Website Terms & Privacy
Chirp is powered by Clandestine Insights (PTY) Ltd
CLANDESTINE INSIGHTS PROPRIETARY LIMITED AGREEMENT
1 IMPORTANT – READ THIS CAREFULLY
1.1 You must please read this Agreement. The terms and conditions of this Agreement are important and are the basis upon which You and Clandestine will do business with each other.1.2 While reading the Agreement, You will see that some terms and conditions are in capital letters. These are important but all of the other terms and conditions are also important and must be read as well.
1.3 To print/save a copy of this Agreement, use the viewer that is used to open this document. To print/save a copy of any other terms and conditions referred to in this Agreement, use the links as indicated, where You will be given an opportunity to print/save them.
In this Agreement, unless a contrary intention clearly appears, the following terms (including their capitalised equivalents when used in clauses that contain capital letters) will bear the meanings assigned to them and similar expressions will have corresponding meanings –
2.1 “Agreement” means this agreement with its terms and conditions together with any other terms and conditions referenced by this agreement, including as they might be amended from time to time;2.2 “Business Day” means any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;2.3 “Clandestine” means Clandestine Insights Proprietary Limited, a company duly registered and incorporated with limited liability under the company laws of the Republic of South Africa under registration number 2012/184965/07 and having its principal place of business at Second Floor Block 2, Northgate Park, Section Road, Brooklyn, 7405, Western Cape, Republic of South Africa;2.4 “Computer Devices” means computer equipment including desktops, notebooks, storage devices, tablets, mobile devices and wearable devices;2.5 “CPA” means the Consumer Protection Act, 2008;2.6 “Credit” means a credit Purchased by You for the express purpose of redeeming it against the Purchase of a Survey;2.7 “ECTA” means the Electronic Communications and Transactions Act, 2002;2.8 “Force Majeure” means, without limitation as to nature or kind, any one or more or any combination of –2.8.1 any power, force or agency which cannot be resisted or controlled by the ordinary person;2.8.2 any greater or superior or irresistible force;2.8.3 anything exceptional, extraordinary or unforeseen, which human foresight cannot be expected to anticipate;2.8.4 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), combination of workmen, prohibition of exports, rationing of supplies, flood, storm, fire or any other circumstances beyond the reasonable control of a party;2.8.5 inability on the part of Clandestine, as a result of anything of the nature contemplated in this clause 2.8, to obtain goods and/or services from its supplier or contemplated supplier;2.9 “Purchase” means the purchase by You of a Credit or a Survey, as the case may be, through this Website;2.10 “Received Payment” means when the funds payable/paid by You in respect of a Purchase have been cleared to Clandestine by its bankers following any holding period which may have been placed on those funds;2.11 “Registered User” means a person who has applied to become, and has subsequently been accepted by Clandestine as, a registered user of those features or operations on the Website which require registration;2.12 “Submitter” means an individual (a natural person) who is identified, contracted and allocated by Clandestine to perform tasks in relation to a Survey;2.13 “Survey” means a set of questions designed by You to be answered by each Submitter on the Website in accordance with the parameters specified by You during the Purchase of that Survey;2.14 “Survey Responses” means the responses to a Survey submitted on the Website by each participating Submitter;2.15 “Website” means the websites at getchirp.co, echo.do, www.secretagent.co.za and www.clandestine.co.za, including all associated subdomains, all of which are owned and operated by Clandestine;
2.16 “You” means the person browsing the Website and also means a Registered User, and “Your” will have a corresponding meaning.
3.1 NO PROVISION IN THIS AGREEMENT WILL BE INTERPRETED OR CONSTRUED TO –3.1.1 LIMIT OR EXEMPT CLANDESTINE FROM LIABILITY TO YOU FOR ANY LOSS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO THE GROSS NEGLIGENCE OF CLANDESTINE, OR, TO CONSTITUTE AN ASSUMPTION BY YOU OF ANY SUCH RISK OR LOSS;3.1.2 EXCLUDE, WAIVE OR DEPRIVE YOU OF ANY OF THOSE OF YOUR RIGHTS IN TERMS OF THE CPA OR ECTA OTHER THAN AS PERMITTED IN TERMS OF THOSE ACTS;3.1.3 AVOID ANY COMPULSORY OBLIGATION OR DUTY IMPOSED BY THE CPA OR ECTA UPON CLANDESTINE AS A SUPPLIER.3.2 Clause headings in this Agreement are for the purpose of convenience and reference only and capitalised terms and conditions in this Agreement are for the purpose of drawing attention to them only, and neither of these will be used in the interpretation of nor modify nor amplify its terms nor any of its clauses.3.3 In this Agreement unless a contrary intention clearly appears, words importing: any one gender include the other two; the singular include the plural (and the converse will apply); natural persons include legal entities (corporate or unincorporate) and the state (and the converse will apply).3.4 Any reference to legislation in this Agreement is to that legislation as it is currently and as amended or re-enacted from time to time.3.5 Any substantive provision in a definition in this Agreement which grants rights or imposes obligations on a party will, despite it being in a definition, be given effect as if it is a substantive provision in the body of thisAgreement.3.6 When a number of days is prescribed in this Agreement, they will be counted exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day will be the next following Business Day.3.7 Reference to days, months or years in this Agreement will be interpreted as Western calendar (the internationally accepted civil calendar) days, months or years. Reference to time is to South Africa Standard Time.3.8 The use in this Agreement of an expression covering a process available under South African law such as a winding-up (without limitation as to the nature or kind of process) will, if any party to this Agreement is subject to the law of another jurisdiction, be interpreted as including equivalent or similar proceedings under that law.3.9 Any term defined within the context of any particular clause in this Agreement will, unless otherwise determined by the context, bear that meaning for all purposes in terms of this Agreement, despite that term not being defined in the definition clause.3.10 Expiration or termination of this Agreement will not affect those provisions which expressly provide that they will continue to operate thereafter, or which of necessity must continue to have effect thereafter, despite such clauses not expressly providing for this.3.11 In this Agreement the rule of construction that a contract will be interpreted against the party responsible for the drafting or preparation of the contract, will not apply.3.12 Any reference in this Agreement to a party will, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.3.13 In this Agreement the words “include”, “including” and “in particular” will be interpreted as being by way of example or emphasis only and not be interpreted or take effect as limiting the generality of any prior words.
