INTERPRETATIONS AND DEFINITIONS In this Agreement unless the context clearly indicates a contrary intention: 1.1 Words that are defined in the Data Protection Laws but not defined in this Agreement will bear the same meaning as in the Data Protection Laws, unless the context requires otherwise, and if any such terms are in conflict with each other, each such conflicting term must simultaneously be applied to the extent that it is legally possible and practical to do so without infringing on the other, and if not possible to apply simultaneously without infringing on the other, then the provision in the Data Protection Laws shall prevail. 1.2 the head notes are for reference purposes only and shall not affect the interpretation of any part hereof. 1.3 the singular includes the plural and vice versa. 1.4 a reference to one gender includes the other genders. 1.5 a reference to a firm or body corporate includes a natural person and vice versa. 1.6 Reference to a day shall mean Business Day, and “Business Day” means any day other than a Saturday, Sunday or an official public holiday. 1.7 the schedules shall be initialled by the Parties for the purposes of identification and form part of this Agreement as if specifically included herein. 1.8 any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time. 1.9 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement. 1.10 Important clauses, which may limit our responsibility or hold certain risk to the Data Subject, will be highlighted in bold. The Data Subject are to pay special attention to these clauses. 1.11 These Terms, and any additional document and/or terms FCA incorporates by reference, shall apply to the Data Subject when the Data Subject uses the Site. 1.12 Defined terms set out herein below will have the following meanings provided and will be written in initial capitals, cognate expressions bear a like meaning: 1.12.1 “Access Codes” means any of the Data Subject secret pin numbers used to access the Site, including the Data Subject personal identification number (PIN) or one-time pin (OTP), card numbers, passwords and/or user names; 1.12.2 “Advertisers” means the Advertisers authorised by FCA to advertise certain media on the Site; 1.12.3 “the/this Agreement” means this Agreement entered into between FCA and the Data Subject for the use of the Site, subject to these Terms and subject to the Privacy Policy incorporated herein by reference as if fully set out herein; 1.12.4 “App Store” means an online application store provided by Apple, Blackberry, Android or any similar service provider for the Data Subject’s Device; 1.12.5 “Consent” shall, as the context may require, mean; – 1.12.5.1 The acceptance and agreement by the Data Subject to be bound by these Terms; and, if applicable, the Additional Terms; and/or 1.12.5.2 Consent by the Data Subject for the lawful Processing of Personal Information as provided for in terms of the Privacy Policy or other Data Protection Laws; 1.12.6 “Customer” means any person who uses the Site and/or the Services; 1.12.7 “Data Protection Laws” means, inter alia, any and all laws, rules, regulations and/or statutes which regulate the protection of data and/or personal information on a global scale; 1.12.8 “Data Subjects” shall mean either and/or collectively: 1.12.8.1 a Customer; and/or 1.12.8.2 a Partners; and/or 1.12.8.3 any visitors to the Site; and/or 1.12.8.4 any person who uses the Site and/or the Services for any reason whatsoever; as the case may be and/or as the context may require, and each a “Data Subject”; 1.12.9 “Device” means the device the Data Subject uses to access the Site, such as a computer, laptop, smartphone and/or tablet or similar technology; 1.12.10 “FCA” means FCA LIMITED, with Registration Number: 147577, a company duly incorporated in terms of Mauritian Law with its registered address situated at 33 Edith Cavell, Port Louis, Mauritius, herein also referred to as “we”, “us” and “our”. Furthermore, any reference to us will be deemed to also include our Partners, employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, advisers, service providers, suppliers and content providers; 1.12.11 “FCA App” means any software application that is provided by, or is connected to, FCA and made available on the Sites from time to time, inclusive of any application programme interfaces; 1.12.12 “Intellectual Property” means without limitation, all inventions, specifications, patents, designs, trademarks, service marks, trade names and all goodwill associated with the foregoing; copyright and copyrightable works, including but not limited to, all copyright in any logos, devices, designs, multimedia works and computer software programs (in both source and object form, and including any programmers’ or developers’ notes, flow charts, memoranda and design documents); rights protecting goodwill and reputation; proprietary material, know-how, ideas, concepts, trade secrets, methods, techniques, graphics; schematics; marketing; sales and user data; domain names and URLs; databases and rights in databases, confidential information and all other intellectual property rights and rights of a similar character whether registered or capable of registration, rights in the nature of any of the above items whether registered or unregistered in any country or jurisdiction and all applications and rights to apply for protection of any of the same; 1.12.13 “ISP” means the internet service provider, which is an organisation that provides access to the internet; 1.12.14 “Juristic Person” includes inter alia any of the following: a partnership, an association or other body of persons, incorporated or unincorporated, a trust, a company, an organisation, an entity, a body corporate or a group of companies; 1.12.15 “Partner” means any and all such persons as FCA may contract for the provision of the Services, the FCA App and/or Site content, or any such other products and/or services as may be made available by FCA on the Site or otherwise from time to time; 1.12.16 “Personal Information” shall have the meaning ascribed to it in terms of the Data Protection Laws and or such information FCA may require a Data Subject to capture on the Site from time to time; 1.12.17 “person” shall include both a Natural and/or a Juristic Person; 1.12.18 “Privacy Policy” means FCA’s Privacy Policy as shown on the Site from time to time and is incorporated into this Agreement as if specifically set out herein; 1.12.19 “Processing” shall have the meaning ascribed to it in terms of the Data Protection Laws, and “Process” / “Processed” / “Processes” shall have a similar meaning, provided that any Processing by FCA, shall be regulated by and limited to the Privacy Policy; 1.12.20 “Profile” means the digital identity the Data Subject creates when the Data Subject registers on the Site; 1.12.21 “Services” means collectively any and all services that FCA makes available to all Data Subjects via the Site or otherwise, as described in these Terms; 1.12.22 “Site” means collectively FCA App, the FCA Website and any other social media platforms or software application which belongs to and/or is operated by FCA; 1.12.23 “Terms” means the terms and conditions set out in this Agreement, including the Privacy Policy; 1.12.24 “Website” means the internet websites with the address www.trafman.com or any website with a URL that is validly registered to FCA.
RECORDAL 2.1 FCA is the rightful owner of the Site. 2.2 These Terms regulate the Data Subject’s relationship with FCA for the non-exclusive use of the Site. 2.3 The Data Subject’s access to and use of the Site is subject to the requirement that the Data Subject agrees, according to the provisions of clause 4, that the Data Subject will only use the Site in line with these Terms, and subject to the Privacy Policy and any other applicable laws, legislation, rules and regulations which might apply from time to time.
CONDITIONS OF ACCESS AND HOSTING 3.1 The Data Subject’s access to, and use of, the Site is subject always to these Terms; 3.2 Regardless of the platform, gateway, portal or mode of access the Data Subject uses to install, download or access the Site, the Data Subject’s ISP may, depending on the type of contract the Data Subject has with the ISP, charge the Data Subject for accessing the Site or for any usage of the Site (such as data charges, sms charges and etc.) FCA cannot be held responsible for these charges. 3.3 Any and all information of the Data Subject uploaded to the Site is hosted in the “cloud” in a South African data base situated in Cape Town;
THE DATA SUBJECT ACCEPTANCE AND CONSENT 4.1 The Data Subject agrees that: 4.1.1 By using the Site the Data Subject expressly agrees to these Terms; 4.1.2 When installing or downloading and/or making use or accessing any of the Services via any FCA App, the Data Subject will be required to agree to these Terms by clicking/checking “I Agree”; 4.1.3 By clicking/checking “I Agree” and/or making use of the Site at any given time, signifies: 4.1.3.1 the Data Subject’s unconditional acceptance and Consent of these Terms; 4.1.3.2 the Data Subject’s unconditional acceptance and Consent for FCA to Process the Data Subject’s Personal Information, subject to the Privacy Policy; 4.1.3.3 the Data Subject’s acceptance and agreement to comply with these Terms; and 4.1.3.4 Acceptance and acknowledgement by the Data Subject that the Data Subject fully understands these Terms and also the consequences should the Data Subject not comply with these Terms; 4.1.4 FCA may, at any time, amend these Terms (and/or the Additional Terms) or introduce other applicable and/or Additional Terms relating to the Site or its Services or any other service, content, products, facilities or functionality which will be made available via the Site or otherwise. The Data Subject will be notified of (and required to agree to) such amendments and/or Additional Terms in the manner provided for in paragraph Error! Reference source not found. of these Terms; and 4.1.5 FCA may, in its sole discretion, at any time and for any reason and without prior notice, suspend or terminate the Site, the Services, the operation of the Site or any of the Site Content or the right to use the Services, the Site or any of the Site Content, subject to the protection of a Data Subject Personal Information as is provided for in the Data Protection Laws and this Agreement. 4.2 If the Data Subject does not agree to these Terms the Data Subject must: 4.2.1 not make use of the Site; and 4.2.2 immediately delete all copies of the Site Content on its Device and in its possession or under its control; 4.3 The Data Subject may print a copy of these Terms. If the Data Subject has any difficulty printing these Terms or require assistance in obtaining a hard copy or electronic copy of thereof, the Data Subject should contact the FCA support team via email at support@trafman.com. 4.4 The Data Subject agrees that the Data Subject is solely responsible for obtaining and maintaining all facilities, services, products and equipment which may be required by the Data Subject to use the Site. In this regard, the Data Subject must, at all times, provide the Data Subject’s own hardware, software as well as a modem and internet connectivity and telecommunications infrastructure. 4.5 The Data Subject acknowledges and agrees that this is a non – exclusive license for the use of the Site and that FCA may grant the same, similar, additional or different rights to other Data Subjects, persons and/or entities.
