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WHIZZOH END USER TERMS AND CONDITIONS




1. TERMS

1.1. These Terms (“Terms”) govern your (“User” or “you”) use of the mobile application, together with applications, website, content, products and services (“Services”) made available by Whizzoh (Proprietary) Limited (“Whizzoh”) a private company with registration number 2014/144875/07, incorporated in accordance with the laws of the Republic of South Africa with registered address at 306 Northcliff Atrium, 189 Beyers Naude Drive, Northcliff, Gauteng, 2195.

1.2. By accessing and using the Whizzoh Services, the User agrees to be bound by the Terms set out in this legal notice. If you do not wish to be bound by these Terms, you may not access, display, use, download, or otherwise copy or distribute the Whizzoh Services.

1.3. The Whizzoh Services are only available to persons over the age of 18 years. If you are under the age of 18, you must obtain your parents’ or legal guardians’ advance authorisation, permission and consent to be bound by these Terms before accessing the Whizzoh Services.

1.4. Whizzoh reserves the right, in its sole discretion, to amend and/or replace any of, or the whole of, the Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on the applicable Whizzoh Service. Each time a User accesses the applicable Whizzoh Service, the User shall be deemed to have consented, by such access and/or use, to the Terms, as amended and/or replaced by Whizzoh from time to time. If you are not satisfied with the amended Terms, you should refrain from using the Whizzoh Services.

1.5. Whizzoh will however give the User prior notice where Whizzoh has collected personal information from the User and the purpose for which Whizzoh collected that information, is affected by the intended amendment.

1.6. If there is anything in these Terms that you do not understand then please contact us as soon as possible – see clause 11 below for contact details. Please note that calls to us are charged at national rates and may be monitored for training, security and quality assurance purposes.

2. SERVICES

The Whizzoh Services constitute a technology platform that enables the User of Whizzoh’s website and mobile application provided as part of the Whizzoh Services (each, a “Whizzoh App”) to advertise for assistance services (a “Call”), select an independent third party service provider (“SP”) from a bid received from the SP (“Bid”), schedule an appointment with the SP, and effect payment to the SP.

3. USER ACCOUNT

3.1. Whizzoh makes the Whizzoh Services available to the User through the use of the Whizzoh App on the User’s mobile device.

3.2. The User must register a user account (“Account”) on the Whizzoh App in order to have access to the Whizzoh Services.

3.3. Registration of an Account will require the User’s name, physical address, mobile number and credit card details.

3.4. Upon registration of an Account, a test transaction of R1 will be processed against the credit card.

3.5. The User undertakes to provide accurate registration information and to keep such information up to date. Whizzoh reserves the right to, immediately and without notice, close Accounts that have been opened with inaccurate, stolen or false information.

3.6. Registration will also require the User to supply the Whizzoh App with a password (“Password”). The User undertakes to keep the Password confidential and to immediately notify Whizzoh if the User is aware or suspects that an unauthorised person has obtained access to the Password or if there has been unauthorised use of the Password. The User acknowledges and agrees that Whizzoh will not be liable in the event that any unauthorised person uses or transacts on the Whizzoh App due to a failure by the User to maintain the confidentiality of the Password.

3.7. The User may not transfer the Account to any other person or entity.

3.8. The Account may not be used for unlawful purposes, and Whizzoh reserves the right, to immediately and without notice, close Accounts that have been opened for, have been used for, or are being used for unlawful purposes.

3.9. The User consents to receipt of SMS messages to verify registration and for other administrative and promotional purposes. The User is entitled to opt out of the promotional SMS messages.

3.10. The User acknowledges that the Whizzoh App will require notifications to be switched on, on the mobile device, to utilise the Whizzoh Services. The User can elect to disable these notifications, but acknowledges and accepts that this will limit the User’s ability to use the Whizzoh Apps.

