General Service Terms

These client general terms of service (“General Terms”) apply to the provision of all services provided by Afeleton Limited trading as Howler or Nutickets, registration number 2009/016028/07 (“Company”, “Howler”, “Nutickets”, “we”, “us” or “our”) to the receivers of the services (“Clients”, “you” or “your” as the context may require) from time to time (the “Services”).

Before you register to become a Client, you must read, agree with, and accept all of the terms and conditions contained in these General Terms, read with the individual service terms applicable to the Services you wish to register for (“Service Terms”), our Privacy Policy and our Website Terms accessible at www.howler.co.za (“Website”).

These General Terms, the relevant Service Terms, our Privacy Policy and Website Terms and conditions and any provisions set out in the relevant application form (whether in hardcopy or electronic format) you are required to complete (“Application Form”) constitutes a legal contract (the “Agreement”) between you and us.

You must read these General Terms carefully. The General Terms apply to all our Services and it is an important document which you must read and understand when choosing whether to register to use any of our Services. We strongly recommend that, as you read these General Terms, you also access and read the information that is contained in the other documents, policies or websites which are referred to in these General Terms and incorporated into these General Terms by reference or by hyperlinks, as they may contain further terms and conditions that apply to you as a Client.

You should pay special attention to the parts in bold as they have especially important consequences for you.

The headings and subheadings in these General Terms are for reference only and do not limit the scope of each section. Underlined words in these General Terms as they appear on our Website are hyperlinks to connecting you to the relevant information.

You should print or save a copy of these General Terms, the Service Terms and the Application Form for your future reference.

The legal relationship between you and the company
1. Who are we? We are a South African event focused services company with registration number 2009/016028/07 trading as “Howler” and “Nutickets”.
2. Purpose of these General Terms: These General Terms govern the relationship between us and each registered Client, regardless of the individual Service the Client has subscribed for.
3. Purpose of Service Terms: In addition to these General Terms, each Service we offer to you is subject to its own set of Service Terms, which are specific to such Service. Your use of a Service will be governed by the Service Terms applicable to such Service. Any Service Terms which are relevant to the Services subscribed for are legally binding on you.
4. Legally Binding Contract: The Agreement will become a legally binding contract between you and us once we confirm that your application has been successfully completed and we accept your offer to enter into the Agreement with us for the supply of our Services. By completing the application process, and submitting your completed Application Form electronically, by paper copy or completing our online registration process, you are regarded as having read and agreed to all the terms of these General Terms, the relevant Service Terms, our Privacy Policy and our Website Terms, including the parts in bold. If you do not agree to be bound by the terms and conditions of these General Terms, our Privacy Policy, Website Terms or relevant Service Terms, you should not subscribe for our Services.
Supply of services
1. We will use all reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services, save that were applicable, we will be required to perform all Services required to be performed by the Long Stop Date by such date.
2. We warrant that we have all necessary capacity and qualifications to supply the Services.
3. Where applicable, the Services shall be provided to you at the Service Address between the Relevant Dates as set out in your Application Form.
Application and eligibility
1. In order to access any of the Services, you must apply for a client account from us (“Client Account”) by completing our Application Form.
2. You are only eligible to open a Client Account:
  1. if you are an individual resident in the Republic of South Africa, who is at least 18 years old and has the legal capacity to conclude legally binding contracts; or
  2. if you are a juristic person (like a company or a corporation) (“Legal Entity”), the individual applying for the Client Account on the Legal Entity’s behalf must (i) be at least 18 years old, (ii) a resident in South Africa with have the legal capacity to conclude legally binding contracts, and (iii) be duly authorised to conclude contracts on the Legal Entity’s behalf (for example, a director). The Legal Entity must be duly incorporated, validly existing and in good standing under the laws of the Republic of South Africa.
3. It is important that you understand that you are not automatically entitled to a Client Account or the use of our Services. Your application for a Client Account and the use of our Services is an offer to us by you to enter in an agreement with us for the supply of our Services. This means that we are not obliged to accept your application and we reserve the right, acting reasonably, to (i) refuse to provide you with a Client Account or (ii) deny you access to certain Services available to you. By way of example only, we may refuse to provide you with a Client Account if you have previously been suspended from one or more of our Services or if you pose an unacceptable level of risk for us.
4. You may only hold one Client Account, unless we agree otherwise in writing.
5. Beneficial ownership of your Client Account by a third party is not permitted. This means that you may not act as an agent for another person or open a Client Account for another person.
Your obligations
1. In addition to and without limiting any obligations contained elsewhere in this Agreement (including the Privacy Policy, Website Terms and the Service Terms), you agree to use the Services solely for the purposes as set out in this Agreement (including the Privacy Policy, Website Terms and the Service Terms) and to manage your Client Account in accordance with the terms and conditions of the Agreement and all applicable laws, regulations and ordinances (“Applicable Laws”).