REGISTRATION FOR THE USE OF THE SITE AND THE SERVICES 5.1 The Data Subject must register on the Site and Consent to FCA Processing the Data Subject’s Personal Information by following the prompts displayed after the Data Subject has accessed and/or downloaded the Site onto the Data Subject’s Device. 5.2 When the Data Subject registers, the Data Subject must create a Profile for the secure use of the Site. The Data Subject must keep confidential its Access Codes and must not allow other people to use it. 5.3 The Data Subject also accepts full responsibility for all activities that occur under the Data Subjects access details or password and accept responsibility for sharing the Data Subjects user name and password. 5.4 The Data Subject is only permitted to use one account. If the Data Subject uses more than one account FCA could delete all access. 5.5 Once the Data Subject logged onto the Site once, certain information, functionality and other features of the Site will be accessible the next time the Data Subject access the Site without having to re-enter the Data Subject’s password. If the Data Subject prefers to enter the Data Subject’s password every time the Data Subject accesses the Site, the Data Subject should ensure to log out every time when it is not using the Site. 5.6 FCA may refuse to provide products and/or Services to the Data Subject if FCA is unable to verify any information that the Data Subject provides to us. 5.7 Once registered, and subject thereto that the Data Subject has clicked “I agree” to these Terms, the Data Subject will be able to utilise the Site and all Services. 5.8 Since we deal with each other in a non-face-to-face environment, for your security you will need to enter the correct access information or take any other steps acceptable to us for us to verify your identity and the electronic communications you have sent us using the Site each time you log on to the Site. 5.9 All electronic communications that are sent to us after you have met our verification requirements, set out herein above during log on, will be treated as valid and authenticate. This means that these electronic communications will have the same legal effect as written and signed paper communications from you. In order to protect you, we can refuse to act on any instructions you send us or can cancel your access (temporarily or permanently) if you do not meet the verification requirements, this includes where you enter the wrong Access Codes. 5.10 We may require for an additional layer of security (verification) for certain transactions. Such as where a unique number (OTP or one time pin) is sent to your Device before the transaction can be completed. 5.11 For your convenience, the same log in or Access Codes can be used to access different Devices. This means that if your Access Codes are lost, stolen or disclosed to someone else comprise your details on one Device, you can be defrauded across all the Devices which can expose you to greater losses. You must immediately contact and/or notify us if you know or even suspect that your Account has been compromised to ensure that your loss is minimised. 5.12 We are entitled to act on and accept all transactions and/or actions done after your Access Codes have been entered or applied as we will assume that all such transactions and/or actions have been authorised by you, even if such transactions and/or actions took place without your knowledge or consent or were not authorised by you. 5.13 The Data Subject will also have the option of registering for our mobile text message authentication service in terms of which the Data Subject authorises FCA, as a means of authenticating the Data Subject’s identity and to provide the Data Subject with access to the Data Subject’s Personal Information on the Site.
