service, for further details on cancellation please see the Customer Service section below.


2. YOUR REPRESENTATIONS

2.1 By seeking to register for the Payment Service and using the Payment Service you hereby confirm to us that at all such times you:

a) are resident in the Republic of South Africa (and it is your main residence);

b) are aged 18 years or over;

c) are of sound mind and capable of taking responsibility for your own actions;

d) have the power to enter a legally binding agreement (you are not being legally barred from doing so for any reason) and you are the person whose details are provided upon signing up to the Payment Service;

f)  are acting on your own behalf (as principal) and not on behalf of anyone else;

h) are the authorized owner of the mobile device which you signed up to our Payment Service and have the authority to approve the Membership Fee (as stated in the applicable section below) to your mobile phone bill during the sign up process, as described below.

i)  you are in a jurisdiction in which access and/or use of the Payment Service is not unlawful or contrary to any applicable law or regulation. It is your responsibility to ensure that this is not the case.

k) all information provided in when subscribing to the Payment Service and all personal information provided to us is complete, true and accurate and not misleading and that you will notify us immediately of any change.

 

3.   ACCEPTABLE USE

3.1 You acknowledge and accept that the Payment Service is for personal, non-commercial use only. You may not use the Payment Service for commercial activities or for other purposes and you hereby undertake:

a)  to abide by all applicable laws and regulations when using the Payment Service and to be solely responsible for all things arising from your use of the Payment Service;

b) not to use the Payment Service in any way which might violate (infringe) any rights of any third party or give rise to a legal claim against the Company by any third party;

c) not to damage, interfere with or disrupt access to the Payment Service or do anything that may interrupt or impair its functionality;

d) not to obtain or attempt to obtain unauthorized access, through whatever means, to the Payment Service;

e) not to use the Payment Service on behalf of third parties and not to provide data belonging to third parties in the registration form, except as otherwise specifically provided in this Agreement;

f) not to use, copy or register the Company’s Payment Service name or any of our trademarks;

g) not to commit acts and/or omissions which can bring into disrepute or denigrate the Company’s name and/or the Company’s Payment Service. In particular, you undertake not to seek in any way to alter or modify the functioning of the Payment Service; and

h) not to make available to the public, on pages dedicated to the Payment Service or elsewhere, any language, material, content or other element which is contrary to the public order, law or common decency, directly or indirectly insulting, defamatory, racist, xenophobic, homophobic, revisionist or injurious, incites suicide, violence, prostitution, paedophilia or exploits persons lesser than 18 years of age or offers or proposes online gambling/betting services or other services that are not authorized under current law.

3.2 Instructions on how to use and download the McAfee Software will be emailed to you by Intel and your use of the McAfee Software is subject to the McAfee End User License Agreement: https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB.

3.3       You must not:

(a)        use the Payment Service in any way or take any action that causes, or may cause, damage to the Payment Service or impairment of the performance, availability or accessibility of the Payment Service;

(b)        use the Payment Service in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

(c)       use the Payment Service to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software;

(d)        conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Payment Service without our express written consent;

(e)        access or otherwise interact with the Payment Service using any robot, spider or other automated means;

(f)        violate the directives set out in the documentation sent to you for the Payment Service; or

(g)        use data collected from the Payment Service for any direct marketing activity (including without limitation email marketing, SMS marketing, telemarketing and direct mailing);

(f)        use data collected from the Payment Service to contact individuals, companies or other persons or entities.

3.4 We reserve the right to restrict access to areas of the Payment Service, in whole or in part. You must not circumvent or bypass, or attempt to circumvent or bypass, any access restriction measures on the Payment Service.

3.5 Persons in breach of this Agreement are not entitled to access and/or use the Payment Service and could be committing fraud and may be subject to criminal prosecution.


4. OUR OBLIGATIONS

4.1 We shall try during the term of this Agreement to:

a) supply, install and keep functional the technological interface necessary to correctly manage your requests (activation/identification/deactivation of the Payment Service), sending notifications via SMS, as well as the connection between you and your MNO (mobile network operator) for matters that relate to the billing processed by your MNO.

b) to use sources, systems and technologies of high quality and the market standard to allow you to use the Payment Service according to this Agreement.

4.2   We can help you with all your enquiries relating to the Payment Service and your membership. You may contact us using the details stated in the Customer Service section below.

4.3       Intel will provide support for all customer enquiries relating to the supply and operation of the McAfee Software. For your convenience, we have also specified Intel’s customer care details in the Customer Service section below.

 

5. ACCESS TO THE MCAFEE SOFTWARE

5.1 Before you are able to access or use the McAfee Software, you will be required to pay the Membership Fee (as described below) via our Payment Service.  You can pay the Membership Fee (as described below)  to access the McAfee Software in  the following way: i) click on an advertising banner and follow the instructions noted on the subsequent landing pages; ii) click on the “CALL-TO-ACTION” button; iii) enter your email address and iv) then click “CONTINUE” to receive an email from Intel, which will contain instructions on how to download and use the McAfee Software as well as the McAfee End User License Agreement, which shall govern your use and installation of the McAfee Software: https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB; 

5.2 The Membership Fee (as described below) is always mentioned at the point of purchase i.e. commencement of a membership period or on the date of accessing the Payment Service.

5.3 Transactions made using your mobile number are accepted by us on the understanding that you are the lawful account holder and bill payer of the mobile number used to access and/or use the Payment Service. If your mobile phone is used by anyone other than yourself, we will accept no liability for the consequences or costs incurred from such misuse, or for the loss, theft, and misuse of your information.

5.4 You agree to be solely responsible at all times for all access and/or use of the Payment Service. You must keep all your personal information e.g. mobile number and email address confidential and we will also ensure that it is protected in accordance with our Privacy Policy. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's information or another person's likeness, voice, image or photograph, or providing false details for a parent or guardian, if our membership process requires such information. You are also responsible for ensuring that all persons who access the Payment Service through your internet connection are aware of the Agreements and are in compliance with their terms.