3.14 In this Agreement the words “other” and “otherwise” will not be interpreted as being limited to the nature or kind of any prior words where a wider construction is possible.
4.1 BROWSING THE WEBSITE, BEING A REGISTERED USER AND MAKING PURCHASES ARE EACH SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.4.2 If You browse the Website, apply to become a Registered User or make a Purchase, You are representing to Clandestine that –4.2.1 You are 18 years of age or older and You have full legal capacity to enter into this Agreement without the assistance of a guardian, curator or trustee (or similar such appointee); alternatively4.2.2 You are 18 years of age or older and You have full legal capacity to enter into this Agreement because You are being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee); alternatively4.2.3 You are younger than 18 years of age and You have full legal capacity to enter into this Agreement because You are being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee).4.3 If You –4.3.1 are younger than 18 years of age and are not being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee); or4.3.2 are 18 years of age or older but do not have full legal capacity to enter into this Agreement without the assistance of a guardian, curator or trustee (or similar such appointee),
then stop using the Website, do not apply to become a Registered User, do not make any Purchases and seek the advice and assistance of Your guardian, curator or trustee (or similar appointee) in this regard.
4.4 If You continue to browse the Website, apply to become a Registered User or make a Purchase then by doing soYou are agreeing to and will be deemed to have agreed to the terms and conditions of this Agreement. If You do not want to agree to them, then stop using the Website, do not apply to become a Registered User and do not make Purchases. Please remember that it is Your right to choose not to be bound by the terms and conditions of this Agreement.4.5 Clandestine reserves the right to amend the terms and conditions of this Agreement at any time by publishing an updated Agreement on-line on the Website. YOU MUST CHECK REGULARLY FOR ANY NEW AMENDMENTS. If You browse the Website, are a Registered User or make Purchases but do not want to be bound by any amended Agreement, then stop using the Website, do not continue as a Registered User and do not make any further Purchases. Whichever version of the Agreement that You agreed to up to the point of termination will remain binding on You and continue to apply in respect of all business You conducted with Clandestine, and to all Purchases You made, prior to termination. If You continue to browse the Website, continue as a Registered User or make a Purchase then by doing so You are agreeing to and will be deemed to have agreed to the amended terms and conditions of this Agreement.4.6 The right (a) of admission to the Website, (b) to be a Registered User, and (c) to make Purchases is reserved. Clandestine reserves the right, at any time and from time to time, without prior notice to You to –4.6.1 require You to validate Your details as a Registered User; and/or4.6.2 prevent You from browsing the Website; and/or4.6.3 reject Your application to become a Registered User; and/or4.6.4 revoke Your Registered User account; and/or4.6.5 decline to accept any Purchase You wish to make; and/or4.6.6 prevent You from making Purchases,
and in each such case, CLANDESTINE’S DECISION IS FINAL AND WILL BE BINDING ON YOU.