THE DATA SUBJECT BEHAVIOUR WHEN USING THE SITE AND THE SERVICES 6.1 The Data Subject shall not use the Site to obtain or distribute: 6.1.1 copyrighted material or material protected by law without the prior written consent of FCA; or 6.1.2 material knowingly containing viruses or any other destructive materials or data or code which is able to corrupt, interfere with, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation of a computer system or hardware or software. 6.2 The Data Subject must not perform any act which may jeopardise or interfere with the functionality or the operation of any part of the Site. 6.3 The Data Subject is strictly prohibited from using the Site for “spoofing”, “hacking”, “flaming”, “cracking”, “phishing” or “spamming” or any other activity designed or aimed at achieving purposes similar or the same as the aforementioned acts. 6.4 The Data Subject shall not intercept any information transmitted to or from FCA or the Site which is not intended by FCA to be received by the Data Subject. 6.5 Subject to the further provisions of this Agreement, the Site may only be used by the Data Subject for lawful purposes and shall not extend to the use of the source code of the Site. 6.6 Unless specifically stated or indicated otherwise, the Data Subject is not allowed to: (i) frame, link to, modify, distribute, commercialise, exploit and/or alter the Site; (ii) incorporate any part of the Site in any other work or publication; and/or (iii) perform any other act which may not be considered fair use. Should the Data Subject wish to do so, prior written approval is required and FCA is entitled, in its sole discretion, to withhold or grant consent and to impose any conditions on any consent which is granted by FCA. 6.7 Any restrictions on the use of the Site shall also apply to any part of the Site which may be cached when using the Site. 6.8 In addition, the Data Subject shall not and shall not allow a third party to: 6.8.1 decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming of the software forming part of the Site (“the Software”) or any files contained in or generated by the Software by any means whatever; 6.8.2 remove any product identification, copyright or other notices, from the Software or documentation; 6.8.3 lend to a third party or use any portion of the Software (whether or not modified or incorporated with other software); or 6.8.4 disseminate performance information or analysis of the Software from any source relating to the Software. 6.9 The Data Subject should only use the latest version of the Site. The App Store will notify the Data Subject of any updates that are available to the Data Subject. If the Data Subject does not install the latest version, the Site may not function correctly and the Data Subject may experience security and/or data flaws, for which FCA will not be liable under any circumstances whatsoever. 6.10 The Data Subject should use the Site only on a Device for which it is intended. 6.11 The Data Subject will not use the Site if the Data Subject is not legally capable and/or allowed to enter into any legal and/or binding agreement without the consent and/or assistance/guidance of a legal guardian and/or Competent Person. 6.12 FCA are committed to providing safe online services. All uses of the Site are protected by encryption at international standards. The Personal Information the Data Subject send through the Site is encrypted. Only our authorised employees or agents have access to information related to the Site.
COMMENCEMENT, TERMINATION AND EFFECTS OF TERMINATION 7.1 The Data Subject’s non-exclusive use of the Site commences on the date on which the Data Subject registers on the Site and endures indefinitely until terminated through any of the following events: 7.1.1 Termination of the Site by FCA; 7.1.2 Termination of the Services by FCA; 7.1.3 Termination of the Data Subject’s use of the Site by FCA for whatever reason; 7.1.4 De-activation of a Profile by the Data Subject; 7.1.5 Termination of any other agreement you may have with FCA.
PERSONAL INFORMATION & CONSENT 8.1 The Processing of a Data Subject’s Personal Information is subject to and are regulated by these Terms and the Privacy Policy; 8.2 The Data Subject must give the necessary Consent before FCA may share such Personal Information with any person. Such Consent authorises FCA and the person with whom such information is shared (“authorised person”) to be entitled to Process such a Data Subjects Personal Information on the Site; 8.3 The Data Subject can give such Consent through the platform provided by FCA via the Site; 8.4 The Data Subject warrants that by giving the afore said Consent the Data Subject agrees to share its Personal Information with FCA and the authorised person, and the Data Subject, whether personally or via his/her duly authorised representative, agrees to the Processing of the Personal Information of the Data Subject on the Site; 8.5 To the extent permitted by law, the Data Subject hereby indemnifies FCA, its affiliates, shareholders, directors, agents, consultants, successors in title and/or assigns and employees (“the Indemnified Parties”) against any claims, costs loss and/or damages that may be incurred by the Indemnified Parties of whatsoever nature, including, without limitation any direct, indirect, special, consequential and/or physical damages, whether in an action arising out of contract, statute, delict or otherwise, relating to the Data Subject’s use of the Site, and the Data Subject’s Consent for the Processing of its Personal Information on the Site, excluding any such damages caused by the wilful intent and/or negligence of FCA.
