1. INTERPRETING THE TERMS AND CONDITIONS
1.1. These Terms and Conditions contain a number of words and phrases which have specific meanings denoted by such words being capitalised.
1.2. If the Terms and Conditions refer to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Terms and Conditions will also be applicable to, and binding on, that party’s liquidator or trustee, as the case may be.
1.3. The contra proferentem rule, or rule of construction that these Terms and Conditions shall be interpreted against the Party responsible for the drafting or preparation of these Terms and Conditions, shall not apply.
1.4. Where in these Terms and Conditions, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
1.5. The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
1.6. Where these Terms and Conditions specify any number of days, the number of days excludes the first day and includes the last day, unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
1.7. Any reference to “business hours” shall be construed as being between the hours 08h00 – 16h00 GMT+2. Any reference to time shall be based upon South African Standard Time.
1.8. All annexures, addenda and amendments to these Terms and Conditions and/or the Registration Form, form an integral part of the Terms and Conditions and, therefore, Wamly’s contract with the Subscriber.
1.9. The words and phrases in the definitions sections, below, bear the meanings assigned to them and related expressions bear corresponding meanings.
2. INTERPRETATION AND DEFINITIONS
In these Terms and Conditions
2.1. clause headings are for the convenience and are not to be used in its interpretation.
2.2. unless the context indicates a contrary intention, an expression which denotes:
2.2.1. any gender includes the other gender;
2.2.2. a natural person includes a juristic person and vice versa; and
2.2.3. the singular includes the plural and vice versa.
2.3. the following expressions bear the meanings assigned to them below and cognate expression bear corresponding meanings:
2.3.1. “Browser” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website and who has no intention of using, or has not used the Services offered by us;
2.3.2. “Candidate” shall mean a person who may be interviewed by a Subscriber using the Software Application;
2.3.3. “Commencement Date” shall mean the date on which the Services provided to the Subscriber will commence as recorded in the Registration Form;
2.3.4. “Confidential Information” shall mean any information received by one Party from the other Party and is marked as confidential or a similar notice (if disclosed in writing or a tangible form), identified as confidential (if disclosed verbally) or should reasonably be treated as confidential under the context in which such disclosure was made.
18.104.22.168. Confidential Information shall not include information that the Party receiving the information can demonstrate:
22.214.171.124.1. is lawfully in the public domain at the time of disclosure thereof;
126.96.36.199.2. subsequently becomes lawfully part of the public domain by publication or otherwise; and
188.8.131.52.3. is or becomes available to the Party receiving such information from a source other than the Party revealing the information, which source was lawfully entitled without any restriction on disclosure to disclose such information to a third party.
184.108.40.206. the Party receiving the Confidential Information will:
220.127.116.11.1. safeguard Confidential Information with the same degree of care as it exercises with its own Confidential Information, but no less than reasonable care;
18.104.22.168.2. not disclose any Confidential Information to third parties; and
22.214.171.124.3. will use the other Party’s Confidential Information solely in the exercise of the rights and obligations under these Terms and Conditions and for no other purpose.
126.96.36.199. the Party so receiving the Confidential Information may disclose same only pursuant to a requirement or request by operation of law, regulation or court order, but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed.