5.5 We reserve the right to disable your access to the Payment Service, at any time, if in our opinion you are in breach or suspected of any breach of this Agreement, any applicable law, regulation, code or request of a MNO and/or regulators or should we deem it in the best interests of the Company and/or other customers to do so

5.6 We reserve the right to ask for proof of age documentation and evidence to verify your identity at any time (including any third party, which may keep a record of such information). We reserve the right to conduct checks against any of the details provided to us and to pursue this information through any channels and methods available to us. Failure to provide substantiated proof of age or other requested information will result in the suspension or termination of your access rights to the Payment Service

5.7 It is your sole responsibility to ensure that at all times you comply with all laws and regulations with respect to the Payment Service in any jurisdiction where you are located or are a resident and that you have a complete and unrestricted legal right to register, access and/or use the Payment Service.

5.8 If any of your personal information change, please inform us immediately by contacting us using the contact information provided in the Customer Service section below.


6. MEMBERSHIP FEE

6.1 Access to the McAfee Software via our Payment Service is charged at a flat fee of R7 per day as a mobile subscription service (exact price depending on the existing campaign at time of joining and mobile network operator) (“Membership Fee”).

6.2 When you make the decision to purchase the McAfee Software via our Payment Service, you enter into a legal contract with us and agree that you will pay the Membership Fee by charging your purchase of the McAfee Software to your monthly account or prepaid account provided by your mobile network operator (“MNO”).

6.3 The Membership Fee shall become due at the end of the specific membership period while you are subscribed to the Payment Service irrespective of whether or not the McAfee Software is actually accessed, used or installed during any particular membership period.

6.4 Once this charge has been authorized by you, your MNO agrees for us to charge the amount directly to your bill or prepay account. You must pay your MNO (for monthly accounts) the amount charged. You are therefore wholly responsible for checking that you are happy with the seller (us), price and the Payment Service before making a purchase commitment.

6.5 MNO charges may also apply and the Membership Fee is inclusive of VAT (where applicable).

6.6 The Payment Service is offered to you on a membership basis, which will renew automatically after the end of the specific membership period, unless and until you decide to opt out or unsubscribe.

6.7 You can use the Payment Service until you cancel it, at any time, by clicking on to the unsubscribe option and following the instructions. For further details on cancellation please scroll down to the end of this Agreement and see the Customer Service section.

6.8     If you dispute any payment made, you must contact us immediately and provide full details of your claim, using the Customer Service details stated below.

6.9     If the payment for each day you are subscribed fails we will attempt to take payment for a further 30 (thirty) to 90 (ninety) days (depending on which Network Operator your account is with) before automatically cancelling your membership and privileges.

6.10 If you owe any amount under or relating to this Agreement, we may suspend or withdraw the provision of Payment Service to you.

 

7. PROMOTIONAL AND MARKETING OFFERS FROM US

7.1 You agree that the information supplied by you to us may be used by us or our affiliates for the following purposes which shall include but are not limited to: sending you SMS messages, sending you promotional materials, monitoring the use of the Payment Service, marketing purposes and from time to time evaluating if we can improve our services for our customers, unless you SMS “NO” at any time to 36820 to stop receiving promotional and marketing offers from us.

 

8. REFUNDS

8.1 If you reside in the Republic of South Africa and have purchased one of our membership services with a recurring charge, section 44 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) entitles a customer to cancel without reason and without penalty any sale concluded on a website within 7 (seven) days after date of the conclusion of an agreement for services (“Cooling Off Period”) and to obtain a full purchase price refund within 30 (thirty) days of date of cancellation thereafter, but provided that you notify us of your cancellation in writing.

8.2 Where the Cooling Off Period does not apply, you may cancel the Payment Service, at any time, and all future charges by following the instructions given in the text SMS message sent to you after your purchase, but if you do, we are not obliged to refund any part of the Membership Fee, unless we have breached a material term set out in this Agreement or are otherwise required by law. In all other circumstances, a refund will be at our discretion. No refunds will apply for early termination of the Payment Service following a payment period.

8.3 Nothing in this Agreement affects or limits your legal rights as a consumer under Consumer Protection Act 2008 (as well as any amendment, reenactment of this act, from time to time) (“CPA”) or any other applicable law.

8.4 For further details on cancellation (whether or not within the Cooling Off Period) or any enquiries, please contact us directly using the details stated in the Customer Service section below. The Customer Service section also contains details of the Department of Trade and Industry (the “DTI”) as well as the National Consumer Tribunal (“NCT”), who can provide further advice about your rights.


9. USE ON BEHALF OF AN ORGANISATION

9.1       If you use and/or access the Payment Service or expressly agree to this Agreement in the course of a business or other organisational project, then by so doing you bind both:
(a) yourself; and (b) the person, company or other legal entity that operates that business or organisational project, to this Agreement, and in these circumstances references to "you" in this Agreement are to both the customer and the relevant person, company or legal entity.


10. INTELLECTUAL PROPERTY RIGHTS

Subject to the express provisions of this Agreement:

10.1 Our intellectual property rights: including, but not limited to industrial secrets, inventions (patents), Company’s trademarks, domain and trade names, logos, industrial designs and models and designations of origin, copyright) in and to the Payment Service as well as its features (“Our IPRs”) are owned by or licensed to us. Our IPRs are protected under the laws of the Republic of South Africa, International treaties and all other applicable copyright and intellectual property laws. No licence is granted to you in respect of any such rights, except to the extent required for your personal use of the Payment Service in accordance with this Agreement. Any unauthorised distribution is strictly prohibited and legal action could be taken against any such person who makes unauthorized distribution of any of any content or materials belonging to us, including Our IPRs.

10.2 Our trade marks: Our product or service names, slogans and associated logos are and shall remain the exclusive property and trade marks of the Company. You shall not be entitled to reproduce such trade marks without our prior written consent on each occasion.

10.3 Third Party trade marks: You do not have the right to use Intel or mobile network operator’s trade marks and logos. Each unauthorized use or infringement of trade marks, logos or distinctive signs of Intel or mobile network operator can be prosecuted according to the applicable law by the respective parties.

10.4 Intel’s intellectual property rights: All intellectual property rights (including, but not limited to industrial secrets, inventions (patents), Intel’s trademarks, domain and trade names, logos, industrial designs and models and designations of origin, copyright) in and to the McAfee Software are and shall remain the exclusive property of Intel Corporation (UK) Ltd (and its licensors, as applicable).


