End User Licence Agreement

September 2021 | Version 1.0

1.             Introduction

This end-user licence agreement (EULA) is an agreement between us as the software vendor and you as the software user. Under these terms:

  • we are the software vendor – SAFEsnap (Pty) Ltd (Registration number: 2018/637258/07), also known as SAFEsnap; and
  • you are the software user – a user of the SAFEsnap (https://safesnap.co.za) website, SAFEsnap browser interface and mobile apps.

2.             Definitions and interpretation

2.1.           Definitions. In this agreement:

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);

agreement means the end-user licence agreement between us and you;

business day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into this agreement is organised;

calendar day means a day counted from midnight to midnight. It includes all days of the month, including weekends (Saturday and Sunday) and public holidays;

documentation means any available installation and operating instructions, user and support manuals and technical literature pertaining to the software that we supply with the software;

our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under this agreement, employ, provide, modify, create or otherwise acquire rights in and includes any:

  • concepts or ideas;
  • methods or methodologies;
  • procedures or processes;
  • know-how or techniques;
  • function, process, system, data, or object models;
  • templates;
  • the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs;
  • general purpose consulting and software tools, utilities, routines or frameworks;
  • logic, coherence and methods of operation of systems; and
  • patches or enhancements to open source libraries;

personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;

services means any Internet-based services we or related persons provide to you related to the software;

software means the software in the form of the specific software application referred to under this agreement and includes:

  • any media that you receive it on;
  • all upgrades, updates, or enhancements to the software application; and
  • the documentation.

terms means the terms, consisting of:

  • this agreement; and
  • any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific services);

territory means a specific geographic region;

third party contractor means any contractor, supplier, licensor, or software vendor of a part of the software, which is not a party to this agreement;

third party software means all third party software owned by a third party but legally licensed to us for use in providing the software or services;

we, us, or our means the software vendor that enters into this agreement and those related to it;

writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;

you or your means the customer that enters into this agreement and those related to it;

your data means any data belonging to you or your customer (including information about an identifiable person) that:

  • you or your customer (or any third party on your behalf) provide to us; or
  • we generate, process, or supply to you or your customer in providing the software;
  • but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors.

2.2.          Interpretation. The following rules apply to the interpretation of the agreement:

All headings are inserted for reference purposes only and must not affect the interpretation of this agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within this agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in this agreement, when any number of days is prescribed in this agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

3.             Agreement required

You may not use the software or the services if you do not agree to this agreement. You agree to this agreement by:

  • using the software in any way – such as by downloading, installing, or running it;
  • using the services in any way – such as by accessing them through the software; or
  • exercising any rights granted to you under this agreement.

4.             Software application

This agreement applies to your use of the SAFEsnap software application, which is a mobile application. Please see our website at https://safesnap.co.za for more information on the software application.

5.             Grant of licence

5.1.          Grant. We grant you a perpetual, non-exclusive, and non-transferable licence to install and use the software in object code form, in the territory in which you are in when you accept this agreement, together with the documentation, on the terms of this agreement. Object code form is the ready-to-execute version of the software which a compiler has already translated from source code into a language that a computer can run. It does not include the source code, which is the programmer’s original instructions in a high-level programming language that a compiler needs to convert into object code before a computer can run them.

5.2.          Licensed device. You must assign the licence to one or more devices after registering for the software. You may use the software on any licensed device, each of which we will consider a licensed device in their own right.

5.3.          Rights to decompile. If you are located in the European Union, you have certain rights to decompile the software if:

  • this is necessary to obtain the information that you need to make the software interoperable with other software; and
  • we have not made that information available to you.

Before decompiling the software, you must first ask us in writing to provide you with the interoperability information that you need. You must provide us with full details of your requirements so that we can assess what information you need. We may impose reasonable conditions on providing you with interoperability information. You must use that information only for the purpose of making the software interoperable with our software. You must not use that information for any other purpose.