4.7 YOU WILL REQUIRE COMPUTER DEVICES AND TELECOMMUNICATION CONNECTIVITY IN ORDER TO USE THE WEBSITE, TO MAKE PURCHASES AND TO SEEK SUPPORT FROM CLANDESTINE. THE COST OF THIS IS FOR YOUR ACCOUNT AND CLANDESTINE WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH COSTS. YOUR COMMUNICATIONS WITH AND YOUR OPERATION AND USE OF THE WEBSITE AND MAKING OF PURCHASES, ARE ACROSS THE INTERNET WHICH IS A GLOBAL PUBLIC NETWORK SYSTEM. CLANDESTINE STRONGLY RECOMMENDS THAT YOU TAKE SECURITY MEASURES AGAINST MALICIOUS COMPUTER SOFTWARE, CODE OR ROUTINES THAT CAN TARGET COMPUTER DEVICES AND TELECOMMUNICATION CONNECTIVITY.4.8 CLANDESTINE DOES NOT WARRANT THAT YOUR USE OF THE WEBSITE OR MAKING OF PURCHASES WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY INFORMATION (OR COMMUNICATIONS) TRANSMITTED VIA THE WEBSITE OR WHEN MAKING PURCHASES WILL BE TRANSMITTED ACCURATELY, RELIABLY, IN A TIMELY MANNER,OR AT ALL. YOUR ACCESS TO THE WEBSITE AND MAKING OF PURCHASES MAY BE RESTRICTED FROM TIME TO TIME TO ALLOW FOR UPDATES, REPAIRS AND MAINTENANCE TO BE MADE TO CLANDESTINE’S SYSTEMS.4.9 YOU WARRANT TO CLANDESTINE THAT ALL INFORMATION PROVIDED BY YOU TO CLANDESTINE THROUGH THE WEBSITE, WHEN MAKING PURCHASES OR THROUGH ANY OTHER FORM OF COMMUNICATION, IS TRUE AND CORRECT AND THAT CLANDESTINE MAY RELY AND ACT UPON THAT INFORMATION ACCORDINGLY.4.10 YOU WARRANT TO CLANDESTINE THAT MATERIAL WHICH YOU SEND, FORWARD OR POST TO CLANDESTINE THROUGH THE WEBSITE, WHEN MAKING PURCHASES OR THROUGH ANY OTHER FORM OF COMMUNICATION, WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY.4.11 Clandestine may send You communications which will, generally, fall into two categories –4.11.1 business communications relating to the conduct of Your business with Clandestine;4.11.2 marketing communications. You may, at any time, require Clandestine to stop sending You marketing communications by using any unsubscribe link that appears in those marketing communications, alternatively, You can also achieve this by sending Your request to Clandestine by delivery, post or e-mail to the address in clause 16.4.12 Registered Users4.12.1 If You apply to become a Registered User You will be asked to read and to agree to the terms and conditions of this Agreement as part of the registration process. If –188.8.131.52 You are prepared to agree to them, then press the ‘accept’ or ‘agree’ or ‘yes’ (or similar) button and by pressing it You agree to the terms and conditions in this Agreement and to be bound by them. All business that You do with Clandestine will be subject to this Agreement including as it may be amended in terms of clause 4.5;184.108.40.206 You do not want to agree to them, then press the ‘reject’ or ‘do not agree’ or ‘no’ (or similar) button and by pressing it the registration process will be terminated and You will not be registered as a Registered User and will not be able to do any Registered User related business with Clandestine.4.12.2 Clandestine will retain a copy of the version of the Agreement by which You are bound from time to time. You may request a copy of this from Clandestine at any time.
4.12.3 Clandestine reserves the right, at any time and from time to time, without prior notice to close any Registered User account if Clandestine forms the opinion that that it is a threat to the security or operation of the systems of Clandestine or is disruptive to or causes harassment of any other Registered User.
You must keep Your username and password to the Website as secret at all times and not disclose them to any third party. You must notify Clandestine immediately (by delivery, post or e-mail to the address in clause 16) should You identify any unauthorised use of, or any breach of security in relation to, Your Registered User account (including Your username or password). IF YOU DISCLOSE YOUR USERNAME OR PASSWORD OR OTHER REGISTERED USER ACCOUNT DETAILS TO ANY THIRD PARTY OR IF YOU FAIL TO PREVENT THEIR DISCLOSURE TO ANY THIRD PARTY, YOU AGREE THAT SUCH THIRD PARTY IS APPOINTED AS YOUR AGENT TO ACT ON YOUR BEHALF USING YOUR REGISTERED USER ACCOUNT AND YOU AGREE TO BE BOUND BY AND LIABLE FOR ALL ACTIONS (INCLUDING PURCHASES) OF THAT THIRD PARTY.