3.11. The User further acknowledges that the Whizzoh App requires internet access through the mobile device. It is the User’s responsibility to obtain the data network access necessary to facilitate communication of the mobile device with the Whizzoh server. The User is responsible for all fees associated with mobile internet communications.

4. PAYMENT

4.1. Payment will be made online by credit card only, using the credit card details provided upon registration of the Account, through a sufficiently secure payment system. The SP is not permitted to accept, and the User is not permitted to make, payment by any other means. Such conduct shall constitute a breach of contract by the User.

4.2. The online payment system allows for review, corrections and withdrawal by the User prior to placing a final order.

4.3. The User acknowledges and accepts that payment will be processed once the SP has rendered the emergency home assistance service (“the SP Service”) and the SP has logged the SP Service as completed.

4.4. The SP will not perform any further work outside of the work detailed in the accepted Bid, unless a further Bid is provided to the User via the Whizzoh App.

4.5. Payment will be made to the SP within 3 (THREE) Business Days after payment has been made by the User. Payment to the SP may be suspended pending resolution of any legitimate complaint or dispute lodged by the User with Whizzoh before the expiry of 3 Business Days from the date of payment by the User.

4.6. The User will be required to rate the SP Service according to a scale of 1 to 5. If the User is not satisfied with the delivery of the SP Service, the User has the right to lodge a complaint through the Whizzoh App. After the complaint has been investigated, in consultation with the SP, the SP will repair the work, or the User will be allocated a different service provider, or the payment will be refunded to the User. Nothing in this clause shall restrict or prevent the SP or the User from exercising their rights against the other in terms of the Consumer Protection Act 68 of 2008 (“CPA”). Whizzoh reserves the right to moderate comments posted by a User and shall be entitled, but not obliged, to review, modify or remove any User comments.

4.7. If the User holds a valid membership of a group benefit scheme in terms of which a company provides the User Services to its members as part of a group benefit (“a User Group Scheme”), and the User has duly registered his membership with the User Group Scheme using the Whizzoh App:

4.7.1. Whizzoh will facilitate payment by the User Group Scheme of the charges incurred by the SP Services to the value of the minimum benefits available to the User in terms of the User Group Scheme (“the Minimum Benefits”);

4.7.2. Whizzoh will to clearly indicate to the User on the Whizzoh App at the time of each Call what Minimum Benefits are available to the User;

4.7.3. The SP will not perform any further work outside of the work covered by the Minimum Benefits, unless a Bid is provided to the User via the SP App and Whizzoh App. The User is personally liable for any additional or co-payments in excess of the Minimum Benefits and undertakes to make payment thereof on demand to Whizzoh, which payment will be processed online by charge against the User’s credit card.

4.8. Subject to the provisions of the CPA where applicable, if the User, through no fault of the SP, cancels the booking made via the Whizzoh App:

4.8.1. before the SP’s representative has been dispatched, no cancellation fee will be processed by Whizzoh;

4.8.2. after the SP has dispatched a representative and such representative is indicated on the SP App as being en route, the cancellation shall be subject to a cancellation penalty of 50% of the agreed call-out fee, which charge shall be levied automatically upon cancellation by the User.

5. SCOPE OF USE

5.1. Whizzoh grants the User a non-exclusive, non-transferable, limited and revocable (reversible) right to access, display, use and download the Whizzoh App and any current and future content available through the Whizzoh App (“the Content”), for personal, non-commercial purposes and in connection with the Whizzoh Services only.