2.3.5. “Enterprise Package” shall mean a Service subscribed for by a Subscriber who confirms that it hires more than 10 (ten) employees per year;
2.3.6. “Fees” shall mean the total amount as payable by the Subscriber to Wamly in respect of the Services rendered, in accordance with the package selected by the Subscriber through the Registration Process and recorded in the Registration Form. The Subscriber shall make payment in accordance with the Payment Terms;
2.3.7. “Intellectual Property” shall mean the expression and/or representation of an intellectual and/or creative process and includes, but is not limited to, any text, images, data, multimedia, ideas, source code, concepts, know how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions;
2.3.8. “Interruption Event” shall mean an act of God, or public enemy, fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot strikes, blockade, embargo, sanctions, epidemic, pandemic, act of government or other authority, compliance with government orders, demands or regulations or any circumstances of like or different nature beyond the reasonable control of the Party so failing (force majeure), will not be deemed to be a breach of these Partner Terms and Conditions, nor will it subject either Party to any liability to the other;
2.3.9. “Interrupted Party” shall mean a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Terms and Conditions by reason of an Interruption Event;
2.3.10. “License” shall mean the non-transferrable, non-exclusive, limited, and revocable license to access the Software Application as granted by Wamly to the User or Subscriber as more fully set out in clause 4 below, which for the avoidance of doubt, shall be construed as Wamly’s Intellectual Property;
2.3.11. “Log in Details” shall mean the unique username and password used by the User or Subscriber to make use of the Services;
2.3.12. “Losses” means all losses (including, but not limited to, those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
2.3.13. “Money Back Guarantee” shall mean the right to a refund contained in clause 20.6;
2.3.14. “Parties” shall mean Wamly and the User (“Party” shall have a corresponding meaning);
2.3.15. “Payment Terms” shall mean the manner in which the Fees shall be paid to Wamly by the Subscriber, being on presentation of invoice;
2.3.16. “Personal Information” shall mean the Personal Information as required from a Browser or User in order to register for the Services or make use of the Website;
2.3.17. “Registration Form” shall mean the document situate on the Website, which shall be completed by a potential Subscriber, or the manual document, which document records certain details relating to the Subscriber together with information pertinent to these Terms and Conditions insofar as each Subscriber is concerned, and shall govern the Subscriber’s relationship with Wamly;
2.3.18. “Registration Process” shall mean the process to be followed by a Browser in completing the Registration Form, in order to make use of the Services to interview Candidates, which shall enable it to make use of the Services and thus make the transition from a Browser to a Subscriber;
2.3.19. “Service Variation” shall mean a material change in the Services, which variations procedure shall be as follows:
188.8.131.52. if the Subscriber wishes to downgrade their package, then the Subscriber will be permitted to do so at https://my.wamly.io/, which downgrade will take effect immediately with the new fee being charged the next month;
184.108.40.206. if the Subscriber wishes to upgrade their package, then the Subscriber will be permitted to do so at https://my.wamly.io/, which upgrade will take effect immediately, with the Subscriber being charged pro rata for that particular billing cycle in which the upgrade was effected; and
220.127.116.11. the upgrade or downgrade of Services by a Subscriber that has subscribed for an Enterprise Package must be done by giving Wamly written notice thereof and not through the online platform. Downgrades will take effect immediately with the new fee being charged the next month, upgrade will take effect immediately, with the Enterprise Package Subscriber being charged pro rata for that particular billing cycle in which the upgrade was effected.
2.3.20. “Services” shall mean the provision of the video interview software comprising the Wamly platform as per the package selected in the Registration Form;
2.3.21. “Software Application” shall mean the video interview application as subscribed to by a Subscriber, through the Website, and which comprise the Services;
2.3.22. “Subscriber” shall mean a Browser on the Website who has signed up as a client for the Services as recorded in the Registration Form;
2.3.23. “Terms and Conditions” shall mean these Terms and Conditions, as amended from time to time, read together with the Registration Form, together with any annexures attached hereto, which annexures shall be read as if specifically incorporated herewith;
2.3.24. “Termination Date” shall mean the date on which the provision of the Services to a Subscriber will terminate;
2.3.25. “User” shall mean a Subscriber and/or Candidate;
2.3.26. “Wamly” shall mean Wamly (Pty) Ltd, a private company, duly registered in accordance with the company laws of the Republic of South Africa, with Registration Number: 2019/233155/07, and carrying on business at 356 Rivonia Boulevard, Edenburg, Sandton, Gauteng, 2128, email@example.com, which may also be referred to herein as “we”, “our” or “us”, and shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers;
2.3.27. “Website” shall mean the website as owned by Wamly on which the Services are offered and which comprises both the website together with the Software Application; and
2.3.28. “you” or “your” shall mean a Browser or User, as the case may be.