ELECTRONIC COMMUNICATION AND RECORDS 9.1 By visiting the Site and/or sending e-mails to FCA and giving its Consent, the Data Subject accepts that FCA can communicate with the Data Subject electronically. All records that the Data Subject send to us may be stored electronically and with an authorised person, although authorised persons are bound by the strictest levels of confidentiality. These electronic records shall be proof of the records, unless the Data Subject can prove otherwise. 9.2 Any electronic communication (for example, an e-mail or SMS) sent to the Data Subject will be regarded to have been received by the Data Subject upon being sent by FCA. This includes, but is not limited to mobile push notifications. 9.3 If the Data Subject is a registered user of the Site, the Data Subject will receive communications from us either via the Site, sms and/or e-mail. If the Data Subject do not want to receive communication from FCA, the Data Subject should contact our support team via e-mail: support@trafman.com in order to request a change in the way the Data Subject receives communications from FCA. 9.4 FCA takes all reasonable steps to protect the Data Subject’s Personal Information and maintain confidentiality, including the use of encryption technology. However, FCA cannot guarantee the security or integrity of any information the Data Subject transmit to us online and the Data Subject agrees that it does so at its own risk. 9.5 The Data Subject agrees that all agreements, notices, disclosures and other communications that FCA provide to the Data Subject electronically meet any legal requirement that the communications be in writing.
REFERENCES AND LINKS TO AND FROM OTHER SITES, PHISHING AND SPOOFING 10.1 The Site may contain references, links or advertisements to other Sites (“Other Sites”) and to the products, opinions or services of third parties and/or the Advertisers. 10.2 The Data Subject’s use of the Other Sites or the products or services of the Advertisers or third parties is entirely at the Data Subject’s own risk. FCA shall not be responsible for any loss whatsoever arising from or related to the Data Subject’s reliance on, use or attempted use of Other Sites or the opinions, products or services of third parties. 10.3 We have no control over an Advertiser or its products or its services, and we are therefore not a party to any dispute between you and an Advertiser. 10.4 We are not responsible to you for any loss or damage you suffer, whether directly or indirectly, because of an Advertiser or its products or services or your use of the products or services. You alone take the risk of using or purchasing the Advertiser products or services and you hereby agree to indemnify us and hold us harmless for any loss or damage you may suffer, or cause, in this regard. 10.5 The Data Subject shall not make (and may not permit any third party to make) any reference to FCA or the Site, whether by way of a link or otherwise, where the reference could, in any way, be interpreted as an endorsement, affiliation or recommendation by FCA in relation to the Data Subject or a third party or of the services, products or opinions of a third party, without FCA’s prior written consent. 10.6 If an unsolicited e-mail appears to be from FCA requests the Data Subject to provide Personal Information (such as your credit card number, user name, or password), or that asks to verify or confirm your FCA information by clicking on a link, it is most likely that the e-mail was sent by a “phisher” or “spoofer.” 10.7 FCA will never ask for this type of information in an e-mail, and strongly recommend not to respond to these e-mails and not to click on the link. Responding to “phishing” places the Data Subject and its Personal Information at risk. FCA cannot be responsible for any consequences resulting from a Data Subjects response to any email sent by a “phisher” or a “spoofer”.
EXCLUSION OF LIABILITY FOR USE OF THE SITE 11.1 The Data Subject’s use of the Site is entirely at the Data Subject’s own risk. 11.2 FCA undertakes to ensure to the best of our ability that the Site is provided to you in a safe, secure and reliable manner. FCA shall take reasonable care to prevent harm and loss to you, but although we take reasonable care to prevent harm or loss to you, we shall not be held liable for any kind of loss or damage you may suffer, including direct, indirect, special, incidental or consequential loss and/or damages, because of your use of, or inability to use, the Site, unless such loss and/or damage arose because of our negligence or intent. 11.3 In addition to the above, FCA is not liable for the following (except where such loss or damage is caused by FCA’s negligence or intent): 11.3.1 Any loss or damage, which you or any other party may suffer due to unauthorised interception and/or monitoring; 11.3.2 Any loss or damage if you didn’t take reasonable steps to safeguard your Access Codes and/or followed the steps recommended by us from time to time; 11.3.3 Late or delayed transactions and/or actions; 11.3.4 Loss or damage arising from the unauthorised use of the Site including where a Data Subject exceeds their authority; 11.3.5 We are not responsible for any errors or delays in communication systems outside of our control; and 11.4 Subject to the Act, and to the fullest extent allowed by law, FCA shall not have any liability whatsoever in relation to the Data Subject’s use of the Site. The Data Subject hereby indemnifies FCA against any loss and/or damage, whether direct or indirect, arising from the Data Subject’s use of or reliance on the Site or arising out of any of the events contemplated in paragraph 11.5 below, or any actions or transactions resulting therefrom, even if FCA have been advised of the possibility of such loss and/or damage. 11.5 In addition, the Data Subject agrees that FCA will not be liable for any unavailability, interruption, downtime, malfunction, or failure of the Site, for any reason whatsoever or any consequential loss and/or damage of any nature and/or reason whatsoever.