11. VIRUSES, HACKING AND OTHER OFFENCES

11.1 You must not attempt or encourage the misuse of our Payment Service by introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful.  You must not attempt to gain unauthorized access to the Payment Service.  You must not attack the Payment Service via a denial-of-service attack (“DoS”) or distributed denial-of-service attack (“DDoS”).

11.2 By breaching Clause 11.1 above, you would commit a criminal offence under South African Law. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such breach, your right to use the Payment Service will cease immediately without notice to you and without us incurring any liability whatsoever.

11.3 We will not be liable for any loss or damage or for any other liability caused by the DoS, DDoS, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to use of the Payment Service by you.

11.4 Report abuse. If you learn of any unlawful material or activity on the Payment Service or any material or activity that violates the terms and conditions of this Agreement, please let us know using the details below in the Customer Service section.


12. SECURITY POLICY

13.1 We will not provide your personal information with third parties, however, we may provide on your details to relevant authorities or regulators if we and/or they wish to investigate or assist in the investigation of any suspected or alleged fraud or abuse of the Payment Service or if we are required by law to do so, for example under anti money laundering or data protection legislation.

12.2 All information received by us from your use of the Payment Service shall be used in accordance with our Privacy Policy, which we encourage you to review carefully as it details how we may process your personal information (for your convenience, you can also open the following link http://za.intelpromotions.com/terms/privacy. By using our Payment Service, you consent to such processing and you warrant that all information provided by you is accurate, up to date and complete. It is your responsibility to update and maintain changes to that information and the Company is entitled to rely on any information you provide to us.

12.3 If we have reason to believe that there has been or is likely to be a breach of security or any other misuse of the Payment Service, we may suspend and/or terminate your access rights to the Payment Service.

12.4 We are not obliged to monitor, detect or report any unauthorised use of our Payment Service and you shall be solely responsible for all use of the Payment Service accessed by you or anyone else using your details, for preventing unauthorized use of your personal information and/or your mobile device and you are solely liable for all user charges that are incurred as a result of any such unauthorised use.

12.5 If you believe there has been any breach of security such as the disclosure, theft or unauthorised use of your personal information or mobile device, you must notify us immediately by e-mailing us at: info.za@intelpromotions.com.


13.     UPDATES OF THE PAYMENT SERVICE 

We may change the format of the Payment Service at our sole discretion in whole or in part in order to enhance the Payment Service.

 

14. CUSTOMER SERVICE

14.1 Cancellation:

You are free to cancel your subscription to the Payment Service and your access to the McAfee Software at any time by following these instructions:

SMS “STOP” to 36820 to unsubscribe at any time.

Your access to the McAfee Software can also be terminated anytime by clicking on to the unsubscribe option and following the instructions.


14.2 Payment Service enquiries:

If you have any questions concerning this Agreement, or should you wish to make a complaint about the Payment Service or for other matters related to the Payment Service, please contact us by telephone, email or write to us using the following details:

Company’s name: Buongiorno South Africa (Pty) Ltd (trading as “Docomo Digital”);

Address: Buongiorno South Africa (Pty) Ltd, 5th Floor Auto Atlantic building, Cnr Heerengracht and Hertzog Boulevard, Cape Town 8001;

Helpline: 021 415 2134 (local call charge rate);

Email:info.za@intelpromotions.com.


14.3 McAfee Software enquiries:

If you have any problems with installing and/or using the McAfee Software or your mobile device compatibility with the McAfee Software, please contact McAfee Ireland Limited directly as they are owner of the McAfee Software, using the following details:

McAfee Ireland Limited

Address: Building 2000 City Gate, Mahon, Cork, Ireland

Helpline: (local call charge rate) 011 707 5566

Online Support:  http://service.mcafee.com 

Compatibility Check: www.mcafee.com/SystemRequirements


14.4 The Company is a member of WASPA and is bound by the WASPA Code of Conduct. Customers have the right to approach WASPA to lodge a complaint in accordance with the WASPA complaints procedure. The Company may be required to share information relating to the Payment Service or a customer with WASPA for the purpose of resolving a complaint. WASPA website: www.waspa.org.za.


14.5 The Consumer Protection Act gave rise to the establishment of the National Consumer Commission, a body assigned to investigate consumer complaints, as well as the National Consumer Tribunal, which is responsible for the adjudication of violations and transgressions of the Consumer Protection Act.

You can contact the DTI or NCT for further advice about your rights:

Department of Trade and Industry (DTI) Customer Contact Centre: 0861 843 384

the DTI Office of Consumer Protection: (012) 394 1436 / 1558 /1076

DTI E-mail: contactus@thedti.gov.za This e-mail address is protected from spambots. You need JavaScript enabled to view it.

DTI Website: www.thedti.gov.za

National Consumer Tribunal (NCT): (012) 663 5615

NCT E-mail: Registry@thenct.org.za

NCT Website: www.thenct.org.za


15. OUR LIABILITY 

15.1 Your use of the McAfee Software is entirely at your own risk. To the fullest extent permitted by applicable law, we shall not be liable if the McAfee Software which Intel Corporation (UK) Ltd supplies or makes available to you is not fully compliant with laws or regulations or which is in any way defective or not usable by you whether in whole or part. Notwithstanding the foregoing this disclaimer does not nor intends to deny your consumer rights whether in whole or part.

15.2 We are not liable for any direct or indirect damage arising or relating to the provision of the Payment Service and we cannot be held liable for any use of the Payment Service by you which is not compliant with any law or regulation or any provision of this Agreement. We are also not liable for any failure to perform by any third party to this Agreement.

15.3 The provisions of this Clause 15 set out our entire liability to you (including any liability for acts and/or omissions of our parent company, subsidiaries, associated companies, employees, agents and sub-contractors) regarding:

a) any breach of this Agreement by us, our directors, employees, agents or subcontractors; and

b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Payment Service.