3.1. Use of Website Terms
3.1.1. The website https://wamly.io/ and the software application accessible through the Website at https://my.wamly.io (collectively “the Website”), which software application comprises the Services are operated and/or owned by Wamly. These Terms and Conditions are entered into by and between Wamly and you. Any reference to “Wamly “, “we”, “our” or “us”, shall include its employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
3.1.3. Accessing and/or use of the Website after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by these Terms and Conditions, in your individual capacity and for and on behalf of any entity for whom you use the Website. Further, you represent and warrant that you have the authority to do so and that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
3.1.4. To the extent permitted by applicable law, Wamly may modify the Terms. In the modification of these Terms and Conditions we shall advise Users and Subscribers of any changes by popup or other notification on the Website. Such modifications will require acceptance by you prior to your continued use of the Website and shall thereby be construed as your consent to the amended or updated Terms and Conditions. Your only remedy, should you not agree to these Terms and Conditions, is to refuse acceptance of the amended or updated Terms and Conditions, thereby preventing your use of this Website.
4. AGREEMENT TO THE STANDARD TERMS AND CONDITIONS
4.1. Subject to, and on the basis of a Browser’s or User’s acceptance of the Terms, Wamly grants to you a limited, revocable, non-transferable license to access and use the Website and Software Application in accordance with the various policies and agreements which may govern such use and access.
5. INTELLECTUAL PROPERTY
5.1. All rights, titles and/or interest attached to or related to Intellectual Property as belonging to Wamly, which shall comprise, among others, the Software Application and Services, shall remain vested in Wamly.
5.2. All rights, titles and/or interest attached to or related to Intellectual Property as belonging to the User shall remain vested in the User.
6. WARRANTIES BY THE USER
6.1. The User warrants and represents that the Personal Information provided to us is and shall remain accurate, true and correct and that the User will update the Personal Information held by us to reflect any changes as soon as possible by logging on to the Website and editing its Personal Information through the “edit information” tab. Prior to the change being effected by us an email or SMS will be sent to the User requesting confirmation that it is in fact the User who is editing the Personal Information.
6.2. The User further warrants that when registering on the Website it:
6.2.1. is not impersonating any person; and
6.2.2. is not violating any applicable law regarding use of personal or identification information.
6.3. Further and insofar as the Registration Process is concerned, the User warrants that the Log in Details shall:
6.3.1. be used for personal use only; and
6.3.2. not be disclosed or shared by a User to any third party.
6.4. For security purposes the User agrees to enter the correct Log in Details whenever utilising the Services, failing which access will be denied.
6.5. The User agrees that, once the correct Log in Details relating to the User’s account have been entered, irrespective of whether the use of the Log in Details is unauthorised or fraudulent, the User will be liable for payment of any amounts that may become due and owing as a result of such Log in.
7. WARRANTIES BY WAMLY
7.1. We make no representation or warranty (express or implied) that the Website or Services will:
7.1.1. meet a User’s needs;
7.1.2. be accessible at all times;
7.1.3. be accurate, complete or current; or
7.1.4. be free from viruses.
7.2. Subject to any express terms, Wamly makes no representation or warranty as to the volume or subject area of Services accessible through the Website or the Software Application.
7.3. Except for any express warranties in these Terms and Conditions, the Services are provided on an “as is” basis and used at your own risk. Wamly makes no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer as a result of you accessing or using the Website or the Services.
7.4. We do not warrant that the use of the Website and/or the Services will be uninterrupted or error free, nor do we warrant that we will review information for accuracy or that we will preserve or maintain the User’s Personal Information without loss.
7.5. We shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside of our reasonable control. While a User may have statutory rights, the duration of any such statutorily warranties, will be limited to the shortest period to the extent permitted by required law.
8. PROTECTION OF PERSONAL INFORMATION
9. UNAUTHORISED USE OF THE WEBSITE, THE SERVICES OR EMAIL ADDRESSES AS PROVIDED BY WAMLY
9.1. A User or Browser may not use the Website, the Software Application or the Services for any objectionable or unlawful purpose.
9.2. A User or Browser is not able to upload any information onto the Website save for the Personal Information as required when completing the Registration Process.
9.3. A User or Browser undertakes not to send to us spam mail, or make use of other unsolicited mass e-mailing techniques.