2. You agree to;
  1. ensure that all information you provided are complete and accurate;
  2. co-operate with us in all matters relating to the Services;
  3. provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
  4. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
  5. when applicable, provide us, our employees, agents, consultants and subcontractors, with access to the Service Address and prepare the Service Address for the supply of the Services;
  6. keep and maintain all materials, equipment belonging to and provided by us (“Company Materials”) at the Service Address in safe custody at your own risk, maintain the Company Materials in good condition until returned to us, and not dispose of or use the Company Materials other than in accordance with our written instructions or authorisation.
  7. You agree to unconditionally accept, honour, and fulfil all service commitments that have been confirmed by us through the Service Terms, and it is your responsibility to verify the Payers membership status, confirmation number and/or any event restrictions prior to the subject event.
3. You will not use any of the Services
  1. for any unlawful activity and it is your responsibility to ensure that you comply with the Card Payment Processing Rules am may be applicable to you;
  2. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
  3. harm minors in any way;
  4. impersonate any person or entity, Including, but not limited to, a Howler representative or falsely state or otherwise misrepresent your association with a person or entity;
  5. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  6. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity;
  7. upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Software in a manner not permitted by these Terms and Conditions or expressly authorized by us;
  8. interfere with or disrupt the Software or servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Software.
4. You shall conduct your business, and carry on all related or ancillary activities with the highest ethical standards. You shall not do business with any person which involves bribes, payoffs, payments (or offers thereof) by way of inducement or reward (whether to do any act or to refrain from doing any act or to show favour or disfavour or otherwise) or any other similar improper or unethical practices.
5. You have not and will not, in connection with the activities contemplated by this Agreement, make any payment or transfer of value which has the purpose or effect of (a) public or commercial bribery; (b) acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business; or (c) otherwise obtaining an improper advantage for us or its affiliates. We reserve the right to immediately terminate this Agreement in the event that you fail or you are suspected to have failed to comply with the provisions of this clause 4.
6. If your performance of any of its obligations under this Agreement (including the Privacy Policy, Website Terms and the Service Terms) is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Client Default”):
  1. We will without limiting its other rights or remedies have the right to suspend performance of the affected Services until you remedy the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays our performance of any of its obligations;
  2. We will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause 4; and
  3. you will reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Client Default.
Commencement and duration of services
1. Unless terminated earlier in accordance with the provisions of clause 14, these General Terms will continue until the last remaining Service terminates or expires in accordance with the provisions of the applicable Service Terms or these General Terms.
2. Our engagement in respect of each of the Services you have registered for shall commence on the Service commencement date applicable to the relevant Services. You agree and understand that whilst you may be able to indicate the desired Service commencement date in the Application Form, such dates are estimates only and depend on the Service specific requirements to be met by you.
3. If we provide more than one Service to you, unless otherwise stated in these General Terms or the relevant Service Terms, the terms of any one Service do not apply to any other Service and each Service shall be capable of termination in accordance with the provisions of clause 14, or the specific provisions relating to termination as contained in the relevant Services Terms, without affecting the remaining Services.
Branding and marketing
1. Unless we agree otherwise in writing, all Services provided by us shall bear approved Company trade marks (including word marks, logos, slogans and domain names) owned or ordinarily used by us (whether registered or not) (“Company Trade Marks”).
2. Any use of Company’s Trade Marks must be strictly in line with our branding specifications, standards and reasonable directions that we provide to you in our Branding Document (or we provide to you from time to time). You shall not do anything, or cause anything to be done, that may prejudice the reputation and integrity of Company’s Trade Marks.
3. We may also, subject to your prior approval indicated on the Application Form or otherwise, use your trade marks (including word marks, logos, slogans) (“Client Marks”) for advertising and awareness purposes such as on our Website or when we are promoting events, offers and new products, features or services. The use of Client Marks will be in line with your branding specifications, standards and reasonable directions you provide to us and we will not do anything, or cause anything to be done, that may prejudice the reputation and integrity of the Client Marks. You are required to provide us with your branding specifications, standards and directions before activation of any of our Services or upon our written request and your approval shall not be unreasonably withheld or unduly delayed.
4. To the extent required, each of Company and the Client grants to the other a non-exclusive licence to use the other's Company Trade Marks and the Client Marks (as the case may be) for the purposes described in these General Terms and for no other purpose.
Collection and processing of information
1. You acknowledge and agree that if you or your users contribute, provide or make available any content to the Site, (“Your Information”) as a Client, you hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit Your Information, in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever, and to allow others to do so, without compensation to you or any other provider of Your Information.