6.1 Purchase and Redemption of Credits6.1.1 As a Registered User, You will be offered the opportunity to Purchase Credits through the Website. THE ISSUE, PURCHASE AND REDEMPTION OF CREDITS IS SUBJECT TO THIS AGREEMENT. YOU WILL NOT PRESENT ANY CREDIT FOR REDEMPTION OTHER THAN UPON THE TERMS AND CONDITIONS OF THIS AGREEMENT.6.1.2 You may not sell, resell, trade or otherwise deal in Credits which are offered to You or which You Purchase.Credits are for Your personal use and redemption only. Credits cannot be exchanged (partially or in whole) for cash or other credit.6.1.3 As part of the process of Purchasing Credits You will be asked to read and to agree to the terms and conditions of this Agreement. If –220.127.116.11 You are prepared to agree to them, then press the ‘accept’ or ‘agree’ or ‘yes’ (or similar) button and by pressing it You agree to the terms and conditions in this Agreement and to be bound by them. All Credits Purchased from Clandestine will be subject to this Agreement including as it may be amended in terms of clause 4.5;18.104.22.168 You do not want to agree to them, then press the ‘reject’ or ‘do not agree’ or ‘no’ (or similar) button and by pressing it the Purchasing process will be terminated and the Purchase will not complete.6.1.4 The final part of the process of Purchasing Credits is acceptance of the Purchase by Clandestine by way of receiving Your payment, and in this regard read clause 7. Be aware that until the Purchase is accepted by Clandestine, your Purchase will not be complete.6.1.5 You must keep the reference numbers of Your Credits as secret at all times and not disclose them to any third party. Clandestine is not responsible for lost or stolen Credit reference numbers. Each Credit shall state an expiry date which is 3 years after the date of its issue, and it shall expire on that date. UPON EXPIRY OF A CREDIT YOU WILL FORFEIT ANY UNREDEEMED VALUE ON THAT CREDIT.6.2 Purchase of Surveys6.2.1 You acknowledge that –22.214.171.124 Clandestine acquires report responses from Submitters and uses these to compile the associated SurveyReports;126.96.36.199 each Submitter will have a separate and a personal experience when participating in the associated Survey which experience will influence the report response which that Submitter provides;188.8.131.52 Clandestine believes that Submitters compile their report responses accurately and reliably and Clandestine compiles the Survey Reports accurately and reliably from the report responses acquired from the Submitters, however, for the reason explained in clause 184.108.40.206, no guarantee can be given by Clandestineas to the verifiability or reliability of the underlying report responses,
AND, ACCORDINGLY, YOU UNDERTAKE TO EXERCISE CARE AND DISCRETION IN THE MANNER IN WHICH YOU USE AND RELY ON THE SURVEY REPORTS.
6.2.2 As a User, You will be offered the opportunity to Purchase Surveys through the Website. THE PURCHASE OFSURVEYS IS SUBJECT TO THIS AGREEMENT (INCLUDING ANY TERMS AND CONDITIONS ASSOCIATED WITH THAT SURVEY). NOT ALL SURVEY TERMS AND CONDITIONS ARE THE SAME. BEFORE PURCHASING A SURVEYYOU MUST READ AND UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS ASSOCIATED WITH THAT SURVEY AND WHICH ARE PART OF THIS AGREEMENT (click here to read the Survey Terms and Conditions).6.2.3 Survey Reports (a) are intended for Your own private and/or internal business purposes, (b) are not to be distributed to or shared with third parties, and (c) do not constitute advice.6.2.4 As part of the process of Purchasing Surveys You will be asked to read and to agree to the terms and conditions of this Agreement. If –220.127.116.11 You are prepared to agree to them, then press the ‘accept’ or ‘agree’ or ‘yes’ (or similar) button and by pressing it You agree to the terms and conditions in this Agreement and to be bound by them. All SurveysPurchased from Clandestine will be subject to this Agreement including as it may be amended in terms of clause 4.5;18.104.22.168 You do not want to agree to them, then press the ‘reject’ or ‘do not agree’ or ‘no’ (or similar) button and by pressing it the Purchasing process will be terminated and the Purchase will not complete.
6.2.5 The final part of the process of Purchasing a Survey is acceptance of the Purchase by Clandestine by way of receiving Your payment, and in this regard read clause 7. Be aware that until the Purchase is accepted by Clandestine, your Purchase will not be complete.
7.1 The full price of the Credits or Surveys offered by Clandestine in respect of any Purchase You consider making, including taxes and any other fees or costs, will be presented to You during the Purchase process prior to checkout of that Purchase. You will be given the opportunity to ‘go back’ at each stage of the Purchase process and to correct/change Your Purchase up until the point that You ‘confirm and pay’ for that Purchase.7.2 Payment is made by electronic funds transfer or by credit or debit card (in which case You will need a valid unexpired ‘Visa’ or ‘MasterCard’ credit or debit card with sufficient funds available in order to make Your Purchase). Should the payment process –7.2.1 be approved, this is acceptance of that Purchase by Clandestine;7.2.2 fail or be declined, for whatever reason, Clandestine will not accept Your Purchase and that Purchase will fail.7.3 Credits Purchased by You will be delivered within 30 days after the date of acceptance by Clandestine of that Purchase and after Clandestine has Received Payment for that Purchase. If Clandestine is unable to execute thatPurchase within 30 days after the date of its acceptance by Clandestine and after Clandestine has Received Payment for that Purchase, You may then cancel that Purchase on 7 days’ written notice to Clandestine (by delivery, post or e-mail to the address in clause 16).7.4 Subject to clause 8 and provided that You have not redeemed it (partially or in whole), You are entitled to cancel Your Purchase of a Credit within 7 days from the date You receive that Credit from Clandestine, without penalty, by returning that Credit to Clandestine within 10 Business Days from the date of delivery of that Credit to You. Where Clandestine has Received Payment from You for the cancelled Purchase of a Credit, Clandestine will refund that Received Payment within 30 days of the date on which You cancel the Purchase of that Credit and return that Credit to Clandestine.7.5 DUE TO THE NATURE OF EACH SURVEY YOU PURCHASE FROM CLANDESTINE BEING THE PROMPT ALLOCATION BY CLANDESTINE OF MULTIPLE SUBMITTERS TO THAT SURVEY AND THE INCURRING OF FEES AND/OR EXPENSES BY CLANDESTINE IN RELATION TO EACH SUBMITTER, SURVEYS CANNOT BE CANCELLED, RETURNED OR EXCHANGED. REFUNDS IN RELATION TO SURVEYS WILL ONLY BE MADE IN THE CIRCUMSTANCES DESCRIBED IN CLAUSES 8 AND 14.2 AND, IF AND TO THE EXTENT APPLICABLE, IN THE SURVEY TERMS AND CONDITIONS.7.6 While Your Registered User account remains valid, a complete record of all transactions performed by You during the previous 12 months will be available on request on respect of that account. If Your Registered User account is terminated, for whatever reason, You may request a copy of this record from Clandestine (by delivery, post or e-mail to the address in clause 16) at any time during the period of 6 months from termination of Your Registered User account.