15.4 Subject to Clause 15.5 below:

 a) Except in the case of an act or omission carried out with intent to cause damage or in a reckless manner, with knowledge that damage would likely result, our liability to you in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall not exceed the greater of R1,000 (One Thousand Rand) or the monthly membership charge paid by you in the preceding calendar month to your claim. You agree that the exclusions of liability above and anywhere else in this Agreement are reasonable.

 b) your use of any Payment Service and/or the McAfee Software is entirely at your own risk and in no event shall we shall not be liable to you for any direct, indirect or consequential loss (including without limitation, loss of profit, data, loss of goodwill, loss of contract or other information) or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Payment Service or  the McAfee Software or any offers whether or not we have been previously made aware of it.

15.5 Nothing in this Agreement excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation or any matter which it would be illegal for us to limit or exclude or attempt to limit or exclude our liability for.  

 

15.6 We are not liable for anything out of our control including but not limited to any loss or damage that you may suffer or incur because of any act of God, power cut; trade or labour dispute, failure or any omission of any government or authority; delay, interruption, obstruction, or failure of telecommunication services; or any other cessation, delay or failure caused by a third party or loss or corruption of data. In such an event, we reserve the right to cancel or suspend the Payment Service indefinitely and without notice or incurring any liability whatsoever.

15.7 All representations, warranties and terms (express or implied) not set out in this Agreement are excluded to the fullest extent permitted by law and we shall have no liability to you in respect of the same.

15.8   We draw to your attention that you may be entitled to certain consumer rights in terms of the ECTA and/or the CPA and other applicable laws. No provision of this Agreement is to be interpreted or construed as excluding, limiting or waiving any rights which you may have as a consumer, or avoiding any obligation which we may have, in terms of the ECTA, the CPA or any other applicable laws, whether in South Africa or any other country having jurisdiction (unless such laws permit the parties to agree otherwise).

 

16.   NO WARRANTY

16.1 We make no representation or warranty about information or any other item(s) that may be accessed either directly or indirectly via the Payment Service (save to extent expressly provided in this Agreement) and we reserve the right to make changes and/or corrections at any time to such information, without notice. We accept no liability for any inaccuracies or omissions (other than a fraudulent misrepresentation) in or from such information and any decisions based on such information are the sole responsibility of the customer.

16.2 You acknowledge that we have not represented or warranted that the Payment Service will be uninterrupted, error free or without delay or without compromise of the security systems related to the services or that all errors will be corrected. To the maximum extent permitted by applicable law and subject to Clause 16.5, we exclude all representations and warranties relating to the subject matter of this Agreement and the Payment Service.

16.3 We do not supply the McAfee Software and we cannot under any circumstances be held liable in the event that the McAfee Software purchased by you is not compliant with applicable law or codes of practices and no warranty of any nature, express, implied or statutory, as to the performance of the McAfee Software (including without limitation, any software related thereto)is made by Company to you under this Agreement, including, but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement and the Company disclaims any such express or implied warranties.

16.4     We reserve the right to discontinue access or alter part or all of the Payment Service at any time in our sole discretion without notice or explanation. Save to the extent expressly provided otherwise in this Agreement you will not be entitled to any compensation or other payment upon the discontinuance or alteration of the Payment Service.

16.5 Notwithstanding the foregoing, the disclaimers stated in this Clause 16 do not nor intend to deny you any of your consumer rights whether in whole or part.

 

17.       OUR COMPENSATION FOR LOSS OR DAMAGE

17.1 You hereby agree to hold Company harmless, indemnify us and undertake to keep us indemnified, against any and all losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) incurred or suffered by us and arising directly or indirectly out of:

(a)        any breach, for any reason, by you of the warranties and obligations you have undertaken in this Agreement; and/or

(b)        your use of the McAfee Software.

 

18.   YOUR BREACH OF THIS AGREEMENT

18.1     Without prejudice to our other rights under this Agreement, if you breach these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may:

(a) send you one or more formal warnings;
(b) temporarily suspend your access to the Payment Service;
(c) permanently prohibit you from accessing the
Payment Service;
(d) contact any or all your MNO (mobile network operator) and request that they block your access to the Payment Service;
(e) commence legal action against you, whether for breach of Agreement or otherwise; and/or
(f) request that Intel suspend or delete your access on the McAfee Software.

18.2     Where we suspend or prohibit or block your access to the Payment Service or a part of the Payment Service, you must not take any action to circumvent such suspension or prohibition or blocking (including without limitation creating and/or using a different account).

 

19.       OTHER IMPORTANT TERMS

19.1 This Agreement (which includes our Privacy Policy) constitutes the whole agreement between you and us to the fullest extent permitted by law. This Agreement relates to your access to and use of the Payment Service. For the avoidance of doubt, if you use or install the McAfee Software, you are subject to the McAfee End User License Agreement: https://www.mcafee.com/us/resources/legal/end-user-license-agreements-en-us.pdf.

19.2 We are an independent contractor. Nothing in this Agreement shall be deemed to create a partnership, agency or joint venture between you and the Company.

19.3 We may transfer this Agreement to someone else. We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights as a consumer under the Agreement. If you are unhappy with the transfer, you may contact us to end the Agreement.

19.4     You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.

19.5     Nobody else has any rights under this Agreement. The Agreement is between you and us. No other person shall have any rights to enforce any of its terms (except for Intel as specifically provided herein). The exercise of your rights and our rights, respectively, under this Agreement is not subject to the consent of any other person. 

19.6     If a court finds part of this Agreement illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

19.7     Even if we delay in enforcing this Agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Payment Service, we can still require you to make the payment at a later date.

19.8     Which laws apply to this Agreement and where you may bring legal proceedings: This Agreement, including any dispute or claim arising out of or in connection to this Agreement, shall be governed by the laws of the Republic of South Africa. Legal proceedings in respect of the Payment Service can be brought in the South African courts. However, we retain the right to bring legal proceedings in any jurisdiction where we believe that a violation of our intellectual property rights or any breach of this Agreement is taking place or originating. You are solely responsible for compliance with any applicable laws and regulations of the jurisdiction from which you are accessing or using the Payment Service.

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https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB.

1.3 You acknowledge that by agreeing to the terms of this Agreement and/or by continuing to use the Payment Service, you are bound by the entirety of this Agreement and the Privacy Policy (which is incorporated in this Agreement and made a part of this Agreement by this reference), as such terms, regulations and policies may be amended from time to time. 