5.4.          Apple, Google Play, and Huawei terms. If you downloaded the mobile app from the Apple Store, Google Play Store, or Huawei AppGallery, the following terms apply:

  • the licence granted to you for our mobile app is limited to a non-transferable licence to use the application in accordance with the usage rules of the applicable app distributor terms of service;
  • we are responsible for providing any maintenance and support services in respect to the mobile app as specified in this agreement or as required under applicable law. You acknowledge that each app distributor has no obligation to provide any maintenance and support services with respect to the mobile app;
  • in the event of any failure of the mobile app to conform to any applicable warranty, you may notify an app distributor, and if applicable, the app distributor may refund the purchase price for the mobile application. The app distributor has no other warranty obligations with respect to the mobile app, unless required under applicable law;
  • you warrant that (i) you are not located in a country that is subject to a U.S government embargo, or that has been designated by the U.S government as a “terrorist supporting” country; and (ii) you are not listed on any U.S government list of prohibited or restricted parties;
  • you must comply with applicable third party terms when using the mobile app; and
  • you agree that the app distributors are third party beneficiaries of this agreement, and that each app distributor will have the right to enforce this agreement against you as a third party beneficiary.

6.             Your use

You agree to use:

  • the software and documentation only for your own purposes and not to exploit them for your own commercial gain;
  • the documentation only within your organisation in relation to your use of the software; and
  • reasonable care and protection to prevent the unauthorised use, copying, publication, or dissemination of the software.

7.             Services

7.1.          Consent. You agree that we may provide certain services with the software. We may change or cancel these services at any time.

7.2.          Acceptable use. You may not use the services in any way to:

  • harm another person’s use of them; or
  • gain unauthorised access to any other service or system.

8.             Your data responsibility

You (or your customer) will be able to enter facts, figures, or other information into the software in electronic form. This is your data in terms of the definition above and you remain responsible for it. We are not responsible for any of your data processed through our software in any way. This means that:

  • we are not responsible for whether processing any personal information contained in your data through the software complies with the relevant data protection laws;
  • although we will do our best to prevent unauthorised access to your data through all technical means available in the software, we are not responsible for someone getting unauthorised access to your data through other means – such as hacking or any form of social engineering;
  • despite taking great care to program the software to store your data reliably, we are not responsible for the integrity of your data because various other factors outside of the software influence this – including your computer equipment, your operating system, or the presence of malicious software on your system.

9.             Privacy and data protection

9.1.          Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. We both acknowledge that we are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.

9.2.          Responsible party. You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.

9.3.          Cross-border transfers. You consent to us transferring your data across a country border to enable us to comply with our obligations under this agreement.

9.4.          Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.

9.5.          Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.

9.6.          Preservation of integrity of your data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under this agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.

9.7.          Records. You agree that our records are prima facie evidence of the software provided to you.

10.        Intellectual property

10.1.       Your data. You own all your data. We do not own your data or other third party content used as part of the software. All title, ownership rights and intellectual property rights in and to the content accessed through the software belong to you or the applicable content owner and may be protected by applicable copyright or other law.

10.2.       Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in this agreement, we will own all right, title, and interest in our technology.

10.3.       Use of our technology. If we utilise any of our technology in connection with our performance under this agreement, our technology will remain our property and you will not acquire any right or interest in it.

10.4.       Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.

10.5.       Restrictions. Except as expressly permitted under this agreement, the software may not be:

  • modified, distributed, or used to make derivative works;
  • rented, leased, loaned, sold or assigned;
  • decompiled, reverse engineered, or copied; or
  • reproduced, transferred, or distributed.

10.6.       Prosecution. All violations of proprietary rights or this agreement will be prosecuted to the fullest extent permissible under applicable law.

11.        User information

11.1.       User information. The software may collect information from a licensed device. You consent to a licensed device transmitting this information to us.

11.2.       Statistical information. We may collect statistical information by monitoring your use of the software for the purpose of improving the software and other purposes that we communicate to you.

12.        Support or maintenance

We will not maintain or support the software in any way unless otherwise agreed with you in writing.

13.        Limitation of liability

13.1.       Direct damages limited. We are not liable to you for any direct damages to the extent allowed under applicable law.