7.7 Yoco Technologies Proprietary Limited (“Processor”) is the provider of secure online services used by Clandestine to process all credit and debit card transactions. Clandestine will not have access to Your card details. Processor complies with Payment Card Industry (PCI) Data Security Standards which sets out the industry standards for maintaining a secure environment. Processor stores and processes Your information on computers that are protected by physical and technological security devices. All card details are secured by secure socket layer (SSL) encryption and reinforced through various encryption processes in order to provide protection for all sensitive payment information. Processor does not store or access any unencrypted card details. Card details entered by You are SSL encrypted and stored in Processor’s secure PCI environment. Processor’s company registration documents and site registered domain name are checked and verified by Processor. Processor takes all reasonable steps to ensure the integrity and security of its website and back-office applications.
8.1 will be performed and completed in a timely manner and Clandestine will give You timely notice of any unavoidable delay in the performance of those services;8.2 will be performed in a manner and quality that persons are generally entitled to expect,
and should Clandestine fail to meet these standards, You must promptly notify Clandestine in writing (by delivery, post or e-mail to the address in clause 16) describing the failure and Clandestine will, at its option (exercised reasonably), remedy any failure in the quality of the services performed or refund You a reasonable portion of any price You paid for those services, having regard to the extent of the failure.
9 PURCHASE SUPPORT
9.1 Should You require support in respect of any Purchase, Clandestine’s support staff will be available between 8:30 AM to 5:00 PM on Business Days and will provide e-mail support to endeavour to assist You. For e-mail support, please e-mail Your query to email@example.com
9.2 When requesting support, You agree to co-operate with Clandestine’s support staff and provide information reasonably requested and follow instructions reasonably given.
10.15 YOU HAVE THE RIGHT (A) TO ACCESS THE PERSONAL DATA YOU HAVE PROVIDED TO THE RESPONSIBLE PARTY, (B) TO CORRECT THE PERSONAL DATA YOU HAVE PROVIDED, AND (C) TO OBJECT TO THE PROCESSING OF YOUR PERSONAL DATA BY THE RESPONSIBLE PARTY BY NOTIFYING CLANDESTINE BY DELIVERY, POST OR E-MAIL TO THE ADDRESS IN CLAUSE 16. YOU ALSO HAVE THE RIGHT LODGE A COMPLAINT WITH THE REGULATOR AT (a) JD House, 27 Stiemens Street, Braamfontein, Johannesburg, Gauteng, or (b) PO Box 31533, Braamfontein, Johannesburg, 2017, Gauteng, or (c) complaints.IR@justice.gov.za.
11 PROHIBITED CONDUCT IN YOUR USE OF THE WEBSITE
Clandestine reserves the right to edit or remove material which is sent, forwarded or posted by You and which Clandestine determines is objectionable including any that Clandestine determines is offensive, indecent, obscene, abusive, threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party. In Your use of the Website and in communicating with Clandestine, You will not, directly or indirectly, –
11.1 conduct Yourself or incite others to conduct themselves in a manner contrary to any law or which would amount to a criminal offence or which would give rise to civil liability;11.2 conduct Yourself in a manner which is offensive, indecent, obscene, threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party;11.3 pose as, or hold Yourself out to have, an identity which is not You;11.4 interfere with the rights of others to use the Website;11.5 circumvent or compromise (or attempt to do so) the security on the Website or Clandestine’s systems;11.6 send, forward or post material which is offensive, indecent, obscene, abusive, threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party;11.7 advertise or promote Yourself or any third party or any products and/or services on the Website;11.8 create or send ‘chain letters’ being communications which are sent, or which encourage any person to send, them (or copies or variations of them) to multiple parties either in a single or over multiple posting sessions;11.9 introduce malicious computer software, code or routines which –11.9.1 might disrupt, distort, disable, harm or otherwise impede the operation of any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals;11.9.2 might disable or impair in any way the operation of any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals based on an elapsed period of time or advancement to a particular date or other numeral;11.9.3 might permit any person to access (remotely or otherwise) and disable or impair any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals;11.9.4 comprise harmful or hidden procedures, routines or mechanisms which might cause any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals to cease functioning;
11.9.5 might damage or corrupt data, storage media, software, firmware, hardware or communications or otherwise interfere with technology operations generally.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 All –12.1.1 patents, copyright, trademarks, logos, style names, slogans, designs, models, inventions, trade and business secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain, use or for their protection) which are used or held, whether or not currently, in connection with Clandestine’s business (including the Website); and12.1.2 ideas, designs, documents, diagrams, information, devices, technical data, scientific data, secret and other processes and methods used in connection with Clandestine’s business, and, all available information regarding marketing and promotion of Clandestine’s products and services, and, all and any modifications or improvements to any of these,
(collectively, “Intellectual Property”) are and will at all times be and remain the property of Clandestine (or its licensors) and You will not acquire any rights, title or interest of any kind in or to any or all of such Intellectual Property. Except as expressly permitted in this Agreement, You will not make use of Clandestine’s (or its licensors’) Intellectual Property without the prior written consent of Clandestine, which may withhold its consent in its sole and absolute discretion. All rights in and to Clandestine’s (or its licensors’) Intellectual Property not expressly granted in this Agreement, are hereby reserved.