1.4 We reserve the right to make any amendments to the Agreements and any such changes will be highlighted in red for a period of 4 (four) weeks. We encourage you to review the Agreements, which are updated periodically. Your continued use of the Payment Service will be deemed to be your acceptance of any changes to the Agreements. If the modified Agreements are not acceptable to you, your only recourse is to cease using the Payment Service, for further details on cancellation please see the Customer Service section below.

 

2. YOUR REPRESENTATIONS

2.1 By seeking to register for the Payment Service and using the Payment Service you hereby confirm to us that at all such times you:

a) are resident in the Republic of South Africa (and it is your main residence);

b) are aged 18 years or over;

c) are of sound mind and capable of taking responsibility for your own actions;

d) have the power to enter a legally binding agreement (you are not being legally barred from doing so for any reason) and you are the person whose details are provided upon signing up to the Payment Service;

f)  are acting on your own behalf (as principal) and not on behalf of anyone else;

h) are the authorized owner of the mobile device which you signed up to our Payment Service and have the authority to approve the Membership Fee (as stated in the applicable section below) to your mobile phone bill during the sign up process, as described below.

i)  you are in a jurisdiction in which access and/or use of the Payment Service is not unlawful or contrary to any applicable law or regulation. It is your responsibility to ensure that this is not the case.

k) all information provided in when subscribing to the Payment Service and all personal information provided to us is complete, true and accurate and not misleading and that you will notify us immediately of any change.

 

3.   ACCEPTABLE USE

3.1 You acknowledge and accept that the Payment Service is for personal, non-commercial use only. You may not use the Payment Service for commercial activities or for other purposes and you hereby undertake:

a)  to abide by all applicable laws and regulations when using the Payment Service and to be solely responsible for all things arising from your use of the Payment Service;

b) not to use the Payment Service in any way which might violate (infringe) any rights of any third party or give rise to a legal claim against the Company by any third party;

c) not to damage, interfere with or disrupt access to the Payment Service or do anything that may interrupt or impair its functionality;

d) not to obtain or attempt to obtain unauthorized access, through whatever means, to the Payment Service;

e) not to use the Payment Service on behalf of third parties and not to provide data belonging to third parties in the registration form, except as otherwise specifically provided in this Agreement;

f) not to use, copy or register the Company’s Payment Service name or any of our trademarks;

g) not to commit acts and/or omissions which can bring into disrepute or denigrate the Company’s name and/or the Company’s Payment Service. In particular, you undertake not to seek in any way to alter or modify the functioning of the Payment Service; and

h) not to make available to the public, on pages dedicated to the Payment Service or elsewhere, any language, material, content or other element which is contrary to the public order, law or common decency, directly or indirectly insulting, defamatory, racist, xenophobic, homophobic, revisionist or injurious, incites suicide, violence, prostitution, paedophilia or exploits persons lesser than 18 years of age or offers or proposes online gambling/betting services or other services that are not authorized under current law.

3.2 Instructions on how to use and download the McAfee Software will be emailed to you by Intel and your use of the McAfee Software is subject to the McAfee End User License Agreement: https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB.

3.3       You must not:

(a)        use the Payment Service in any way or take any action that causes, or may cause, damage to the Payment Service or impairment of the performance, availability or accessibility of the Payment Service;

(b)        use the Payment Service in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

(c)       use the Payment Service to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software;

(d)        conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Payment Service without our express written consent;

(e)        access or otherwise interact with the Payment Service using any robot, spider or other automated means;

(f)        violate the directives set out in the documentation sent to you for the Payment Service; or

(g)        use data collected from the Payment Service for any direct marketing activity (including without limitation email marketing, SMS marketing, telemarketing and direct mailing);

(f)        use data collected from the Payment Service to contact individuals, companies or other persons or entities.

3.4 We reserve the right to restrict access to areas of the Payment Service, in whole or in part. You must not circumvent or bypass, or attempt to circumvent or bypass, any access restriction measures on the Payment Service.

3.5 Persons in breach of this Agreement are not entitled to access and/or use the Payment Service and could be committing fraud and may be subject to criminal prosecution.

 

4. OUR OBLIGATIONS

4.1 We shall try during the term of this Agreement to:

a) supply, install and keep functional the technological interface necessary to correctly manage your requests (activation/identification/deactivation of the Payment Service), sending notifications via SMS, as well as the connection between you and your MNO (mobile network operator) for matters that relate to the billing processed by your MNO.

b) to use sources, systems and technologies of high quality and the market standard to allow you to use the Payment Service according to this Agreement.

4.2   We can help you with all your enquiries relating to the Payment Service and your membership. You may contact us using the details stated in the Customer Service section below.

4.3       Intel will provide support for all customer enquiries relating to the supply and operation of the McAfee Software. For your convenience, we have also specified Intel’s customer care details in the Customer Service section below.

 

5. ACCESS TO THE MCAFEE SOFTWARE

5.1 Before you are able to access or use the McAfee Software, you will be required to pay the Membership Fee (as described below) via our Payment Service.  You can pay the Membership Fee (as described below)  to access the McAfee Software in  the following way: i) click on an advertising banner and follow the instructions noted on the subsequent landing pages; ii) click on the “CALL-TO-ACTION” button; iii) enter your email address and iv) then click “CONTINUE” to receive an email from Intel, which will contain instructions on how to download and use the McAfee Software as well as the McAfee End User License Agreement, which shall govern your use and installation of the McAfee Software: https://home.mcafee.com/SupportPages/PrintEula.aspx?culture=EN-GB; 

5.2 The Membership Fee (as described below) is always mentioned at the point of purchase i.e. commencement of a membership period or on the date of accessing the Payment Service.

5.3 Transactions made using your mobile number are accepted by us on the understanding that you are the lawful account holder and bill payer of the mobile number used to access and/or use the Payment Service. If your mobile phone is used by anyone other than yourself, we will accept no liability for the consequences or costs incurred from such misuse, or for the loss, theft, and misuse of your information.

5.4 You agree to be solely responsible at all times for all access and/or use of the Payment Service. You must keep all your personal information e.g. mobile number and email address confidential and we will also ensure that it is protected in accordance with our Privacy Policy. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's information or another person's likeness, voice, image or photograph, or providing false details for a parent or guardian, if our membership process requires such information. You are also responsible for ensuring that all persons who access the Payment Service through your internet connection are aware of the Agreements and are in compliance with their terms.