5.2. The User hereby agrees that it shall not itself, nor through a third party:

5.2.1. copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any other way deal with any part of the Whizzoh App or Content for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;

5.2.2. decompile, disassemble or reverse engineer any portion of the Whizzoh App;

5.2.3. write and/or develop any derivative of the Whizzoh App or any other software program based on the Whizzoh App;

5.2.4. modify or enhance the Whizzoh App. In the event of a User effecting any modifications or enhancements to the Whizzoh App in breach of this clause, such modifications and enhancements shall be the property of Whizzoh;

5.2.5. without Whizzoh’s prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to the Whizzoh App by persons other than the User;

5.2.6. remove any identification, trademark, copyright or other notices from the Whizzoh App;

5.2.7. post or transmit, by means of reviews, comments, suggestions, ideas, questions or other information through the Whizzoh App, any content which is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually-explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind; and/or

5.2.8. notwithstanding anything contained to the contrary in these Terms, use the Whizzoh App for any purpose other than personal, non-commercial and information purposes. The Whizzoh App and the Content may not be reproduced or otherwise exploited for any commercial purpose without the express prior written consent of Whizzoh.

5.3. Any unauthorised use terminates this license.

5.4. Whizzoh reserves the right to refuse service, terminate Accounts, remove or edit Content, or cancel Bids in its sole discretion.

5.5. Whizzoh does not offer products or services to minors. If you are under the age of 18, you may act upon any offers on the Whizzoh App.

6. INTELLECTUAL PROPERTY

6.1. For the purpose of this clause, “Intellectual Property Rights” means all and any of the rights in and to intellectual property of any nature whatsoever owned and/or controlled directly or under licence by Whizzoh, now or in the future, including without limitation, Whizzoh’s rights, title and interest in and to all technology, source code/s, trade secrets, logos, systems, methods, trademarks, trade names, styles, insignia, designs, patents and copyright, and all similar proprietary rights which may subsist in any part of the world, whether registered or not.

6.2. All copyright and other intellectual property rights in all content, trademarks, software, data, material, including logos, databases, text, graphics, icons, hyperlinks, confidential information, designs, agreements, and multimedia works, published on or via the Whizzoh App, including the Content (“proprietary material”), are the property of, or are licensed to, Whizzoh and as such are protected from infringement by local and international legislation and treaties.

6.3. By submitting reviews, comments and/or any other content (other than personal information) to Whizzoh for posting on the Whizzoh App, the User automatically grants Whizzoh and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable right and licence to use, reproduce, publish, translate, sub-license, copy and distribute such content in whole or in part worldwide, and to incorporate it in other works in any form, media, or technology now known or hereinafter developed, for the full term of any copyright that may exist in such content. Subject to this licence, the User retains any and all rights that may exist in such content.

6.4. All rights not expressly granted are reserved and no right, title or interest in any proprietary material or information contained in the Whizzoh Apps is granted to the User.

6.5. Irrespective of the existence of copyright, the User acknowledges that Whizzoh is the proprietor of all material on the Whizzoh App (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that the User has no right, title or interest in any such material.

7. THIRD PARTIES

7.1. The User acknowledges that Whizzoh is not the service provider of the emergency home assistance services (“the SP Services”) and the SP Services are provided by SP’s who are independent third parties and who are not employed by or are agents of Whizzoh.

7.2. Accredited SP’s have been accredited by Assist247 on behalf of Whizzoh by way of an independent audit by industry experts. Accreditation means that the SP appears to comply with the minimum regulations and qualifications necessary to provide the relevant SP Service competently and professionally (“Accreditation”).

7.3. Notwithstanding Accreditation, access to the SP’s via the Whizzoh App is for convenience and facilitation purposes only and Whizzoh does not endorse the SP’s or their practices and operations.

7.4. While Whizzoh endeavours to provide access only to reputable service providers, Whizzoh does not accept responsibility or liability for the SP Services to be provided by the SP’s.

7.5. The User agrees that Whizzoh shall not be held liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of any dealings with, instructions to, or presence of SP’s. Any dealings that the User may have with any SP’s, are at the User’s own risk and solely between the User and the SP.

7.6. Whizzoh may display or use information of third parties on the Whizzoh App. Whizzoh has no control over this information and makes no representations or warranties of any nature as to its accuracy, appropriateness or correctness. The User agrees that such information is provided “as is” and that Whizzoh shall not be liable for any losses or damages that may arise from the User’s reliance on it, howsoever these may arise.