2. You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Information does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, and complies with all applicable laws and regulations. In addition, events must be accurately and truthfully described when Events Organiser submits event information to the Site. If we determine, in our sole discretion, that you have misrepresented an event or otherwise does not comply with this Agreement, we will have the right to cancel the relevant event (and all other events listed on the Site). We reserve the right to remove any of Your Information from the Site at any time for any reason (Including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to Your Information) or no reason. In addition, you agree that we may use your name and logo (whether or not you have made it available through the Site) for the purpose of identifying you as an existing or past customer of us both on the Site and in marketing and promotional materials.
3. You acknowledge that we not pre-screen any Content provided or made available by you or any third party in connection with the Service, but that we have the right (but not the obligation) in our sole discretion to (i) monitor, alter, edit, or remove any of Your Information, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that we may preserve Your Information and may also disclose Your Information for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any of Your Information violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of us, its users and/or the public. You understand that the technical processing and transmission of the Services, Including Your Information, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
4. We will collect, process, transfer, collate, organise, update, store and distribute (“Process”) Your Information in accordance with these General Terms and our Privacy Policy. For the purposes of these General Terms, “Processing” and “Processed” shall have a corresponding meaning.
5. By disclosing or submitting Your Information to us you consent to us Processing Your Information for the purposes described in these General Terms, applied Service Terms and our Privacy Policy. You are responsible for ensuring that your users (including Payers) when providing us with any information, have provided prior consent to us Processing their information.
6. You are responsible for the accuracy of Your Information and that Your Information is correct. We are not responsible for checking the accuracy of any aspect of any Your Information, files or records you provide to us and we will not be liable (legally responsible) for any payment related errors made resulting from errors or incorrect information in your files or records.
7. Should Your Information change, please inform us and provide us with updates to Your Information as soon as reasonably possible to enable us to update Your Information.
8. You authorise us, directly or through our authorised third parties, to make any inquiries we consider necessary to validate your identity and registration. This may include requiring you to provide us with faxed or scanned documentation such as a government issued identification card, ordering a credit report and performing other credit checks or verifying Your Information provide against third party databases. However, because user verification on the Internet is difficult, we cannot and do not guarantee any Client’s or Payer's identity. You understand and agree that we may engage carefully selected third parties, such as credit reporting agencies or identity verification companies to review your credit report to assess your eligibility to hold a Client Account and your ability to use the Services or associated features.
9. You are solely responsible for securing all data in your possession or under your control.
Security and risks
1. Your Security Obligations
  1. Username and Password: As a registered Client, you will be required to select a unique username and password which you have to use in order to sign into your Client Account made accessible on our Website. If you are a Legal Entity, you may also have to designate a specific number of users of your Client Account. It is your responsibility to keep your username and password secret and secure at all times. You will not disclose your username and password to any other persons, or enable any other persons to otherwise access your Client Account. If you are a Legal Entity, you must further ensure that the persons authorised by you to access your Client Account do so within the scope of their authority and do not disclose your username and password to any unauthorised person or enable any unauthorised person to otherwise access your Client Account.
  2. Fraudulent or Irregular Activities: Should you believe that your username or password has become compromised, someone has accessed your Client Account without your authority or you suspect any security breach, phishing attack, misuse, irregularity, fraudulent transaction, or any other suspicious activity that may be connected with attempts to commit fraud or other illegal activities through the use of your website or application you must contact us immediately. You agree to co-operate fully with us to investigate any suspected unlawful, fraudulent or suspicious activities.
  3. Phishing: Please be aware of ‘phishing’ attacks where criminals attempt to obtain Your Information by sending you an email, masquerading as an email from us, asking you to access your account or verify information via links in the email, or diverting you to a fake Company website. It is important to remember that we will never ask you to confirm your password, username or other sensitive information by clicking on any links in an email.
2. Our Security Obligations
  1. We secure the integrity and confidentiality of Your Information and transactional information with reference to appropriate, reasonably accepted technological and organisational standards acceptable at the time of the transaction and the type of the transaction concerned.
  2. All Your Information is in our secure environment. We are not responsible and/or liable for any of Your Information stored and/or processed outside of our environment.
3. We reserve the right to take any actions as may regarded as necessary at any time to preserve the security and reliable operation of our network infrastructure and you undertake that you will not do or permit anything to be done which will compromise our security.
4. If we are unable to verify or authenticate any of Your Information, reasonably believe that your activities pose a significant credit or fraud risk to us or our other Clients, or may cause financial loss or legal liability for us, our other Clients, or you, or your use of your Client Account is regarded as abuse of the credit card system or a violation of Card Payment Processing Rules by the Company or any Payment Schemes, then we may be entitled to take any one or more of the steps listed in clauses 14.1 or 14.3 as are reasonable and appropriate under the circumstances.