5.5 We reserve the right to disable your access to the Payment Service, at any time, if in our opinion you are in breach or suspected of any breach of this Agreement, any applicable law, regulation, code or request of a MNO and/or regulators or should we deem it in the best interests of the Company and/or other customers to do so

5.6 We reserve the right to ask for proof of age documentation and evidence to verify your identity at any time (including any third party, which may keep a record of such information). We reserve the right to conduct checks against any of the details provided to us and to pursue this information through any channels and methods available to us. Failure to provide substantiated proof of age or other requested information will result in the suspension or termination of your access rights to the Payment Service

5.7 It is your sole responsibility to ensure that at all times you comply with all laws and regulations with respect to the Payment Service in any jurisdiction where you are located or are a resident and that you have a complete and unrestricted legal right to register, access and/or use the Payment Service.

5.8 If any of your personal information change, please inform us immediately by contacting us using the contact information provided in the Customer Service section below.

 

6. MEMBERSHIP FEE

6.1 Access to the McAfee Software via our Payment Service is charged at a flat fee of R7 per day as a mobile subscription service (exact price depending on the existing campaign at time of joining and mobile network operator) (“Membership Fee”).

6.2 When you make the decision to purchase the McAfee Software via our Payment Service, you enter into a legal contract with us and agree that you will pay the Membership Fee by charging your purchase of the McAfee Software to your monthly account or prepaid account provided by your mobile network operator (“MNO”).

6.3 The Membership Fee shall become due at the end of the specific membership period while you are subscribed to the Payment Service irrespective of whether or not the McAfee Software is actually accessed, used or installed during any particular membership period.

6.4 Once this charge has been authorized by you, your MNO agrees for us to charge the amount directly to your bill or prepay account. You must pay your MNO (for monthly accounts) the amount charged. You are therefore wholly responsible for checking that you are happy with the seller (us), price and the Payment Service before making a purchase commitment.

6.5 MNO charges may also apply and the Membership Fee is inclusive of VAT (where applicable).

6.6 The Payment Service is offered to you on a membership basis, which will renew automatically after the end of the specific membership period, unless and until you decide to opt out or unsubscribe.

6.7 You can use the Payment Service until you cancel it, at any time, by clicking on to the unsubscribe option and following the instructions. For further details on cancellation please scroll down to the end of this Agreement and see the Customer Service section.

6.8     If you dispute any payment made, you must contact us immediately and provide full details of your claim, using the Customer Service details stated below.

6.9     If the payment for each day you are subscribed fails we will attempt to take payment for a further 30 (thirty) to 90 (ninety) days (depending on which Network Operator your account is with) before automatically cancelling your membership and privileges.

6.10 If you owe any amount under or relating to this Agreement, we may suspend or withdraw the provision of Payment Service to you.

 

7. PROMOTIONAL AND MARKETING OFFERS FROM US

7.1 You agree that the information supplied by you to us may be used by us or our affiliates for the following purposes which shall include but are not limited to: sending you SMS messages, sending you promotional materials, monitoring the use of the Payment Service, marketing purposes and from time to time evaluating if we can improve our services for our customers, unless you SMS “NO” at any time to 36820 to stop receiving promotional and marketing offers from us.

 

8. REFUNDS

8.1 If you reside in the Republic of South Africa and have purchased one of our membership services with a recurring charge, section 44 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) entitles a customer to cancel without reason and without penalty any sale concluded on a website within 7 (seven) days after date of the conclusion of an agreement for services (“Cooling Off Period”) and to obtain a full purchase price refund within 30 (thirty) days of date of cancellation thereafter, but provided that you notify us of your cancellation in writing.

8.2 Where the Cooling Off Period does not apply, you may cancel the Payment Service, at any time, and all future charges by following the instructions given in the text SMS message sent to you after your purchase, but if you do, we are not obliged to refund any part of the Membership Fee, unless we have breached a material term set out in this Agreement or are otherwise required by law. In all other circumstances, a refund will be at our discretion. No refunds will apply for early termination of the Payment Service following a payment period.

8.3 Nothing in this Agreement affects or limits your legal rights as a consumer under Consumer Protection Act 2008 (as well as any amendment, reenactment of this act, from time to time) (“CPA”) or any other applicable law.

8.4 For further details on cancellation (whether or not within the Cooling Off Period) or any enquiries, please contact us directly using the details stated in the Customer Service section below. The Customer Service section also contains details of the Department of Trade and Industry (the “DTI”) as well as the National Consumer Tribunal (“NCT”), who can provide further advice about your rights.

 

9. USE ON BEHALF OF AN ORGANISATION

9.1       If you use and/or access the Payment Service or expressly agree to this Agreement in the course of a business or other organisational project, then by so doing you bind both:
(a) yourself; and (b) the person, company or other legal entity that operates that business or organisational project, to this Agreement, and in these circumstances references to "you" in this Agreement are to both the customer and the relevant person, company or legal entity.

 

10. INTELLECTUAL PROPERTY RIGHTS

Subject to the express provisions of this Agreement:

10.1 Our intellectual property rights: including, but not limited to industrial secrets, inventions (patents), Company’s trademarks, domain and trade names, logos, industrial designs and models and designations of origin, copyright) in and to the Payment Service as well as its features (“Our IPRs”) are owned by or licensed to us. Our IPRs are protected under the laws of the Republic of South Africa, International treaties and all other applicable copyright and intellectual property laws. No licence is granted to you in respect of any such rights, except to the extent required for your personal use of the Payment Service in accordance with this Agreement. Any unauthorised distribution is strictly prohibited and legal action could be taken against any such person who makes unauthorized distribution of any of any content or materials belonging to us, including Our IPRs.

10.2 Our trade marks: Our product or service names, slogans and associated logos are and shall remain the exclusive property and trade marks of the Company. You shall not be entitled to reproduce such trade marks without our prior written consent on each occasion.

10.3 Third Party trade marks: You do not have the right to use Intel or mobile network operator’s trade marks and logos. Each unauthorized use or infringement of trade marks, logos or distinctive signs of Intel or mobile network operator can be prosecuted according to the applicable law by the respective parties.