8. LIMITATION OF LIABILITY

8.1. The User’s use of the Whizzoh App, the Whizzoh Services, the SP Services, the Content and any other information contained on the Whizzoh App is entirely at the User’s own risk and the User assumes full responsibility and risk of loss resulting from the use thereof.

8.2. Whizzoh makes no representations or warranties, whether express or implied, as to the accuracy, completeness or reliability of any information, data and/or content on the Whizzoh App, including without limitation:

8.2.1. Whizzoh does not warrant that the Whizzoh Services, the Whizzoh App, or information or downloads or services provided in terms thereof shall be error-free or that they shall meet any particular criteria of performance or quality. Whizzoh expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fit-ness for a particular purpose, non-infringement, compatibility, security and accuracy.

8.2.2. Whilst Whizzoh has taken reasonable measures to ensure the integrity of the Whizzoh Apps and its contents, no warranty, whether express or implied, is given that any files, downloads or applications available via the Whizzoh Apps are free of viruses, or any other data or code which has the ability to corrupt, damage or affect the operation of the User’s system; and

8.2.3. Whizzoh disclaims any responsibility for the verification of any claims. Information published on the Whizzoh App may be done so in the format in which Whizzoh receives it and statements from third parties are accepted as fact.

8.3. Whizzoh will make every effort to facilitate the SP Services to the User through the SP’s, however the service is a ‘Best Effort’ service, and Whizzoh does not provide any guarantee or undertaking whatsoever as to the timeous performance of the accepted SP, and/or the quality of the service and work performed.

8.4. The Whizzoh App and Whizzoh Service relies on the GPS of both the User’s as well as the SP’s mobile devices to assist in locating the User’s address and the SP’s location. Whizzoh cannot be held responsible for the failure of the GPS on any of these devices and can provide no guarantees with regard to the accuracy of GPS as provided by the mobile device.

8.5. The transmission of information via the internet, including without limitation e-mail and via the Whizzoh App, is susceptible to monitoring and interception. The User bears all risk of transmitting information in this manner. Under no circumstances shall Whizzoh be liable for any loss, harm, or damage suffered by the User as a result thereof. Whizzoh reserves the right to request independent verification of any information transmitted via e-mail or via the Whizzoh App and the User consents to such verification should Whizzoh deem it necessary.

8.6. To the extent permissible by law:

8.6.1. Neither Whizzoh, its affiliates, shareholders, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to the use of, or the inability to access or use the content of the Whizzoh App or any functionality thereof, or the information contained on the Whizzoh App, even if Whizzoh knows or should reasonably have known or is expressly advised thereof.

8.6.2. The liability of Whizzoh for faulty execution of the Whizzoh App as well as all damages suffered by the User, whether direct or indirect, as a result of the malfunctioning of the Whizzoh App shall be limited to Whizzoh rectifying the malfunction, within a reasonable time and free of charge, provided that Whizzoh is notified immediately of the damage or faulty execution of the Whizzoh App. This liability shall fall away and be expressly excluded if the User attempts to correct or allows third parties to correct or attempt to correct the Whizzoh App without the prior written approval of Whizzoh. In no event shall Whizzoh be liable to the User for loss of profits or for special, incidental, consequential or punitive losses or damages arising out of or in connection with the Whizzoh App or its use or the delivery, installation, servicing, performance or use of it in combination with other service.

8.6.3. The User hereby unconditionally and irrevocably indemnifies Whizzoh and agrees to hold Whizzoh free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by Whizzoh or instituted against Whizzoh as a direct or indirect result of:

8.6.3.1. use of the Whizzoh App by the User;

8.6.3.2. modification of the Whizzoh App without the consent or knowledge of Whizzoh;

8.6.3.3. failure by the User to comply with any of the terms or any other requirements which Whizzoh may impose from time to time;

8.6.3.4. the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or

8.6.3.5. any unavailability of, or interruption in, the service which is beyond the control of Whizzoh.

