1. Introduction

 

(i) This user agreement (the Agreement) is an agreement between you and Zapper Marketing (Southern Africa) (Pty) Ltd., a company incorporated in South Africa Registration Number 2014/018049/07 and with a registered office at Unit 201 and 202 North Block, Boulevard Place, 1 Heron Crescent, Century City, Western Cape, 7441 (the Company). The Agreement governs your use of the Zapper free download QR Code applications for Android, Windows Mobile and iOS (iPhone) respectively (collectively the App), and governs your use of the App.

(ii) You will be required to accept this Agreement when you enter the ‘My Account’ section of the App and provide your personal details for use in the My Account feature within the App (Account Information). Completing the My Account section allows you to use the features described in section 2 below. Should you decline the acceptance of this Agreement these aspects of the App will not be available to you.

(iii) By using the App you agree that you have read and understood the terms and conditions of this Agreement and you acknowledge that these terms and conditions in their entirety shall apply to you.

(iv) We reserve the right to amend, modify, update and change any of the terms of this Agreement. We advise you to check for updates on a regular basis. Any material changes to the Agreement will be notified to you through the messaging features of the App. Your continued use of the App will be deemed to constitute your acceptance of such changes.

 

2. Features of the App

 

The advanced features of this App allow you to:

(i) register and/or login to a participating merchant’s website simply by scanning a bar code or QR code on that merchant’s website (Scan-to-Login); and
(ii) pay a participating merchant using the payment card details stored in the My Account section simply by scanning a bar code or QR code on that merchant’s website, invoice, bill or other material and then confirming the payment via the App (Scan-to-Pay).
3. The My Account Feature in the App
(i) Your Account Information details will be sent to our Zapper server. The Company will not store any passwords or payment information except locally on your device.

(ii) When you use the Scan-to-Login or Scan-to-Pay features, we will send your Account Information (including, where applicable, your encrypted payment card details) from the Zapper server to a merchant server or to the applicable third party payment services provider.

(iii) The Privacy Policy, which is accessible through the App and forms an integral part of this Agreement, describes how we collect and use your Account Information.

(iv) The Company reserves the right to use the Account Information in order to contact you in the future in relation to marketing any other products or services offered by the Company, any of its related group companies or participating merchants, unless you have opted out of such use in accordance with our Privacy Policy.

 

4. Our Role

 

(i) When you use the features of the App outside the United States of America, we are acting as your agent to assist you in concluding the purchase of goods or services from participating merchants. When you use the features of the App within the United States of America, we are not acting as your agent or trustee but as agent for the participating merchants to process payments made by you. In all circumstances when you purchase goods or services from participating merchants, the contract for the sale of those goods or services will be between you and the merchant.

(ii) You understand and agree that the Company shall not be responsible for the outcome of your transactions with external merchants via the App. We do not have control, nor shall we be liable for, the legality of, or the use of, the goods and services that are paid for using the App.

(iii) It is the responsibility of you and the relevant merchant, not us, to resolve any dispute or claim raised by you relating to any payments made via the App or the purchase or sale of goods or services you (a Customer Claim). We may, however, initiate a refund if (a) a payment made via the App is reversed by a court, regulatory authority or other third party acting in accordance with applicable law, (b) we, in our sole and absolute discretion, accept or have reason to believe that a payment was not authorized by you, or (c) a payment is allegedly unlawful, suspicious, or in breach of this Agreement. Where you have a dispute with a merchant, we will provide information we hold which may assist resolution and otherwise attempt to assist you as far as we consider practicable. We may charge you an administration fee to cover our reasonable costs of providing any such assistance.

 

5. Security and Unauthorised Payments

 

(i) The App gives you the opportunity to choose a password to authorize a payment (the Password).

(ii) As long as the correct Password is entered (or if you elect not to use a Password), we will assume that you are the person giving instructions and making payments and you will be liable for them, except to the extent provided for in section 11(ii). You must therefore choose a secure Password that is not easily guessed by another person, keep the Password secret and make sure that it is not stored in a way that enables others to access it or impersonate you. In addition, for the avoidance of doubt, if you disclose the Password to any person whom you authorise to access the App, you are also responsible and liable for any access, use, misuse or disclosure of your Password by such person.

(iii) We may also use facial recognition technology for payment verification and fraud prevention purposes.