9.4. A User or Browser shall not introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment through email communication with us.
9.5. A User or Browser may not sell, redistribute or use information contained on the Website or in respect of the Services for a commercial purpose without our prior written consent.
9.6. A User or Browser may not remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Website or any of our emails.
9.7. A User or Browser may not distribute or publish any part of the information or content included in the Services on any publicly accessible electronic network, including without limitation the internet and the world wide web, Facebook, YouTube, or otherwise publish, broadcast or display any such information in public.
9.8. A User or Browser understands and agrees that it is solely responsible for compliance with any and all laws, rules and regulations that may apply to its use of the Website or the Services.
10. LINKS TO OTHER WEBSITES
10.1. The Website may contain links or portals to other websites. We have no control over websites operated by third parties and the User agrees that we are not responsible for and will have no liability in connection with a User’s access to or use of any third-party website.
11.1. The contents of the Website and the Software Application is the property Wamly, unless specified otherwise, and is protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website and/or the Services, is our property, unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
11.2. Except as stated in the Terms, none of the contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
11.3. Users and Browsers are expressly prohibited to “mirror” any content, contained on the Website, on any other server unless our prior written permission is obtained, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
11.4. The User and/or Browser is granted a limited, revocable, and non-exclusive right to create a hyperlink to the Website, so long as the link does not portray us, our affiliates or Services in a false, misleading, derogatory, or otherwise offensive manner. A User and/or Browser may not use our logo or other proprietary graphic or trademark as part of the link without our permission or the permission of our affiliates or content suppliers.
11.5. All trademarks and copyrights, as also any other intellectual property rights, in and to any of the content of the Website and the Software Application are the exclusive property of Wamly.
12. INTELLECTUAL PROPERTY
12.1. A User and/or Browser undertakes not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Website and/or the Software Application including any algorithm used by us.
12.2. Wamly owns or is licensed to use all intellectual property on the Website together with the Software Application. A User and/or Browser may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
13.1. The Subscriber appoints Wamly to render the Services as recorded in the Registration Form.
13.2. The manner in which the Services will be regulated are recorded in these Terms and Conditions read together with the Registration Form, and the Subscriber agrees to be bound thereby.
14. SERVICE DURATION
14.1. The provision of the Services shall commence on the Commencement Date and terminate on the Termination Date.
15. THE SERVICES
15.1. The Services as rendered by Wamly to the Subscriber shall be as per the package selected in the Registration Form, read in conjunction with Service Variation, in the event that a Service Variation has occurred.
15.2. Wamly shall not be required to render Services until such time as the first installment has been received from the Subscriber. In the event of the Subscriber failing to make any payment, Wamly shall be entitled to refuse to provide the Subscriber with any Services.
16. SERVICE VARIATION
16.1. The implementation of a Service Variation in accordance with the procedure set out in 2.3.19, shall be determined by Wamly in its sole and unfettered discretion.
16.2. Wamly reserves its right to alter the Fees and/or the Payment Schedule should either one of these be effected as a result of the implementation of a Service Variation.
17.1. Where the Subscriber encounters difficulties with the software comprising the Services, the Subscriber will be required to log a support query with Wamly, and Wamly will endeavour to resolve the query as soon as is reasonably possible.
17.3. Within the response time of the applicable package of the Subscriber as appears in the Registration Form, Wamly will respond to the query by conducting an initial investigation into the issue, whereupon the Subscriber agrees to provide Wamly with such information and documentation as reasonably requested by Wamly.
17.4. Following the investigation, Wamly will classify the query as a:
17.4.1. “Subscriber Error” unrelated to any deficiencies in the software or Services, with Wamly then endeavouring to provide a solution;
17.4.2. “Fault” that can be resolved by Wamly: In such event, Wamly will endeavour to provide the Subscriber with a working solution and an estimated timeframe for resolving the issue; or
17.4.3. “Functionality Requirement” necessitating reviewing, scoping and development: In such event, Wamly may list the requirements for possible future development, and all progress can be tracked on Wamly’s online support portal at support.wamly.io.