9. PRIVACY

9.1. Whizzoh takes the User’s privacy seriously and is committed to protecting the User’s personal information. Whizzoh uses the personal information that collected from the User in accordance with this clause 9.

9.2. Personal Information when used in this clause 9 means information that can identify the User as an individual or is capable of identifying the User. By personal information, Whizzoh does not mean general, statistical, aggregated or anonymised information.

9.3. The User’s use of the Whizzoh Services and the Whizzoh App signifies the User’s consent to Whizzoh collecting and using the User’s personal information as specified below.

9.4. Personal Information is collected through the registration of an Account and as a result of communications between the User and Whizzoh.

9.5. Personal Information is used: to provide the User with a list of the appropriate SP’s; to confirm that the Whizzoh Services and SP Services have been delivered; to invite the User to provide a rating and comments on the SP and SP Services; to validate the User as a customer when using the Whizzoh App; when providing help desk support to the User; to prevent and detect criminal activity, fraud and misuse of or damage to the Whizzoh App, Whizzoh Services or networks and to prosecute those responsible; and to contact the User for marketing purposes. The User is entitled to opt-out of marketing communication.

9.6. The time periods for which Whizzoh keeps the User’s Personal Information may vary according to the use or purpose attached to the information. Unless there is a specific legal requirement requiring Whizzoh to keep the Personal Information, Whizzoh will not keep it for longer than necessary for the purpose for which the information was collected or for which it is to be processed.

9.7. Whizzoh will provide certain of the User’s personal information, such as the User’s name, contact telephone number and physical address, to the nominated Whizzoh SP so that the Whizzoh SP may provide the SP Service.

10. SECURITY

10.1. In order to ensure the security and reliable operation of the Whizzoh App and Services to all Whizzoh’s users, Whizzoh hereby reserves the right to take whatever action it may deem necessary to preserve the security, integrity and reliability of its network and back-office applications.

10.2. The User may not utilise the Whizzoh App in any manner which may compromise the security of Whizzoh’s networks or tamper with the Whizzoh App in any manner whatsoever, which shall include without limitation, gaining or attempting to gain unauthorised access to the Whizzoh App, or delivering or attempting to deliver any unauthorised, damaging or malicious code to the Whizzoh App, all of which is expressly prohibited. Any person or entity which does so, or attempts to do so, shall be held criminally liable. Further, should Whizzoh suffer any damage or loss, civil damages shall be claimed by Whizzoh against the User.

10.3. Any User who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) (specifically sections 85 to 88 (inclusive)) shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by Whizzoh and its affiliates, agents and/or partners.

11. COMPLIANCE WITH SECTION 43(1) OF ECTA

11.1. In compliance with section 43(1) of the Electronic Communications and Transactions Act 25 of 2002, the following is noted in respect of Whizzoh:

11.1.1. Full name: Whizzoh (Proprietary) Limited

11.1.2. Registration number: 2014/144875/07

11.1.3. Physical address: 306 Northcliff Atrium, 189 Beyers Naude Drive, Northclidd, Gauteng, 2195

11.1.4. Fax number: 0865376238

11.1.5. Telephone number: 0861WHIZZOH

11.1.6. Website address: www.whizzoh.co.za

11.1.7. E-mail address: customerservices@whizzoh.co.za

11.1.8. Names of office bearers: Paul Zietsman Meyer, Johan Andries Stander, Heinrich Gerard Venter, and Leon Vermaak.

11.1.9. Registered at: The Companies and Intellectual Property Commission

11.2. The disclosures by each SP in terms of section 43(1) of the Electronic Communications and Transactions Act 25 of 2002 are available on the Assist247 Website (www.assist247.co.za).