EXCLUSION OF WARRANTIES AND REPRESENTATIONS 12.1 The Site is provided “as is” and are subject to change without notice. 12.2 FCA does not accept any responsibility for any errors or omissions on the Site. In addition, the Data Subject acknowledges that the Site may not be accurate or complete. 12.3 The Site is provided without any representation or warranty whatsoever, whether express, implied or statutory, including (without limitation) any representation or warranty as to the operation, integrity, compatibility, availability or functionality of the Site or as to the operation, accuracy, completeness, integrity, compatibility, availability functionality or reliability of the Site. 12.4 FCA also makes no warranty or representation, whether express or implied, that the Site is free of viruses, destructive materials or any other data or code which is able to harm or otherwise impede in any manner the operation of a computer system, computer network or the Data Subject’s hardware or software and the Data Subject accept all risks in this respect. 12.5 The Data Subject may also not rely on any implied warranty or representation, which allegedly induced the Data Subject to agree to these Terms, unless the representation or warranty is recorded in these Terms. 12.6 The grant of any indulgence by us to the Data Subject in respect of any matter connected to the Data Subject’s use of the Site shall not constitute a waiver of any right by us or prevent or adversely affect the exercise by us of any existing or future right. 12.7 FCA hereby warrants that it shall do all in its power, and as may be reasonably required by any applicable Data Protection Laws, in order to protect the Data Subject’s Personal Information and furthermore to do all such things to the best of FCA’s capability and as may be reasonably required to ensure compliance with such Data Protection Laws.
INTELLECTUAL PROPERTY RIGHTS 13.1 The Site is protected by law. This incorporates all Intellectual Property in respect of the Site, including all rights, title and interest (statutory and common law) in the Intellectual Property. Any unauthorised use of the Site is prohibited. 13.2 All rights, title and interest (statutory and common law) in the Intellectual Property, of whatsoever nature existing now and in the future, remain the absolute property of FCA. The Data Subject may not sub-license, transfer or assign, without the prior written consent of FCA, and rights and/or obligations of the Data Subject in terms of this Agreement. 13.3 The Data Subject will not acquire any right, title or interest in or to the Intellectual Property pertaining to the Site other than those rights expressly granted to the Data Subject in terms of this Agreement.
MISCELLANEOUS MATTERS 14.1 Addresses: 14.1.1 Our address for the service of any legal notice in accordance with this Agreement is to be sent at: 33 Edith Cavell, Port Louis, Mauritius; 14.1.2 The address for the service of any legal notice on the Data Subject is the Profile of the Data Subject, alternatively the email address provided by the Data Subject as part of the Personal Information shared on the Site; 14.1.3 Notices given to the above addresses shall be deemed to have been duly given: (i) on dispatch if sent to the provided email address; (ii) on the day the notice is posted and/or uploaded onto the Data Subject’s Profile on the site. 14.2 Disputes, claims and legal proceedings: 14.2.1 Any dispute declared by the Data Subject and any claim which the Data Subject may have against FCA arising out of or in connection with interpretation of this Agreement, including after termination, cancellation or amendment of these Terms and/or the Services will, either, at the sole discretion of FCA, be referred to arbitration in accordance with the rules of AFSA (the Arbitration Foundation of South Africa) or LCIA-MIAC Arbitration Centre in Mauritius (“LCIA-MIAC“), using its specially designed Commercial Arbitration Rules; 14.2.2 If FCA declares a dispute with the Data Subject, or wish to institute any claim or legal proceedings against the Data Subject arising out of or in connection with this Agreement, FCA reserve the right to deal with the matter in a forum of our choice, which will include but will not be limited to, the courts of Mauritius and/or South Africa. This right will continue to apply after termination, cancellation or amendment of these Terms; 14.2.3 Notwithstanding anything to the contrary contained in these Terms, neither the Data Subject nor FCA will be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the institution or resolution of a dispute or other legal proceedings. 14.3 Costs: Any costs, including legal costs on attorney and own client scale and value-added tax, incurred by us arising out of the Data Subject’s use of the Site, or a breach of these Terms, will be borne by the Data Subject. 14.4 Assignment: The Data Subject shall not cede, assign or transfer any of the Data Subject’s rights and obligations in this Agreement without the prior written consent of FCA. FCA is entitled to cede, assign or transfer any of its rights and obligations in this Agreement, and shall give the Data Subject sufficient notice of such cession, assignment and/or transfer. 