12.2 Provided that You have agreed to the Terms and Conditions of this Website, You may view and interact with the Website in its original display format (as intended by Clandestine for access by the public) for Your own personal and non-commercial use. You may not display the whole or any part of this Website, on or in any other website or in any form of communication to any other person.12.3 You hereby grant Clandestine the perpetual, royalty-free, world-wide right to use and exploit to the extent that Clandestine sees fit, all and any ideas, comments and information provided or communicated by You to Clandestine (in whatever form they are provided or communicated). For clarity, You will receive no compensation or reward in the event that Clandestine uses and/or exploits any ideas, comments and information which You have provided or communicated to Clandestine. IF YOU DO NOT WANT CLANDESTINE TO USE OR EXPLOIT ANY OF YOUR IDEAS, COMMENTS OR INFORMATION, THEN DO NOT DISCLOSE THEM TO CLANDESTINE.
12.4 Clandestine may make reference to third party trademarks (or other intellectual property) on the Website. All third party trademarks (or other intellectual property) are the property of their respective owners.
13 TERMINATION, BREACH AND DEFAULT
13.1 Either party will be entitled to cancel this Agreement at any time by giving the other party 20 Business Days’ prior written notice to this effect.13.2 Should either party breach any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fail to remedy such breach within 20 Business Days of receipt of notice requiring it to do so and warning that if the breach is not so remedied, the aggrieved party may exercise its rights in terms of this clause, then the aggrieved party will be entitled without notice, in addition to any other remedy available to it at law or in terms of this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either case without prejudice to the aggrieved party’s right to claim damages.13.3 Should a party –13.3.1 commit an act which is or would be an act of insolvency in terms of section 8 of the Insolvency Act, 1936 (if committed by a natural person);13.3.2 commence business rescue proceedings, be provisionally or finally liquidated, be removed from the company register, take steps for its voluntary winding up, or, be placed in any similar or replacement regime covered by South African insolvency law,
then, the other party will thereafter be entitled to terminate this Agreement on written notice to that effect.
14.1 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, CLANDESTINE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, EXTRINSIC, SPECIAL, PENAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES SUSTAINED BY YOU ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THIS WEBSITE, ANY PURCHASE, ANY CREDIT, ANY SURVEY OR YOUR REGISTRATION, REGARDLESS OF HOW SUCH LOSSES OR DAMAGES ARE CAUSED (INCLUDING AS A RESULT OF NEGLIGENT ACTS OR OMISSIONS OF CLANDESTINE OR OF ANY PERSON FOR WHOM CLANDESTINE MAY BE LIABLE IN LAW), WHETHER THEY ARISE UNDER CONTRACT, DELICT OR OTHERWISE AND WHETHER THE LOSS WAS ACTUALLY FORESEEN OR REASONABLY FORESEEABLE.14.2 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, CLANDESTINE WILL NOT BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES SUSTAINED BY YOU ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THIS WEBSITE, ANY PURCHASE, ANY CREDIT, ANY SURVEY OR YOUR REGISTRATION, REGARDLESS OF HOW SUCH LOSSES OR DAMAGES ARE CAUSED (INCLUDING AS A RESULT OF NEGLIGENT ACTS OR OMISSIONS OF CLANDESTINE OR OF ANY PERSON FOR WHOM CLANDESTINE MAY BE LIABLE IN LAW), WHETHER THEY ARISE UNDER CONTRACT, DELICT OR OTHERWISE AND WHETHER THE LOSS WAS ACTUALLY FORESEEN OR REASONABLY FORESEEABLE, IN EXCESS OF –14.2.1 IN RELATION TO ANY CLAIM OR SERIES OF CLAIMS ARISING FROM ANY PURCHASE, ANY CREDIT OR ANY SURVEY, A REFUND OF THE AMOUNT PAID BY YOU FOR THAT PURCHASE, THAT CREDIT OR THAT SURVEY, AGAINST THE RETURN OF THE ASSOCIATED PURCHASE, CREDIT OR SURVEY; OR14.2.2 IN RELATION TO ANY OTHER CLAIM OR SERIES OF CLAIMS ARISING FROM THE SAME CAUSE OF ACTION, AN AMOUNT OF R250.00.14.3 SAVE AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE WEBSITE, CREDITS, SURVEYS AND ASSOCIATED SERVICES ARE PROVIDED ON AN AS-IS BASIS AND, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, CLANDESTINE EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, IN RESPECT OF THE WEBSITE, CREDITS, SURVEYS AND ASSOCIATED SERVICES.