Fees and charges
1. Fees and Charges: The fees, charges and service terms are described in the relevant Application Form or as per our website and /or the corresponding Service Terms (the “Service Fees”). Upon submission of your Application Form (and thus your acceptance of the relevant Service Terms and these General Terms), you will be regarded as having agreed to the then current Service Fees for the Services for which you have contracted. It is your responsibility to familiarise yourself with the Service Fees and the date of payment of the Service Fees applicable to the Services you have subscribed for.
2. Due Dates: The Service Fees payment due dates are as follows:
  1. where a monthly Service Fee is charged and your use of the Service commences at any time other than the first day of a calendar month, you will be charged on a pro rata basis (in proportion to) for the Service provided during that month; or
  2. where you require additional services not agreed specified in the Service Terms, we may charge you additional service fees on a times and materials basis at our then current standard rates subject to prior agreement between us and you; or
  3. any reasonable additional sums which, in our sole discretion, are required as a result of any additional or amended instructions or lack of instructions from you, the inaccuracy or inappropriateness of any material provided by you or any other cause attributable to you.
3. We may require payment to be made in advance, in instalments and/or on completion of the Services if so agreed with you. We will invoice you in line with the Due Dates. The Client shall pay each invoice submitted by us:
  1. immediately on receipt of an invoice; and
  2. in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence of this Agreement.
4. Service Fee Changes: We reserve the right to amend or vary the Service Fees and charges from time to time on 30 (thirty) days prior written notice to you, by posting the revised Service Fees on the “Notices” section of the Website. When we notify you of any adjustments to the Service Fees which affect a Service, you are entitled to terminate the relevant Service on written notice to us prior to the date in which the adjustments come into effect. If you do not terminate the relevant Service after the adjustments come into effect, the adjustments apply to you from the date they come into effect.
5. Taxes: Unless otherwise stated, Service Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with the Services. If we have the legal obligation to pay or collect Taxes for which you are responsible the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. We remain solely responsible for taxes assessable against it based on our income, property and employees.
6. No Set-off or Deductions: You are not entitled to withhold any payment of any Service Fees due to us by reason of any alleged breach of the General Terms or Service Terms by the Company or for any other reason whatsoever. In addition, you may not apply set-off to or demand any discount, rebate or reduction in respect of any Service Fees owed to us.
7. Payment Defaults: Should you fail to pay any amount to the Company on the due date for payment, then we may, without prejudice to any of its other rights in law or under the Agreement:
  1. charge interest at the prime rate published by our bankers from time to time on the overdue amount, calculated from the due date until the date of payment (both dates inclusive), which interest, if charged, will be capitalised monthly; and/or
  2. take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation using external debt collection agencies or attorneys; and/or
  3. recover from you any additional expenditure incurred by us relating to the tracing and/or collection of unpaid amounts, which costs shall be for your account; and/or
  4. inform any credit bureau of your payment default; and/or
  5. suspend our Service(s) and your access to your Client Account as described in clause 14.3.1.4.
8. Payment Queries or Disputes: You may direct any billing or account queries to us at finance@howler.co.za. A certificate signed by either the General Manager or Financial Manager of the Company, whose appointment, qualification and authority need not be proved, shall be prima facie proof of the amount in Service Fees due and payable by you at any time. In the event of any dispute arising between us regarding the determination of the amounts owing by you under any invoice presented to you by us. If we are unable to resolve within 14 (fourteen) days of the dispute arising, the dispute will be addressed in accordance with provisions of clause 19. You will pay the undisputed amount of such invoices in accordance with the Agreement.
Intellectual property rights
1. All the content, trademarks, data, information or information contained in any materials or documents (“Documentation”) or used in relation to the Services, including but not limited to any and all copyrighted works, software, databases, text, graphics, icons, designs, hyperlinks, domain names, information and agreements (“Content”), are the property of or licensed to us and as such are protected from copying and infringement by local and international legislation and treaties. The Content may not be reproduced, distributed or copied by any means, whether electronically or not, without our prior written permission.
2. Any and all intellectual property rights subsisting in the Documentation (including Integration Documents), Content, Services and their underlying software (“Software”), these General Terms and in the Service Terms, or otherwise developed by or on behalf of the Company, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (“Intellectual Property Rights”), vests in the Company, its licensors or suppliers, as the case may be, and all rights not expressly granted are reserved.
3. Although we grant you, for the duration of the Service, a limited, non-exclusive, non-transferable right and licence to use the Service and its underlying Software in accordance with the provisions of the Agreement, you acknowledge that you have no claim of any nature in and to the Intellectual Property Rights. You accordingly agree not to copy, duplicate, reproduce, transmit, modify, reverse engineer, decompile, or disassemble the Service, including the Software and/or Integration Documents, any user manuals and/or any printed material associated with the Service or any portion thereof in any way whatsoever and shall only use it for the purpose it is supplied.