(iv) If you become aware of a payment being made via the App that was not authorised by you (an Unauthorised Payment) or if you lose the device on which the App is installed, disclose your Password to a person unauthorised by you, or believe that someone else can use the App by impersonating you, you should inform us immediately by emailing support@zapper.com and we will disable the payments feature of the App until you re-enter your payment card details in the Payment Methods section of the App. Unless and until you provide such notice:

(a) you will be responsible for any instruction which we receive and act on, even if it was not given by you; and

(b) we will not be responsible for any unauthorised access to confidential information about you in the App.

(v) We can refuse to act on any instruction including where we believe an instruction: (i) was unclear; (ii) was not given by you; or (iii) might cause us to breach a legal or other duty; (iv) if we believe the App is being used for an illegal purpose; or (v) may harm our reputation.

(vi) You agree to fully cooperate with us, our agents, regulatory authorities and the police where you or we suspect there have been Unauthorised Payments in respect of the App.

 

6. Charges

 

We do not charge you to use this App. However, your mobile network operator may charge you to access this App and these charges may vary if you access the App when abroad. You are responsible for these charges.

 

7. Termination/Suspension of your Access

 

We may suspend or terminate your access to the App or to the features within the App without notice where it is reasonable for us to do so and specifically if: (i) for any reason we decide to discontinue to provide the App, (ii) we believe that you have breached any of the terms of this Agreement, (iii) your use of the App has been in any way improper or breaches the spirit of this Agreement, (iv) we reasonably believe use of the App may be at risk of fraud or misuse; (v) our information technology infrastructure has failed, is experiencing outages or requires maintenance; or (vi) ordered or recommended to do so by the security services, court or a relevant regulatory authority.

 

8. Your use of the App

 

(i) You must not:

(a) copy or reproduce all or any part of the App;
(b) alter, modify or adapt all or any part of the App;
(c) remove or tamper with any copyright notice attached to or contained within the App; or
(d) carry out reverse engineering of the App.

(ii) You represent and warrant to us that:

(a) all Account Information provided to us is true and accurate in every respect and you will keep all such information up to date during the term of this Agreement;

(b) you will only use the App for your own purposes and not on behalf of any other person or entity;

(c) you and all payments initiated by you will comply with all laws, rules, and regulations; and

(d) you will not use the App, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the functionality of the App.

 

9. Intellectual Property

 

(i) The Company hereby grants you the non-exclusive, non-transferable right to use our App, including the copyright and all intellectual property rights therein, in connection with the App and in accordance with this Agreement.

(ii) The App and all content derived from the App is protected by copyright and/or other intellectual property rights. You hereby acknowledge that by using the App you obtain no rights in the software, trademarks or content related to the App and you may only use the same in complete accordance with this Agreement.

 

10. NO WARRANTY

 

(I) THE APP IS PROVIDED “AS IS”. WE MAKE NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, IN RELATION TO THE SATISFACTORY QUALITY, FITNESS FOR PURPOSE, COMPLETENESS OR ACCURACY OF THE SERVICE OFFERED THROUGH THE APP.

(II) WE MAKE NO WARRANTY THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR BUGS ,OR REPRESENT THE FULL FUNCTIONALITY, ACCURACY, RELIABILITY OF THE MATERIALS THEREIN.

 

11. Limitations of Liability

 

(i) This section 11 sets out the entire liability of the parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to each other in respect of: any breach of this Agreement; any use made by you or our affiliates of the App or any part of it; and any representation, statement or delictual act or omission (including negligence) arising under or in connection with this Agreement.

(ii) In case of an Unauthorised Payment, as notified to us by emailing support@zapper.com, we will at your request refund the Unauthorised Payment, except in the following cases (where you shall remain solely liable for all losses):

(a) where the Unauthorised Payment arises from your election not to use a Password to access the App or features of the App;

(b) where the Unauthorised Payment arises from your failure to create a secure Password or to protect and keep secure your Password in accordance with section 5;

(c) if you fail to notify us within 24 hours of any loss of your Password or other event that could reasonably be expected to have compromised the security of the App after you have gained knowledge of such event in which case you shall remain liable for losses incurred up to your notification to us;

(d) if you have compromised the security of the App with intent or negligence; or

(e) if you fail to dispute and bring the Unauthorised Payment to our attention within 30 days from the date of the Unauthorised Payment.