13.2.       Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from this agreement.

13.3.       We are not liable for your default. We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of this agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.

13.4.       Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.

13.5.       Indemnity. We agree to indemnify, defend and hold you (and your personnel) harmless against any and all:

  • loss of or damage to any property or injury to or death of any person; and
  • loss, damage (including attorneys’ fees on an attorney and own client basis), costs and expenses that you may suffer or incur arising directly or indirectly from: (i) any wilful misconduct or fraud by us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property.

14.        Breach and termination

If a party:

  • does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so;
  • breaches this agreement materially twice or more in any six month period;
  • is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
  • takes steps to deregister itself (close down) or is deregistered;
  • makes any settlement or arrangement with its creditors; or
  • fails to pay a court order against it (does not satisfy a writ of execution) for more than one million rand, within 21 days; then the other party may, without prejudice to any of its rights:
  • claim specific performance of this agreement (make the party comply with this agreement); or
  • immediately cancel this agreement in writing; and
  • claim damages from the other party, including any claim for any fees already due.

15.        Suspension of software or service

We may immediately suspend your right to use the software in any of the following circumstances:

  • you attempt a denial of service attack on any of the services;
  • you seek to hack or break any security mechanism on any of the software or services;
  • we determine in our sole discretion that your use of the software or services poses a security threat to us, or to any other user of the software or services;
  • you otherwise use the software or services in a way that disrupts or threatens the software or services;
  • we receive notice, or we otherwise determine, in our sole discretion, that you may be using the software or services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party; or
  • we determine, in our sole discretion, that our provision of any of the software or services to you is prohibited by applicable law,or has become impractical or infeasible for any legal or regulatory reason.

16.        Termination

16.1.       Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:

  • we discontinue the software or services;
  • we believe providing the software or services could create an economic or technical burden or material security risk for us;
  • termination is necessitated by us having to comply with any applicable law or requests of governmental entities; or
  • we determine that your use of the service or the provision of any of the software or services to you has become impractical or infeasible for any legal or regulatory reason.

16.2.       Termination for convenience. We may, in our discretion, terminate this agreement, on reasonable written notice to you.

16.3.       Duties on termination. On termination, cancellation, or expiry of this agreement:

  • you must uninstall the software from all licensed devices;
  • we will stop providing the services; and
  • your right to use the software or services will cease to exist.

16.4.       Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.

17.        Effect of termination

17.1.       No expectation. We acknowledge and confirm that no expectation has been created by anyone, by this agreement or any other agreement, entitling us or you to expect:

  • continued service for any period whether definite or indefinite;
  • the renewal or extension of the term of any agreement; or
  • the conclusion of any further agreement between you and us or our personnel.

17.2.       Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.

18.        Resolving disputes

18.1.       Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:

  • negotiation (direct talks to try and agree how to end the dispute); failing which
  • mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
  • arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).

18.2.       Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.

18.3.       Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.

18.4.       Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in [Johannesburg | Cape Town]. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

18.5.       Periods. The parties may agree in writing to change the periods for negotiation or mediation.

18.6.       Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

18.7.       Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.

19.        Notices and domicile

19.1.       Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.

19.2.       Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.

19.3.       Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.

19.4.       Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.

19.5.       Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

20.        Beyond human control

20.1.       Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.

20.2.       Party affected to notify other party. If there is an event beyond human control, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.

20.3.       Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of an event beyond human control, the other party may cancel this agreement by written notice.

21.        Assignment and subcontracting

21.1.       No assignment. You may not delegate your duties under this agreement or assign your rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of our business or some of our assets.

21.2.       Our cession and assignment. We may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.

21.3.       Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.

22.        General

22.1.       Entire agreement. This agreement is the entire agreement between the parties related to the relationship between us as the software provider and you as the software user when it comes to the software. Other agreements may apply to other relationships between the parties when it comes to other subjects.

22.2.       Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the software or services. If you continue to use the software or services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.

22.3.       Changes to any third party software license agreement. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website or in the software, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.

22.4.       Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

22.5.       Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.

22.6.       Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.

22.7.       Governing law. South African law governs this agreement.

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