17.5. Any working solutions provided by Wamly to the Subscriber, as applicable, will be done telephonically, via e-mail, on-site, or via an on-line connection, at Wamly’s discretion.
17.6. A support query will be considered resolved once a working solution has been provided to the Subscriber, and Wamly shall be under no obligation to provide any further solution.
18. REGISTRATION PROCESS
18.1. In order to access the Services, a User is required to register for same on the Website.
18.4. In the event of a User being of the view that its Log in Details are being used by someone else, please contact us immediately at firstname.lastname@example.org.
19. SERVICE LEVELS
19.1. Wamly hereby undertakes to ensure that the standard of the Services it shall render to the Subscriber in terms of these Terms and Conditions shall be in accordance with what is reasonably expected of a service provider of its nature and experience, and further that such Services shall be performed in a timeous manner.
20.1. The Subscriber shall, as consideration for the Services to be rendered by Wamly in terms of these Terms and Conditions, effect payment to Wamly of its Fees on presentation of invoice.
20.2. Wamly may require a deposit, payable in advance, prior to the Services commencing, and such deposit shall be communicated to the Subscriber in writing.
20.3. All amounts due to Wamly shall be made in accordance with the Payment Terms.
20.4. In the event of these Terms and Conditions being renewed, Wamly reserves the right to increase its Fees. Such increase will take effect on the next billing cycle, and the Subscriber will be notified through Wamly’s monthly mailer and on the Wamly website’s product updates page.
20.5. The Subscriber agrees that it shall pay all of Wamly’s expenses in recovering any amounts the Subscriber owes Wamly, including legal costs on the attorney and Subscriber scale, collection charges and tracing fees, and VAT thereon (if applicable).
20.6. The Subscriber is entitled to a Money Back Guarantee subject to the following terms:
20.6.1. The Subscriber shall be entitled to a refund of the Fees if the proper use of the Services does not reduce the normal time spent on interviewing Candidates by at least 50% (fifty percent);
20.6.2. The Money Back Guarantee is only available for a period of 30 (thirty) days immediately following the date on which the Subscriber agrees to these Terms and Conditions;
20.6.3. In order to request a refund, the Subscriber shall be required to email Wamly at the following email address: email@example.com.
20.6.4. All refunds to which a Subscriber is entitled and has requested shall be processed within 30 (thirty) days of the request for such refund.
20.6.5. Wamly may refuse a refund request if they are of the opinion that the Money Back Guarantee is being abused, used in bad faith, or taken advantage of.
21. DISCOUNTS AND PROMOTIONS
21.1. Although Wamly will not be running promotions or providing discounts on a regular basis, it does reserve the right to run promotional campaigns and provide discounts to Subscribers on an ad hoc basis.
22.1. Either Party to the Terms and Conditions may terminate in accordance with clause 26.1.1 below.
22.2. In addition, either Party may immediately terminate these Terms and Conditions by giving written notice to the other Party if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other Party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other Party, or in the case of the Subscriber, if the Subscriber materially breaches its obligations to make payment pursuant to these Terms and Conditions.
22.3. If upon termination there exist any materials furnished, or Services performed by Wamly for which the Subscriber has not paid in full, then and until such time as the Subscriber has paid Wamly in full, the Subscriber agrees not to use any such materials, in whole or in part, or the product of such Services.
22.4. Upon termination of these Terms and Conditions, provided that there is no outstanding indebtedness then owing by the Subscriber to Wamly, Wamly shall transfer, assign and/or make available to the Subscriber, all property and materials in Wamly’s possession or under its control belonging to the Subscriber. In the circumstances outlined herein, the Subscriber agrees to pay for all costs associated with the transfer of materials.
22.5. Notwithstanding any of the aforegoing, either Party shall be entitled to terminate these Terms and Conditions, for any reason or no reason, by serving one billing cycle’s written notice on the other Party.
23.1. Neither Party shall, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Party called upon to disclose the Confidential Information) disclose such Confidential Information to any person, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.