4. You will not at any time during or after termination or cancellation of the Agreement dispute the validity or enforceability of such rights, or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of any of the Intellectual Property Rights and shall not counsel or assist any other person to do so.
5. You may not use or alter any trademarks, trade or business names, designs or logos forming part of the Intellectual Property Rights, including our Company Trade Marks or do (or fail to do) anything that could adversely affect our rights in the Company Trade Marks or their value and you agree to fully reimburse us for any loss or damage that we suffer as a result of any use by you of our Company Trade Marks which is not in accordance with the Agreement.
6. Solely to enable us to use Your Information as contemplated by the Agreement and our Privacy Policy (so that we are not violating any rights you might have in Your Information), you hereby grant us a non- exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known. We will use and protect Your Information in accordance with our Privacy Policy.
7. You are obliged to comply with all laws applicable to any intellectual property rights (including without limitation trade secrets, copyright, trademarks, registered designs and patents) in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of the Services.
8. If, while the Agreement is in force, you make any improvement to any aspect of our Intellectual Property Rights (“Improvement”), you will promptly inform us thereof in writing and will assign all rights in such Improvement to us and will assist us to obtain patent, design, copyright and all similar forms of protection for such Improvement at our expense wherever we may choose to obtain such protection. All intellectual property rights in respect of such Improvement will be deemed to be included in the Intellectual Property Rights in terms of the Agreement.
9. You shall comply with any and all relevant Payment Scheme Rules relating to the trademarks, data, logos, images, copyrighted materials or any other protected intellectual property of such Payment Scheme.
Confidentiality
1. You may obtain software and other information relating to the Services which is confidential and proprietary to the Company (“Proprietary Information”). Such Proprietary Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, and data. You will at all times, including following termination of this Agreement, keep all such Proprietary Information in confidence and will not disclose or use such Proprietary Information other than as expressly authorized under this Agreement, nor will you disclose the Proprietary Information to third parties without prior written consent. You further agree to immediately return to us or destroy and confirm in writing that you have destroyed all Proprietary Information (including copies) in your possession, custody or control upon termination of this Agreement at any time and for any reason.
2. The obligations of confidentiality in this clause 11 will not apply to the extent that information (i) has entered the public domain through no fault of your own; (ii) prior to disclosure was already rightfully in your possession; (iii) subsequent to disclosure is obtained by you on a non-confidential basis from a third party who has the right to disclose such information; (iv) is subsequently or independently developed by you without reference to the Proprietary Information disclosed hereunder; or (v) is required to be disclosed by law or any regulatory authority with jurisdiction or pursuant to a court order, so long as (if this is possible in the circumstances) you give us adequate notice and the ability to challenge or limit such disclosure. You will not make any announcement, provide any press release, use Company’s Trade Marks or otherwise disclose any information to the press or other media concerning our services, Software or the terms of this Agreement without the prior written approval from us, except for any release necessitated by the rules of any stock exchange or any other regulatory authority with jurisdiction.
Disclaimer and limitation of liabilities
1. Whilst we take all reasonable steps within our control to make each of our Service(s) available to you on a consistent and continuous basis, we cannot always guarantee or warrant fault free Services.
2. As far as the law allows, we offer our Services “as is” and on an “as available” basis without warranties or implied by statute, common law or otherwise (including satisfactory quality and fitness for purpose). You understand and agree that we do not guarantee or that:
  1. the Service(s) are of satisfactory quality, accurate, fit for your particular purposes or needs;
  2. the Service(s) will operate error-free;
  3. the Service(s) are accessible (either directly or through third-party networks) at all times or locations of your choosing, including that the connection between your computer, system, terminal or other electronic devices and the acquiring bank will be 100% uninterrupted; or
  4. the time it will take to complete a transaction will remain consistent because the Services are largely dependent upon many factors beyond our reasonable control, including (but not limited to) delays by the banks and its facilities.
3. LIMITATION OF LIABILITY
  As far as the law allows and subject to clause 12.7, in no event will you or us be liable for:
  1. financial or similar loss of any kind, including, for example, loss of profits, business, estimated savings, chargeable time or goodwill; or
  2. any interruption to your business (including interruption to Services) or loss of or damage to information;
  3. loss or damage suffered by you which we could not have reasonably known about at the time you entered into the Agreement; and
  4. losses you suffer as a result of using any of the Services other than as described in the relevant documents or as otherwise described in our Service Terms.