14.4 Nothing in this clause 14 will be interpreted or construed to exclude or limit Clandestine’s liability for death, illness or personal injury or any loss of or physical damage to property, caused to You by any act or omission of Clandestine, save to the extent permitted by the CPA.
15.1 CLAUSES 4.1, 4.2, 4.4, 4.5, 4.12, 5, 10, 12.1 AND 12.4 ARE ALSO CONTRACTED BY CLANDESTINE AND AGREED TO BY YOU, FOR AND IN FAVOUR OF CLANDESTINE’S SUPPLIERS AND CLIENTS (INCLUDING EACH RESPONSIBLE PARTY AND EACH SUBMITTER) AND IN THIS REGARD THESE CLAUSES CONSTITUTE A CONTRACT FOR THE BENEFIT OF A THIRD PARTY.15.2 CLAUSES 14.1 AND 14.2 ARE ALSO CONTRACTED BY CLANDESTINE AND AGREED TO BY YOU, FOR AND IN FAVOUR OF ANY PERSON FOR WHOM CLANDESTINE MAY BE LIABLE IN LAW (INCLUDING EACH RESPONSIBLE PARTY AND EACH SUBMITTER) AND IN THIS REGARD THESE CLAUSES CONSTITUTE A CONTRACT FOR THE BENEFIT OF A THIRD PARTY.
16 ADDRESSES FOR NOTICE AND SERVICE
16.1 The parties choose as their addresses at which legal notices may be served and legal process may be executed, for all purposes in terms of this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following –16.1.1 Clandestine:
Physical:Second Floor Block 2, Northgate Park, Section Road, Brooklyn, 7405, Western Cape, Republic of South Africa
Postal:Second Floor Block 2, Northgate Park, Section Road, Brooklyn, 7405, Western Cape, Republic of South Africa
16.1.2 You, if You are a Registered User:
the addresses selected by You for this purpose during the process of applying to become a Registered User, as amended by You in accordance with this Agreement.
16.2 Any notice or communication required or permitted to be given in terms of this Agreement will be valid and effective only if in writing.16.3 Either party may by notice to the other party change the physical address chosen as its address at which legal notices may be served and legal process may be executed, to another physical address where postal delivery occurs in the Republic of South Africa, or its postal address or its e-mail address, provided that the change will become effective on the 5th Business Day from the deemed receipt of the notice by the other party. UNTIL THE CHANGE BECOMES EFFECTIVE ALL COURT PROCESS, NOTICES AND OTHER DOCUMENTS AND COMMUNICATIONS OF WHATSOEVER NATURE THAT HAVE BEEN SERVED AND EXECUTED AT THE THEN CURRENT ADDRESS WILL BE VALID AND EFFECTIVE AGAINST THAT PARTY EVEN IF THEY DO NOT COME TO THE ATTENTION OR KNOWLEDGE OF THAT PARTY.16.4 A notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its address at which legal notices may be served and legal process may be executed, to which post is delivered, will be deemed to have been received on the 5th Business Day after posting (unless the contrary is proved).16.5 A notice to a party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its address at which legal notices may be served and legal process may be executed, will be deemed to have been received on the day of delivery.16.6 A notice to a party sent by e-mail to its chosen e-mail address, will be deemed to have been received on the first Business Day following the date of dispatch (unless the contrary is proved).16.7 Despite the aforegoing, a written notice or communication actually received by a party will be an adequate written notice or communication to it even if it was not sent to or delivered at its chosen address at which legal notices may be served and legal process may be executed.16.8 Each party appoints any responsible person at its chosen address at which legal notices may be served and legal process may be executed, to receive for and on its behalf, service of process in such jurisdiction in any legal action or proceedings regarding this Agreement. Nothing herein will affect the right to serve process in any other manner permitted by law.
17 FORCE MAJEURE
If Force Majeure causes delays in or failure or partial failure of performance by a party of all or any of its obligations, this Agreement, or as the case may be the affected portion thereof, will be suspended for the period during which the Force Majeure prevails, but if they affect any material part of the Agreement it will be suspended only for a maximum period of 21 days after which any affected party will be entitled on 3 days’ written notice to cancel this Agreement. Written notice of a Force Majeure event specifying its nature and commencement date will be dispatched by the party seeking to rely on it (on whom the onus will rest) as soon as reasonably possible after its commencement. Written notice of the cessation of the Force Majeure event will be given by the party who relied on it, within 3 days after such cessation.