10.4 Intel’s intellectual property rights: All intellectual property rights (including, but not limited to industrial secrets, inventions (patents), Intel’s trademarks, domain and trade names, logos, industrial designs and models and designations of origin, copyright) in and to the McAfee Software are and shall remain the exclusive property of Intel Corporation (UK) Ltd (and its licensors, as applicable).

 

11. VIRUSES, HACKING AND OTHER OFFENCES

11.1 You must not attempt or encourage the misuse of our Payment Service by introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful.  You must not attempt to gain unauthorized access to the Payment Service.  You must not attack the Payment Service via a denial-of-service attack (“DoS”) or distributed denial-of-service attack (“DDoS”).

11.2 By breaching Clause 11.1 above, you would commit a criminal offence under South African Law. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such breach, your right to use the Payment Service will cease immediately without notice to you and without us incurring any liability whatsoever.

11.3 We will not be liable for any loss or damage or for any other liability caused by the DoS, DDoS, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to use of the Payment Service by you.

11.4 Report abuse. If you learn of any unlawful material or activity on the Payment Service or any material or activity that violates the terms and conditions of this Agreement, please let us know using the details below in the Customer Service section.

 

12. SECURITY POLICY

13.1 We will not provide your personal information with third parties, however, we may provide on your details to relevant authorities or regulators if we and/or they wish to investigate or assist in the investigation of any suspected or alleged fraud or abuse of the Payment Service or if we are required by law to do so, for example under anti money laundering or data protection legislation.

12.2 All information received by us from your use of the Payment Service shall be used in accordance with our Privacy Policy, which we encourage you to review carefully as it details how we may process your personal information (for your convenience, you can also open the following link http://za.intelpromotions.com/terms/privacy. By using our Payment Service, you consent to such processing and you warrant that all information provided by you is accurate, up to date and complete. It is your responsibility to update and maintain changes to that information and the Company is entitled to rely on any information you provide to us.

12.3 If we have reason to believe that there has been or is likely to be a breach of security or any other misuse of the Payment Service, we may suspend and/or terminate your access rights to the Payment Service.

12.4 We are not obliged to monitor, detect or report any unauthorised use of our Payment Service and you shall be solely responsible for all use of the Payment Service accessed by you or anyone else using your details, for preventing unauthorized use of your personal information and/or your mobile device and you are solely liable for all user charges that are incurred as a result of any such unauthorised use.

12.5 If you believe there has been any breach of security such as the disclosure, theft or unauthorised use of your personal information or mobile device, you must notify us immediately by e-mailing us at: info.za@intelpromotions.com.

 

13.     UPDATES OF THE PAYMENT SERVICE 

We may change the format of the Payment Service at our sole discretion in whole or in part in order to enhance the Payment Service.

 

14. CUSTOMER SERVICE

14.1 Cancellation:

You are free to cancel your subscription to the Payment Service and your access to the McAfee Software at any time by following these instructions:

SMS “STOP” to 36820 to unsubscribe at any time.

Your access to the McAfee Software can also be terminated anytime by clicking on to the unsubscribe option and following the instructions.

 

14.2 Payment Service enquiries:

If you have any questions concerning this Agreement, or should you wish to make a complaint about the Payment Service or for other matters related to the Payment Service, please contact us by telephone, email or write to us using the following details:

Company’s name: Buongiorno South Africa (Pty) Ltd (trading as “Docomo Digital”);

Address: Buongiorno South Africa (Pty) Ltd, 5th Floor Auto Atlantic building, Cnr Heerengracht and Hertzog Boulevard, Cape Town 8001;

Helpline: 021 415 2134 (local call charge rate);

Email:info.za@intelpromotions.com.

 

14.3 McAfee Software enquiries:

If you have any problems with installing and/or using the McAfee Software or your mobile device compatibility with the McAfee Software, please contact McAfee Ireland Limited directly as they are owner of the McAfee Software, using the following details:

McAfee Ireland Limited

Address: Building 2000 City Gate, Mahon, Cork, Ireland

Helpline: (local call charge rate) 011 707 5566

Online Support:  http://service.mcafee.com 

Compatibility Check: www.mcafee.com/SystemRequirements

 

14.4 The Company is a member of WASPA and is bound by the WASPA Code of Conduct. Customers have the right to approach WASPA to lodge a complaint in accordance with the WASPA complaints procedure. The Company may be required to share information relating to the Payment Service or a customer with WASPA for the purpose of resolving a complaint. WASPA website: www.waspa.org.za.

 

14.5 The Consumer Protection Act gave rise to the establishment of the National Consumer Commission, a body assigned to investigate consumer complaints, as well as the National Consumer Tribunal, which is responsible for the adjudication of violations and transgressions of the Consumer Protection Act.

You can contact the DTI or NCT for further advice about your rights:

Department of Trade and Industry (DTI) Customer Contact Centre: 0861 843 384

the DTI Office of Consumer Protection: (012) 394 1436 / 1558 /1076

DTI E-mail: contactus@thedti.gov.za This e-mail address is protected from spambots. You need JavaScript enabled to view it.

DTI Website: www.thedti.gov.za

National Consumer Tribunal (NCT): (012) 663 5615

NCT E-mail: Registry@thenct.org.za

NCT Website: www.thenct.org.za

 

15. OUR LIABILITY 

15.1 Your use of the McAfee Software is entirely at your own risk. To the fullest extent permitted by applicable law, we shall not be liable if the McAfee Software which Intel Corporation (UK) Ltd supplies or makes available to you is not fully compliant with laws or regulations or which is in any way defective or not usable by you whether in whole or part. Notwithstanding the foregoing this disclaimer does not nor intends to deny your consumer rights whether in whole or part.

15.2 We are not liable for any direct or indirect damage arising or relating to the provision of the Payment Service and we cannot be held liable for any use of the Payment Service by you which is not compliant with any law or regulation or any provision of this Agreement. We are also not liable for any failure to perform by any third party to this Agreement.

15.3 The provisions of this Clause 15 set out our entire liability to you (including any liability for acts and/or omissions of our parent company, subsidiaries, associated companies, employees, agents and sub-contractors) regarding:

a) any breach of this Agreement by us, our directors, employees, agents or subcontractors; and

b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Payment Service.