4. You acknowledge that the allocation of risk and responsibility as set out in the Agreement is reasonable because it accords with:
  1. Our inability to control how, and for what purposes, you use the Services;
  2. We not having developed any of the Services specifically for you;
  3. the fact that, while we follow good industry practice, it is not economically feasible for us to exhaustively test any software that supports the Services; and
  4. the Service Fees, if any, paid by you for the Services.
5. As far as the law allows, and subject to clause 12.7, our maximum aggregate liability under, or in connection to this Agreement, for each and every claim arising out of the same cause or source, shall not exceed the Service Fees paid by you in respect of such Service(s) during the 12 (twelve) month period in which the cause of action arose (the first such 12 (twelve) month period in respect of the Services in question to commence on the Service commencement date as specified in the Service Terms).
6. As far as the law allows, under no circumstances whatsoever will we or any of our affiliates, subsidiaries, agents, suppliers and/or subcontractors, whether in contract, delict, under statute or otherwise (including in each case negligence) for any special, indirect or consequential loss or damage whatsoever (and any loss of use, revenues, profits or savings not recoverable at law) arising under or in relation to the Agreement or any part of it whether or not you were advised in advance of the possibility of such loss or damage. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, and so in such jurisdictions liability is limited as far as the law allows.
7. Nothing in this Agreement will prevent or limit your, or our, liability:
  1. for fraudulent or wilful misconduct; or
  2. for death or personal injury arising out of its negligence;
  3. gross negligence; or
  4. for any matters, which such liability cannot be lawfully excluded or limited.
Indemnity
1. As far as the law allows, you indemnify and hold harmless the Company, its parent, subsidiaries, affiliates, officers, directors and employees, against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys' fees) arising from your use of and access to Services, your violation of any term of Agreement (including the documents incorporated by reference), your violation of any third party right, including without limitation any copyright, trademark, trade secret or other property, or privacy right or any claim that Your Information caused damage to a third party.
2. This clause 13 will survive termination, modification or expiration of these General Terms and your use of the Services.
Termination and consequences of termination
1. The Contract shall continue until the End Date unless terminated earlier pursuant to this clause 14.
2. Termination by us
  1. Without limiting any other rights and remedies that we may have in law or under this Agreement, we may immediately terminate this Agreement (or an individual Service) in the event that you commit one or more of the following events of default:
    1. you breach (including non-payment of undisputed amounts due by you) any term or condition of this Agreement and you fail to remedy such breach within 10 (ten) business days of us notifying you of such breach;
    2. you do or allow any act or omission which adversely affects the operation of our Services, including our network infrastructure;
    3. you use our Service(s) unlawfully or for any illegal activities;
    4. you fail to comply with the Card Payment Processor Rules;
    5. you commit any act of insolvency in terms of the Insolvency Act, 1936 or, being a Legal Entity, commit an act which would be such an act of insolvency if committed by a natural person;
    6. you are declared bankrupt or take steps to place yourself, or are placed in provisional or final liquidation or judicial management or administration, or enter into or attempts to enter into any scheme similar to or in the nature of a composition, compromise or scheme of arrangement, release or novation with any or all of your creditors, or take steps to de-register yourself or are de-registered or you contemplate, consider, discuss or agree to any business rescue proceedings.
  2. You understand and agree that we may immediately terminate this Agreement in the event our licence to act as System Operator is revoked or terminated for any reason whatsoever.
3. Suspension of Services by us
  1. Our Services to you may be suspended and your access to the Client Account may be denied if:
    1. you breach any of the terms and conditions of this Agreement until such time as you have remedied the breach provided we have provided you notice of such breach;
    2. you use our Service(s) unlawfully;
    3. on our reasonable discretion, your use of the Service (s) is considered by us, our banks or Card Processors as unlawful or potentially unlawful;
    4. you do not pay all the amounts due to you on or before the due date for payment.
  2. We will notify you before we suspend one or more of our Services. If our Services are suspended, you may terminate the Service in accordance with the provisions of clause s 14.4.2 and 14.5.
  3. You will continue to be liable (legally responsible) for payment of your Service Fees during any suspension period and we reserve the right to charge you an additional re-activation fee should you request us to restore the Service.
4. Termination by the Client
  1. Without limiting any other rights and remedies you may have in law or under this Agreement, you may terminate this Agreement (or an individual Service) by written notice giving full details of the breach, in the event that we commit one or more of the following events of default:
    1. we commit a material breach any term or condition of this Agreement and we fail to remedy such breach within 28 (twenty eight) days of you notifying us of such breach;
    2. we commit any act of insolvency in terms of the Insolvency Act, 1936;
    3. we are declared bankrupt or we are liquidated.
  2. Notwithstanding the provisions of clause 5.1, you may terminate all of our Services on 30 (thirty) days prior written notice to us.