(iii) We shall not be liable in contract, tort, negligence, or otherwise, for any loss or damage whatsoever arising from or in any way connected with your interaction and/or transaction with any third party website via the App. We are not responsible for the content of any linked sites.

(iv) You confirm that we shall not be liable to you or any third party for any modification to, suspension of, or discontinuance of the App.

(v) Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence; fraud or fraudulent misrepresentation; the indemnification obligations referred to in section 12; or any other liability that cannot be excluded by applicable law.

(vi) Without prejudice to section 11(v):

(a) our total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the repayment of Unauthorised Payments made in accordance with and subject to section 11(ii) above;

(b) neither party shall be liable to the other, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: (i) losses that are not reasonably foreseeable; or (ii) special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with this Agreement.

(vii) No party shall be liable for any delay in or failure to perform obligations they have undertaken in these terms as a result of events beyond their reasonable control which cannot reasonably be avoided or overcome, while such events persist.

 

12. Indemnity

 

You will indemnify us against any losses we suffer as a result of claims made or threatened against either of us as a result of your use of the App in connection with criminal or other illegal activities.

 

13. Language and Notices

 

(i) This Agreement has been drafted in the English language. In the event of any discrepancy between the meanings of any translated versions of this Agreement and the English language version, the meaning of the English language version shall prevail. You agree that we will communicate with you and you will communicate with us in English during the term of this Agreement.

(ii) When you use the App or send e-mails to us, you are communicating with us electronically. By registering for the App and accepting the terms of this Agreement, you affirmatively consent to receive notices electronically from us. We may provide in electronic format all communications including, without limitation. agreements related to the App, amendments or changes to such agreements or any applicable policies, disclosures, notices, payment information, statements, responses to claims and other customer communications that we may be required to provide to you by law (collectively, Communications). Communications may be posted to the App and sent by e-mail to the e-mail registered in your Account Information. All Communications will be deemed to be in “writing” and received or accessed by you. You are responsible for printing, storing and maintaining your own records of Communications, including copies of this Agreement. This condition does not affect your statutory rights. You can contact us about the App by sending an email to support@zapper.com.

 

14. System complaints and Dispute Resolution

 

(i) If you wish to make a complaint about the App, you can email support@zapper.com, with brief details of your complaint. Our customer service staff will acknowledge your complaint by email within 1 business day. They will then investigate and send you an initial response, having had access to an officer with the authority to settle the complaint (including, where appropriate, an offer of redress). Where appropriate, the member of staff investigating the complaint will not be any staff member who was directly involved in the subject matter of the complaint. This should take no longer than five business days, but most complaints may well be resolved by close of business on the business day after the complaint is received. If the complaint is not resolved by close of business on the business day after the complaint is received, we will send you a copy of this complaints handling procedure.

(ii) If you are not satisfied by our response, you must contact the Customer Services Manager, who will respond by email within a further five business days.

(iii) If you are not satisfied with the response from the Customer Services Manager, you can email support@zapper.com, enclosing the responses already given to it. That email will then be referred to the Managing Director, who will respond by email within a final five business days.

(iv) Within four weeks after receiving a complaint, we will send you either a final response or a response which explains why we are not in a position to resolve the complaint and indicates when we will make further contact.

 

15. General

 

(i) We reserve the right to modify or terminate the App at any time, without notice, and we will not be liable to you as a result of any such action.

(ii) If any part of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of this Agreement and shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.

(iii) Any waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.

(iv) Unless otherwise expressly stated, nothing in this Agreement shall create or confer any rights or any other benefits to third parties.

(v) This Agreement contains the entire agreement between you and us relating to its subject matter. You confirm that, in agreeing to accept this Agreement, you have not relied on any representation save insofar as the same has expressly been made a representation in this Agreement.

(vi) This Agreement is personal to you and you may not assign any of your rights or obligations to any third party. Any assignment in violation of this provision shall be void and of no effect. We reserve the right to transfer, assign, sublicense or pledge this Agreement, in whole or in part, to any person without notice and you will be deemed to consent to such assignment.

(vii) In this Agreement and unless otherwise stated, “we”, “us” or “our” refers collectively to the Company and its subsidiaries, affiliates, directors, officers, employees, agents and contractors.

 

16. Governing Law

 

This Agreement and any dispute or claim arising out of or in connection with it shall be governed by the laws of the Republic of South Africa.