15.4 Subject to Clause 15.5 below:

 a) Except in the case of an act or omission carried out with intent to cause damage or in a reckless manner, with knowledge that damage would likely result, our liability to you in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall not exceed the greater of R1,000 (One Thousand Rand) or the monthly membership charge paid by you in the preceding calendar month to your claim. You agree that the exclusions of liability above and anywhere else in this Agreement are reasonable.

 b) your use of any Payment Service and/or the McAfee Software is entirely at your own risk and in no event shall we shall not be liable to you for any direct, indirect or consequential loss (including without limitation, loss of profit, data, loss of goodwill, loss of contract or other information) or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Payment Service or  the McAfee Software or any offers whether or not we have been previously made aware of it.

15.5 Nothing in this Agreement excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation or any matter which it would be illegal for us to limit or exclude or attempt to limit or exclude our liability for.  

 

15.6 We are not liable for anything out of our control including but not limited to any loss or damage that you may suffer or incur because of any act of God, power cut; trade or labour dispute, failure or any omission of any government or authority; delay, interruption, obstruction, or failure of telecommunication services; or any other cessation, delay or failure caused by a third party or loss or corruption of data. In such an event, we reserve the right to cancel or suspend the Payment Service indefinitely and without notice or incurring any liability whatsoever.

15.7 All representations, warranties and terms (express or implied) not set out in this Agreement are excluded to the fullest extent permitted by law and we shall have no liability to you in respect of the same.

15.8   We draw to your attention that you may be entitled to certain consumer rights in terms of the ECTA and/or the CPA and other applicable laws. No provision of this Agreement is to be interpreted or construed as excluding, limiting or waiving any rights which you may have as a consumer, or avoiding any obligation which we may have, in terms of the ECTA, the CPA or any other applicable laws, whether in South Africa or any other country having jurisdiction (unless such laws permit the parties to agree otherwise).

 

16.   NO WARRANTY

16.1 We make no representation or warranty about information or any other item(s) that may be accessed either directly or indirectly via the Payment Service (save to extent expressly provided in this Agreement) and we reserve the right to make changes and/or corrections at any time to such information, without notice. We accept no liability for any inaccuracies or omissions (other than a fraudulent misrepresentation) in or from such information and any decisions based on such information are the sole responsibility of the customer.

16.2 You acknowledge that we have not represented or warranted that the Payment Service will be uninterrupted, error free or without delay or without compromise of the security systems related to the services or that all errors will be corrected. To the maximum extent permitted by applicable law and subject to Clause 16.5, we exclude all representations and warranties relating to the subject matter of this Agreement and the Payment Service.

16.3 We do not supply the McAfee Software and we cannot under any circumstances be held liable in the event that the McAfee Software purchased by you is not compliant with applicable law or codes of practices and no warranty of any nature, express, implied or statutory, as to the performance of the McAfee Software (including without limitation, any software related thereto)is made by Company to you under this Agreement, including, but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement and the Company disclaims any such express or implied warranties.

16.4     We reserve the right to discontinue access or alter part or all of the Payment Service at any time in our sole discretion without notice or explanation. Save to the extent expressly provided otherwise in this Agreement you will not be entitled to any compensation or other payment upon the discontinuance or alteration of the Payment Service.

16.5 Notwithstanding the foregoing, the disclaimers stated in this Clause 16 do not nor intend to deny you any of your consumer rights whether in whole or part.

 

17.       OUR COMPENSATION FOR LOSS OR DAMAGE

17.1 You hereby agree to hold Company harmless, indemnify us and undertake to keep us indemnified, against any and all losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) incurred or suffered by us and arising directly or indirectly out of:

(a)        any breach, for any reason, by you of the warranties and obligations you have undertaken in this Agreement; and/or

(b)        your use of the McAfee Software.

 

18.   YOUR BREACH OF THIS AGREEMENT

18.1     Without prejudice to our other rights under this Agreement, if you breach these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may:

(a) send you one or more formal warnings;
(b) temporarily suspend your access to the Payment Service;
(c) permanently prohibit you from accessing the
Payment Service;
(d) contact any or all your MNO (mobile network operator) and request that they block your access to the Payment Service;
(e) commence legal action against you, whether for breach of Agreement or otherwise; and/or
(f) request that Intel suspend or delete your access on the McAfee Software.

18.2     Where we suspend or prohibit or block your access to the Payment Service or a part of the Payment Service, you must not take any action to circumvent such suspension or prohibition or blocking (including without limitation creating and/or using a different account).

 

19.       OTHER IMPORTANT TERMS

19.1 This Agreement (which includes our Privacy Policy) constitutes the whole agreement between you and us to the fullest extent permitted by law. This Agreement relates to your access to and use of the Payment Service. For the avoidance of doubt, if you use or install the McAfee Software, you are subject to the McAfee End User License Agreement: https://www.mcafee.com/us/resources/legal/end-user-license-agreements-en-us.pdf.

19.2 We are an independent contractor. Nothing in this Agreement shall be deemed to create a partnership, agency or joint venture between you and the Company.

19.3 We may transfer this Agreement to someone else. We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights as a consumer under the Agreement. If you are unhappy with the transfer, you may contact us to end the Agreement.

19.4     You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.

19.5     Nobody else has any rights under this Agreement. The Agreement is between you and us. No other person shall have any rights to enforce any of its terms (except for Intel as specifically provided herein). The exercise of your rights and our rights, respectively, under this Agreement is not subject to the consent of any other person. 

19.6     If a court finds part of this Agreement illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

19.7     Even if we delay in enforcing this Agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Payment Service, we can still require you to make the payment at a later date.

19.8     Which laws apply to this Agreement and where you may bring legal proceedings: This Agreement, including any dispute or claim arising out of or in connection to this Agreement, shall be governed by the laws of the Republic of South Africa. Legal proceedings in respect of the Payment Service can be brought in the South African courts. However, we retain the right to bring legal proceedings in any jurisdiction where we believe that a violation of our intellectual property rights or any breach of this Agreement is taking place or originating. You are solely responsible for compliance with any applicable laws and regulations of the jurisdiction from which you are accessing or using the Payment Service.

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