5. Termination of an individual Service for Convenience
  1. Notwithstanding the provisions of clause 5.1, either of us may terminate a Service on 30 (thirty) days prior written notice to the other unless stated otherwise in the applicable Service Terms. As stated in clause 5.3, the termination of one individual Service will not result in the termination of any other Services or these General Terms.
6. Consequences of Termination of a Service or the Agreement
  1. If a Service is terminated for any reason, you will responsible to pay all Service Fees payable by you up to the termination date.
  2. If a Service is terminated by us in terms of clause 14.2.1 or terminated by you in terms of clauses 14.4.2 or 14.5 you will be responsible to pay all Services Fees that we would have stood to earned from terminated Services for the period from the termination date till the Event End Date.
  3. If a Service is terminated for any reason, you shall immediately cease to access or use the Service, its underlying Software and related Documentation and you are required to either destroy or return to us (as we may direct) any copies of the Software and Documentation provided to you by us.
  4. You shall remove any reference to the Company or the Service, including the Company Trade Marks from all your promotional and corporate materials, including all your electronic communications and websites. To the extent that we display any of your Clients Marks, we shall remove any such reference to you from our Website or marketing materials.
  5. In the event that you are able to utilise the relevant Service following a termination, the terms and conditions of the Agreement will apply to you and you will be liable to pay the full usage fee to us.
  6. Termination of the Agreement shall be without prejudice to either party’s rights or obligations which arose prior to the termination date and in this regard, you shall be entitled to utilise the Service following a termination to the extent required in order to exercise such rights and fulfil such obligations. However, you acknowledge that such use of the Service after termination of the Agreement shall in no way constitute a revival or a novation of the Agreement and we will incur no liability of whatsoever nature to you or to any third party arising out of your continued use of the Service after termination of the Agreement. For example, as chargebacks may arise a considerable period after the date of the relevant transaction, we will remain entitled to recover chargebacks and associated costs from you in respect of all chargebacks, even after the termination of the contractual relationship between you and us.
  7. The expiration or termination of this Agreement shall not affect such of the provisions of the Agreement (be it in these General Terms or in the Service Terms) as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
Force majeure
1. Whilst we aim to provide uninterrupted Services, we cannot guarantee this as interruptions may be caused by factors beyond our reasonable control including, but not limited to an event of fire, lightning, explosion, electricity and utility services, flood, hurricane, act of God, war, terrorism, civil disorder, delivery failures, failure of communications networks and facilities, including the Internet, epidemics, plagues, strikes; boycotts, and lock-outs of all kinds and go-slows (excluding boycotts, strikes, lock-outs and go-slows by or of our own personnel) or any other event beyond our reasonable control (a “Force Majeure Event”).
2. If we are prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement or a Service in terms of the applicable Service Terms due to a Force Majeure Event, we shall be relieved of our obligations during the period that such event and its consequences continue but only to the extent so prevented and we shall not be liable for any delay or failure on the performance of any obligations hereunder or loss or damages, either general, special or consequential which the Clients may suffer due to or resulting from such delay or failure, provided always that we (i) shall give written notice to you of any such inability to perform or interruption to our Services and (ii) shall use reasonable endeavours to mitigate the effects and duration of the Force Majeure Event. We shall, upon termination of the Force Majeure Event, giving rise to such non-performance, give you written notice. We shall not be entitled to invoke this clause if we failed to take all steps and precautions which could reasonably be expected to have been taken, in order to prevent such act or event occurring and in order to mitigate and minimise the effect of such event.
3. Should the Force Majeure Event continue for a period of more than 14 (fourteen) days, then you are entitled to terminate the affected Service with immediate effect.
4. We will, wherever possible, will provide advance warning on our Website of any known or planned interruptions and will try to ensure any interruption is kept as brief as possible.
5. In no event will we be legally responsible (liable) to you for any failure by you and/or your third party service providers (including banks) or any of your and/or third party service providers systems, network and/or equipment which has an impact on the Services.
Changes to the agreement/service
1. We may at any time without notifying you make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
2. Save for clause 16.1 above, any part of the Agreement, be it the Service Terms or these General Terms (including the Privacy Policy and other policies or documents incorporated by reference), may be changed from time to time by us upon reasonable notice to you. Upcoming material changes will be posted on the Website 30 (thirty) days prior to their effective date on the "Policy Updates" page, accessible from the "Policy Updates" link on our Overview page visible once you have logged in to the Website.
3. If you do not agree to the changes made are entitled to terminate the Agreement on written notice to us prior to the date in which the changes come into effect. If you do not terminate the Agreement after the adjustments come into effect, the adjustments apply to you from the date they come into effect.