12. COMPLAINTS AND DISPUTES

12.1. By accepting these Terms, the User agrees and subscribes to the current version of the Whizzoh Dispute Resolution Policy, which is available on the Whizzoh website.

12.2. If the User is not satisfied with the delivery of the SP Service, the User has the right to lodge a complaint through the Whizzoh User App or by email to customerservices@whizzoh.co.za.

12.3. If the SP is not satisfied with the conduct of the User, the SP has the right to lodge a complaint through the Whizzoh SP App or by email to customerservices@whizzoh.co.za.

12.4. In the event a complaint is lodged by the User before the expiry of 3 (THREE) Business Days after payment by the User, and within Whizzoh’s sole discretion, payment to the SP will be suspended pending resolution of any complaint.

12.5. The Whizzoh Dispute Resolution Policy does not exclude or restrict any rights of the User or SP exercisable against the other in terms of the CPA and ECTA.

13. SUSPENSION AND TERMINATION

13.1. Whizzoh is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny the User use of the Whizzoh App and Services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to Whizzoh’s right to claim damages, should any User:

13.1.1. breach any of these Terms;

13.1.2. in the sole discretion of Whizzoh, use the Whizzoh App in an unauthorised manner; or

13.1.3. infringe any statute, regulation, ordinance or law.

13.2. Breach of these Terms entitles Whizzoh to take legal action without prior notice to the User and the User agrees to reimburse the costs associated with such legal action to Whizzoh on an attorney and own client scale.

14. NOTICES

14.1. Except as explicitly stated otherwise, any notices shall be given by email to [TBC] (in the case of Whizzoh) or to the e-mail address the User has provided to Whizzoh (in the User’s case), or such other address that has been specified.

14.2. Notice shall be deemed given 48 (forty eight) hours after an email is sent, unless the sending party is notified that the email address is invalid.

14.3. Alternatively, Whizzoh may give the User notice by registered mail, postage prepaid and return receipt requested, to the address which the User has provided to Whizzoh. In such case, notice shall be deemed given 7 (seven) days after the date of mailing.

14.4. The User acknowledges that all agreements, notices or other communication required to be given in terms of the law or these Terms may be given via electronic means and that such communications shall be “in writing”. Notwithstanding anything to the contrary, 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 address(es) for that purpose.

15. GENERAL

15.1. These Terms shall be governed in all respects by the laws of the Republic of South Africa as such laws are applied to agreements entered into and to be performed within South Africa, including the ECTA and the CPA where such Acts find application.

15.2. The Whizzoh App is controlled, operated and administered by Whizzoh from its offices within the Republic of South Africa. Whizzoh makes no representation that the content of the Whizzoh App is appropriate or available for use outside of South Africa. Access to the Whizzoh App from territories or countries where the content of the Whizzoh App is illegal is prohibited. Users may not use the Whizzoh App in violation of South African export laws and regulations. If the User accesses the Whizzoh App from locations outside of South Africa, that User is responsible for compliance with all local laws.

15.3. Whizzoh does not guarantee continuous, uninterrupted or secure access to the Whizzoh App or Services, as operation of the Whizzoh App may be interfered with as a result of a number of factors which are outside of Whizzoh’s control.

15.4. If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and the remaining provisions shall be enforced to the full extent of the law.

15.5. Whizzoh’s failure to act with respect to a breach by the User or others does not constitute a waiver of Whizzoh’s right to act with respect to subsequent or similar breaches.

15.6. The User shall not be entitled to cede its rights or assign its rights or delegate its obligations in terms of these Terms to any third party without the prior written consent of Whizzoh.

15.7. Whizzoh shall be entitled to cede its rights or assign its rights or delegate its obligations in terms of these Terms to any third party without the prior written consent of the User.

15.8. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.

15.9. The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.

15.10. Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include females and words importing persons shall include partnerships and corporate and unincorporated entities.

15.11. These Terms set forth the entire understanding and agreement between Whizzoh and the User with respect to the subject matter hereof.