23.2. The Party receiving the Confidential Information may disclose same to its officers, employees, and subcontractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
23.3. The Party receiving the Confidential Information shall inform any officer, employee or subcontractor to whom it discloses such Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of these Terms and Conditions), on the basis that the party disclosing the Confidential Information is responsible for any disclosure, in breach of this clause 23, by the person to whom it is disclosed.
23.4. Notwithstanding the provisions of this clause 23:
23.4.1. either Party may make reference to these Terms and Conditions, the Parties’ identities and a general description of the Services rendered pursuant to and in terms of these Terms and Conditions, unless such information is explicitly and specifically identified as Confidential Information on written notice by either Party to the other; and
23.4.2. either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding, the details of its financial performance, its financial performance forecast and the Party’s strategic planning.
24. PROHIBITION ON INTERFERENCE AND SOLICITATION
24.1. Neither Party shall knowingly, for the duration of these Terms and Conditions and for a period of 1 (one) year after these Terms and Conditions terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative and/or agent of the other Party who was involved in the implementation or execution of these Terms and Conditions to terminate his or her employment with that Party and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the other Party.
25. LIMITATION OF LIABILITY AND INDEMNITY
25.1. General disclaimers and limitation of liability
25.1.1. The Website shall be used entirely at your own risk.
25.1.2. We are not responsible for, and you agree that we will have no liability in relation to, the use of and conduct in connection with the Website, or any other person’s use of or conduct in connection with the Website or the Services, in any circumstance.
25.1.3. We cannot guarantee or warrant that any file downloaded from the Website or the Software Application or delivered to you via email will be free of infection or virus, worms, trojan horses or other code that has contaminating or destructive qualities. You are responsible for implementing appropriate processes, systems and procedures to protect yourself from this type of issue.
25.1.4. You indemnify us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that we may suffer or incur as a result of or in connection with your improper use of or conduct in connection with the Website and/or the Services, including any breach by you of these terms and conditions, or any applicable law or licensing requirements.
25.1.5. To the maximum extent permitted by law we exclude all implied representations and warranties which, but for these terms, might apply in relation to a User’s and/or Browser’s use of the Website or the Services.
25.1.6. To the extent that our liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute or delict (including negligence), to you will be limited to the minimum amount imposed by such law.
25.1.7. Notwithstanding anything to the contrary in these terms and conditions, in no circumstances will we be liable for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising from or in any way connected with your use of the Website or to the interruption of the Services of any type, whether in delict, contract or otherwise.
25.2. Disclaimers and limitation of liability in relation to the Services:
25.2.1. To the fullest extent permissible by law, Wamly disclaims all warranties, any representations of fitness for purpose of any kind, whether express or implied in respect of the Services and the User utilises the Services at its own risk.
25.2.2. The User agrees that Wamly is unable to, and is not required to, guarantee a particular result, or set of commercial results.
25.2.3. The User agrees that neither Wamly nor Wamly’s associates shall be liable for any Losses however arising and whatever the cause including, but not limited to, Losses arising as a result of the User’s negligence, and/or failure to furnish Wamly with adequate information it requires in order to render the Services.
25.2.4. The User hereby indemnifies Wamly and Wamly’s associates from any Losses, which may arise as a result of the User’s unlawful conduct, wilful misconduct, negligence, and/or gross negligence.
25.2.5. The User irrevocably waives any claims it may have against Wamly arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or these Terms and Conditions more than 1 (one) year after the cause of action relating to such claim or legal action arose.
26.1. Subject to any other provision of these Terms and Conditions providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these Terms and Conditions and fail to remedy such breach within 10 (ten) days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
26.1.1. terminate these Terms and Conditions, provided the breach in question is a breach going to the root of these Terms and Conditions; or
26.1.2. claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
in either event, without prejudice to the Aggrieved Party’s right to claim damages.