4. The Client may order additional services or ask for amendments/alterations of services already agreed with us, or give instructions to us which result in an amendment, alteration, reduction or extension of the services already agreed with us. In such case, the amended, altered, reduced or extended services must be expressly specified in an addendum to this Agreement, and the possible impact of your orders or instructions on the fees and expenses to be paid to us must be expressly agreed by and between the parties in an addendum to this Agreement before the services are performed.
Waiver
1. A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No partnership or agency
1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
Severance
1. If a court or similar body decides that any wording in the Agreement is invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant wording shall be deemed deleted. Any modification to or deletion of any wording under this clause shall not affect the validity and enforceability of the rest of this Agreement.
2. If one party gives notice to the other of the possibility that any wording of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Complaints and disputes
1. Should you have any concerns or issues relating to the provision of the Services, please contact our Support Team at support@howler.co.za or call us on +27 (11) 880 2199. Our support hours are; Monday to Friday – 07:00 – 21:00; Saturday to Sunday and on South African public holidays 09:00-14:00.
2. Should a dispute of any nature whatsoever arise between you and us on any matter provided for in or arising out of the Agreement and such dispute is not resolved through the Customer Relations Department of the Company then, save for urgent or interim relief which may be granted by a competent court, such a dispute may be submitted to confidential arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa. Arbitration proceedings shall be conducted in Cape Town in English. The expedited arbitration rules may be downloaded from http://www.arbitration.co.za/downloads/expedited_rules.pdf.
Governing law and jurisdiction
1. The Website is hosted, controlled and operated from the Republic of South Africa and therefore governed by South African law. The Agreement is also governed by South African law. Subject to the ‘Complaints and Disputes’ clause of these General Terms, you and the Company submit to the non-exclusive jurisdiction of the South African courts.
Addresses for notices
1. All legal notices given in terms of this Agreement will be in writing and all notices may be sent to the addresses you have provided in your Application Form. Any change in your address will only be effective if and when we receive written notification of your change in address.
2. We choose as its physical address for all purposes, including legal notices, under the Agreement, the following address:
  Howler,
  Units 1, 2 and 3,
  Oxford Gate,
  Hyde Park Lane,
  Hyde Park,
  Johannesburg,
  2196,
  South Africa
3. Where communications are made electronically, where provided for in accordance with the Agreement, such communications shall be deemed to have been received within 48 hours after having been sent, save where the sender knows that delivery thereof has failed.
Electronic communications
1. To the fullest extent permitted by applicable law, you consent to receiving the Agreement or any part thereof, and any other agreements, notices or other communications (“Communications”) from us regarding your Client Account and your use of the Services electronically. Electronic Communications may be posted on the Website and/or sent to the e-mail address we have on record for you. Please print a copy of each Communication and retain it for your records.
2. We reserve the right, but assumes no obligation to, provide Communications in paper format.
3. You agree that in the event of a dispute between you and us or between you and any other Client or Payer, our electronic records of your transactions, these General Terms, Privacy Policy, Service Terms, any identity verification information provided in a paper format and subsequently scanned or otherwise converted into an electronic format, and any other information stored or created electronically shall be admissible in a court of law or in relation to a law enforcement or regulatory investigation or prosecution.
General
1. We are entitled to assign the Agreement to any third party without your consent other than if such assignment would be to your detriment, but for security reasons, you may not cede, assign or otherwise transfer the Agreement or any of your rights or obligations thereunder to any other person without obtaining our prior written consent thereto.
2. If either of us fails or delays the exercise of any rights or remedies under the Agreement, we will not be deemed to have waived (i.e. given up) those rights or remedies in any way.
3. The Agreement (including the Privacy Policy and other documents or policies incorporated into these General Terms or the relevant Service Terms) is the entire agreement between you and us with respect to your use of the relevant Services, and supersedes all documentation, information and other communications (in each case whether spoken or written) between us with respect to such access and use.
4. If the Consumer Protection Act, 2008 (“CPA”) applies to these General Terms or the Service Terms, it is not intended that any of the provisions in the General Terms, or the Service Terms contravene anything contained in the CPA. All the provisions in these General Terms or the Service Terms must be treated as being qualified, to the extent necessary, to ensure the provisions of the CPA are complied with.
5. Change of circumstances: Where the performance of the Contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on change of circumstances. If, however, after the time of conclusion of this Contract, events occur which have not been contemplated by the parties and which fundamentally alter the equilibrium of the present Contract, thereby placing an excessive burden on one of the parties in the performance of its contractual obligations (hardship), that party shall be entitled to request revision of this Contract provided that:
  1. the events could not reasonably have been taken into account by the affected party at the time of conclusion of this Contract;
  2. the events are beyond the control of the affected party; and
  3. the risk of the events is not one which, according to this Contract,
  4. the party affected should be required to bear.