14.5 General: 14.5.1 In the event that any part of these Terms are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable; 14.5.2 No relaxation or indulgence which FCA may grant to the Data Subject will be deemed to be a waiver of any of our rights in these Terms or in law; 14.5.3 The termination of any agreement created by these Terms will be without prejudice to any other rights or remedies that the Data Subject or FCA may be entitled to under the agreement or at law, and will not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination. 14.6 Governing Laws: 14.6.1 These Terms will be interpreted in accordance with and be governed by the laws of the Republic of South Africa. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded. The choice of law does not impact your rights as a consumer according to the consumer protection regulations of your country of residence. If you are acting as a consumer, you agree to submit to the non-exclusive jurisdiction of South African courts. Subject to any other provision of these Terms that might dictate otherwise, judicial proceedings that you are able to bring against us arising from or in connection with these Terms may only be brought in a court located in South Africa. If FCA wishes to enforce any of its rights against you as a consumer, we may do so in the courts of South Africa, unless otherwise required by law. . If you are acting as a business, you agree to submit to the exclusive jurisdiction of the South African courts, or such other court as FCA may in its sole discretion determine. 14.7 Cross Border Transfer of Personal Information: 14.7.1 FCA may not transfer Personal Information about a Data Subject to a third party who is in a foreign country unless: 14.7.1.1 the third party, who is the recipient of the Personal Information, is subject to a law, binding corporate rules or binding agreement which provide an adequate level of protection that effectively upholds principles for reasonable Processing of the information that is substantially similar to the conditions for the lawful Processing of Personal Information relating to a Data Subject who is a Natural Person and, where applicable, a Juristic Person, and includes provisions, that are substantially similar to this provision in the Data Protection Laws, relating to the further transfer of Personal Information by FCA by third parties who are in a foreign country; 14.7.1.2 the Data Subject consents to the transfer; 14.7.1.3 the transfer is necessary for the performance of a contract between the Data Subject and FCA, or for the implementation of pre-contractual measures taken in response to the Data Subject’s requests; 14.7.1.4 the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the Data Subject between FCA and a third party; or 14.7.1.5 the transfer is for the benefit of the Data Subject, and it is not reasonably practicable to obtain the consent of the Data Subject to that transfer, and if it were reasonably practicable to obtain such a consent, the Data Subject would be likely to give its consent.
FORCE MAJEURE 15.1 Neither party will be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure results from a hindrance beyond its reasonable control (“Force Majeure”). In the event of a Force Majeure, the parties agree to suspend the affected party’s obligations until the Force Majeure situation ceases to exist. 15.2 Either party may terminate these Terms with immediate effect upon notice to the other party if the period of Force Majeure continues for a period of 30 (thirty) consecutive days. In case of termination due to such circumstances, neither party shall be liable to the other for such termination. However, such termination will not affect any pre-existing liabilities or claims or any other provisions of these Terms.
BREACH 16.1 Should any of the parties (“Defaulting Party”) commit any breach of any term or condition of this Agreement and fail to remedy such breach within 7 (SEVEN) days of receipt of a notice from the other party (“Non-Defaulting Party”) calling upon the Defaulting Party to rectify such breach, the Non-Defaulting Party shall, without prejudice to any other rights which it may have: 16.1.1 be entitled to cancel this Agreement; 16.1.2 claim specific performance in terms of this Agreement; or 16.1.3 claim damages it may have suffered instead of specific performance, together with all amounts owing under or in terms of this Agreement, whether or not such amounts have become due for payment. 16.2 Should a Data Subject however be in breach of any warranty, undertaking and/or obligation under these Terms, and/or specifically violate/breach any provision of these Terms, and/or infringe the Intellectual Property of FCA and/or breach any policy of FCA, FCA may in its sole discretion immediately terminate the Profile of the Data Subject and suspend the Data Subjects access to the Site, until such time as any dispute potentially resulting from such breach/violation by the Data Subject is, in the sole discretion of FCA, entire resolved.