27.1. In the event of any dispute or difference arising between the Parties relating to or arising out of these Terms and Conditions, including the implementation, execution, interpretation, rectification, termination or cancellation of these Terms and Conditions, the chief executive officers of the Parties or any of their designated officials shall upon request by any Party meet to attempt to settle such dispute or difference, and failing settlement within a period of 7 (seven) business days from such a request, the said dispute or difference shall on demand by any Party be submitted to arbitration in Johannesburg in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
27.2. The Parties irrevocably agree that the decision in any arbitration proceedings:
27.2.1. will be binding on all of them;
27.2.2. will forthwith be carried into effect;
27.2.3. may be made an order of any court of competent jurisdiction.
27.3. Nothing herein contained shall be deemed to prevent or prohibit either Party from applying to the appropriate court for urgent relief.
27.4. The provisions of this clause will continue to be binding on the Parties notwithstanding any termination or cancellation of these Terms and Conditions.
28. GOVERNING LAW AND JURISDICTION
28.1. These Terms and Conditions shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the appropriate South Africa court in which Wamly is domiciled.
29. INTERRUPTION EVENT
29.1. An Interrupted Party shall be relieved of its obligations in terms of these Terms and Conditions during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
29.2. The Interrupted Party shall notify the other Party of an Interruption Event in writing as soon as it becomes reasonably aware of the Interruption Event as such.
29.3. In the event that an Interruption Event exceeds:
29.3.1. 20 (twenty) consecutive days, and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of these Terms and Conditions; or
29.3.2. 3 (three) consecutive months, and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate these Terms and Conditions and shall only remain liable for performance under these Terms and Conditions which fell due immediately prior to the Interruption Event.
30. DOMICILIUM AND NOTICES
30.1. The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Terms and Conditions:
30.1.1. In respect of the Subscriber, the address and contact details set out in the Registration Form; and
30.1.2. In respect of Wamly, as per clause 2.3.26 above.
30.2. Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number, and shall be in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Party of such change.
30.3. All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
30.4. A notice sent by one Party to another Party shall be deemed to be received:
30.4.1. on the same day, if delivered by hand;
30.4.2. one day after transmission if sent by email;
30.4.3. on the third day after despatch, if sent by prepaid courier.
30.5. If any notice is sent by email, the provisions of the Electronic Communications and Transactions Act 25 of 2002 governing receipt of data messages, shall apply.
30.6. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
31.1. Each Party hereto acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of these Terms and Conditions and that it has either taken such independent legal advice or dispensed with the necessity of doing so. Further, each Party hereto acknowledges that all of the provisions of these Terms and Conditions and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties in connection with these Terms and Conditions.
31.2. The Subscriber shall not be permitted to cede, assign, or otherwise transfer any or all of its rights, interests or obligations under and/or in terms of these Terms and Conditions without the prior written consent of Wamly. Wamly may cede, assign, or otherwise transfer any or all of its rights, interests, or obligations under and/or in terms of these Terms and Conditions without the written consent of the Subscriber.
31.3. These Terms and Conditions constitutes the whole Terms and Conditions between the Parties as to the subject matter hereof and no Terms and Conditions, representations or warranties between the Parties, other than those set out herein, are binding on the Parties.
31.4. No addition to, variation or consensual cancellation or novation of these Terms and Conditions and no waiver of any right arising from these Terms and Conditions, or its breach or termination, shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorized representatives.
31.5. For the avoidance of doubt, data messages as defined in the Electronic Communications and Transactions Act No. 25 of 2002 shall not constitute “writing” for purposes of this clause, whether such data message includes an electronic signature or not.
31.6. No latitude, extension of time or other indulgence, which may be given or allowed by a Party to another in respect of the performance of any obligation hereunder or enforcement of any right arising from these Terms and Conditions and no single or partial exercise of any right by any Party shall, under any circumstances, be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from these Terms and Conditions or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
31.7. Each undertaking, covenant and agreement in each clause and sub-clause of these Terms and Conditions is separate and severable, and in the event that any undertaking, covenant, agreement or other provision contained herein shall be determined to be void or unenforceable or illegal in whole or in part for any reason whatsoever, such invalidity, unenforceability or illegality shall not affect the remaining undertakings, covenants, agreements and provisions hereof which shall remain of full force and effect and binding on all Parties hereto.
31.8. These Terms and Conditions may be executed by the Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Terms and Conditions.