18 CESSION AND ASSIGNMENT
Neither party will be entitled to cede, delegate, assign or in any other manner dispose of any of its rights or obligations arising out of this Agreement without the prior written approval of the other party which may withhold its approval in its sole and absolute discretion, provided that to the extent that any such cession, delegation, assignment or disposal relates to an amalgamation or genuine restructuring of the first-mentioned party or any group of companies of which it is part, then the other party’s approval will not be unreasonably withheld. This clause will be binding on the liquidator, business rescue practitioner or trustee (whether provisional or final) of each party.
19 RELATIONSHIP OF PARTIES
Nothing in this Agreement will be deemed to constitute either party the partner or agent or legal representative of the other. It is not the parties’ intention to create nor will this Agreement be construed to create any commercial or other partnership. Neither party will have any authority to act for or assume any obligation or responsibility on behalf of the other party nor hold itself out as partner or agent of the other party.
This Agreement has been concluded in the English language. In the case of any conflict between the English version of this Agreement and any translation version, the English version will prevail. Notices required in terms of this Agreement will be given in the English language.
21 GOVERNING LAW
21.1 This Agreement will be governed by and interpreted in accordance with the laws of the Republic of South Africa.21.2 If this Agreement is concluded outside of the Republic of South Africa, or, where a party is domiciled in another country, the parties agree that this Agreement will be governed by the substantive laws of the Republic of South Africa (if its prescription laws are not considered to be substantive laws, by the prescription laws as well but excluding its conflict of law principles), provided that if the major part of the Agreement is to be performed outside the Republic of South Africa, none of its laws which promote competition in the Republic of South Africa will govern. All disputes, actions and other matters relating to this Agreement will be determined in accordance with such law.21.3 The United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement and transactions implemented pursuant to it.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable will be ineffective to the extent of such prohibition or unenforceability and will be treated as if it were not written herein, and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
23 WHOLE AGREEMENT, NO AMENDMENT
23.1 THIS AGREEMENT CONSTITUTES THE WHOLE AGREEMENT BETWEEN THE PARTIES RELATING TO ITS SUBJECT MATTER AND REPLACES, SUPERSEDES AND CANCELS IN ITS ENTIRETY, ANY PRIOR AGREEMENTS WHATSOEVER (WHETHER WRITTEN OR ORAL) IN FORCE BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.23.2 No amendment or consensual cancellation of this Agreement or any of its provisions or terms or of any agreement or other document or instrument issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising out of this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement or other document or instrument issued pursuant to or in terms of this Agreement will be binding unless performed in accordance with the terms of this Agreement or otherwise recorded in a written document signed by the parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the party granting such extension, waiver or relaxation).23.3 Any extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document or instrument issued or executed pursuant to or in terms hereof, will be strictly construed as relating strictly to the matter in respect whereof it was made or given, will not operate as an estoppel (to preclude/prevent a person from asserting/denying a fact or a right) against any party in respect of its rights in terms of this Agreement, and, will not operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this Agreement.23.4 No failure or delay on the part of either party in exercising any right, power or privilege in terms of this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
24 ECTA INFORMATION
In addition to that already contained in this Agreement or on the Website, the following information is provided in terms of ECTA –
24.1 Telephone number: None.24.2 Membership of self-regulatory or accreditation bodies to which Clandestine belongs/subscribes and their contact details: None.24.3 Codes of conduct subscribed to by Clandestine and how they can be accessed electronically: None.24.4 Office bearers: Bevan Ducasse, Mike Metelerkamp, Anton Gaylard, Nic Wallander.24.5 Place of registration: The Republic of South Africa.24.6 Description of the main characteristics of the goods/services offered by Clandestine to enable a consumer to make an informed decision on the proposed electronic transaction: Clandestine provides clients with a platform to create surveys and automatically receive responses from a consumer panel to generate insights based on the survey questions and consumer profile. 24.7 Alternative dispute resolution codes subscribed to by Clandestine and how they can be accessed electronically: None.
25 CPA INFORMATION
In addition to that already contained in this Agreement or on the Website, the following information is provided in terms of the CPA –
25.1 Public officer’s contact details: Mike Metelerkamp.25.2 The exact service to be rendered by Clandestine: Clandestine provides clients with a platform to create surveys and automatically receive responses from a consumer panel to generate insights based on the survey questions and consumer profile.25.3 Costs which Clandestine is entitled to recover from You, and under what circumstances: Payment for Credits and for services rendered. 25.4 Clandestine will disclose any information, at any relevant time, which may be relevant to You when You are deciding whether to acquire the service offered by Clandestine, or whether to continue with an existing service.25.5 The following commissions, consideration fees, charges or brokerages are payable to Clandestine by the following persons: None.25.6 Clandestine has not been (a) found guilty of any offence involving dishonesty which was punishable by criminal imprisonment without the option of a fine, or (b) placed under sequestration, liquidation or business rescue proceedings.