1.1. The Hupu App: Advance Hoopoe (Proprietary) Limited (hereinafter referred to as “Hupu”, “our,” “we,” or “us”) provides its users around the world with a mobile application ("the Hupu App") that facilitates online selection and ordering of, payment for, and delivery/collection of merchandise from third-party providers and/or producers (hereinafter called "the Vendors"). Please read these Terms & Conditions of Use so you understand the full implications of your use and enjoyment of the Hupu App.
1.2. Consumer Protection:– These Terms & Conditions of Use are subject to the Consumer Protection Act, 68 of 2008 ("the CPA"). Provisions hereof which appear in both bold and italics text (other than Headings) are important and should be carefully read and understood by you as they:
1.2.1. may limit the risk or liability of Hupu or a third party;
1.2.2. may require you to indemnify Hupu; and/or
1.2.3. may serve as an acknowledgement of a fact, by you.
1.3. Entering into this Agreement: You ("the User") agree to Hupu’s Terms & Conditions of Service (“Terms”) by installing and/or accessing the Hupu App and/or using the Hupu App, its features, components, software or website (collectively, “Structure”). If you do not agree to all these Terms, do not install, access or use the Hupu App or the Structure.
1.4. Age Restriction: If you are under the age of 18 years, you may use the Hupu App only under supervision of a parent or guardian.
1.5. Licence: you are granted a licence by Hupu to use the Hupu App and the Structure, as more specifically detailed in Clause 3 hereunder.
1.6. Hupu is your Agent:
· It is important that you understand that, on each occasion you make use of the Hupu App or avail yourself of its Structure and, more specifically, in facilitating the selection and ordering of, payment for, and delivery of the merchandise of the Vendors, you appoint Hupu to act as your agent and proxy;
· You acknowledge that, notwithstanding that merchandise may be ordered and paid for via the Hupu App, you place such order and contract with the relevant Vendor.
· The sale of merchandise (concluded on acceptance of an order , as set out in clause 1.9) is solely between you, as User, and the relevant Vendor.
· Neither Hupu nor any party attending to the Courier Collection (as defined hereunder and if applicable) is a party to that sale of merchandise.
· Hupu only provides the platform that facilitates transactions between Vendors and Users in relation to the former’s merchandise.
· Hupu is neither the buyer nor the seller of the merchandise.
· Any claims a User may have in respect of merchandise shall be against the relevant Vendor.
1.7. Remuneration: Hupu's remuneration for your use of the Hupu App and/or the Structure is incorporated in the prices listed on the Hupu App for the Vendors' merchandise, as listed.
1.8. Placing an Order: You place an order with a Vendor using the Hupu App only after you have clicked on the "Confirm Order" tab in the Checkout Process.
1.9. The Order: Your order is an offer to purchase the merchandise selected from a Vendor, at the price and on such other terms as displayed by them on the Hupu App, which order and/or offer is conveyed to the Vendors by Hupu, on your behalf. You will receive a notification on your device either confirming the order or, in the case of non-availability, declining, as the case may be.
1.10. Availability of merchandise: All Vendors’ merchandise listed through the Hupu App is subject to availability. If merchandise ordered by you is not immediately available or not available at all, you are entitled to a reasonable credit at our discretion.
1.11. The Prices: The Vendors’ listed prices on the Hupu App are in South African Rands and are only valid and effective in South Africa. You accept the prices so listed price when you have clicked on the "Confirm Order" tab. These prices include our remuneration from you for acting as your agent and proxy.
1.12. The Payment: Your payment for the merchandise to a Vendor is facilitated by Hupu, on your behalf, through the medium of Peach Payments*. Users can affect payment by use of VISA, MasterCard, or American Express Credit, Debit or Cheque Cards, as the case may be.
*Peach Payments :- provides a secure, encrypted payment platform that is fully compliant with the International Payment Card Industry Data Security Standards (PCI DSS) using Extended Validation SSL with 256-bit encryption, the highest level of encryption currently available, and all of your cardholder information is stored in a PCI (Payment Card Industry) certified vault in accordance with the PCI guidelines and security standards. Users may go to www.peachpayments.com to view their security certificate and security policy. Hupu does not collect or store any information relating to your credit/debit cards used in transactions.
1.13. Consent: You consent to our use of the facilities of Peach Payments in order to process your Credit, Debit or Cheque Card transaction payments to Vendors and acknowledge that doing so necessitates the disclosure of your Credit, Debit or Cheque Card information to Peach Payments when you make a purchase.
1.14. Delivery: Vendors deliver the merchandise purchased by you to Click and Collect Nodes** designated by you on the Hupu App. ** Click and Collect Nodes are depositary sites listed on the Hupu App, the locations of which have been identified by Hupu as centrally located and of general, mutual convenience to Users in major metropolitan areas.
1.14.1. User Collection: Merchandise is collected by Users at the Click & Collect Node in the location designated by the User on the date and within the collection hours as specified for each Click & Collect Node on the Hupu App ;or
1.14.2. Courier Collection: If available to your location, for an additional, ad hoc charge (details of which are specified in the Hupu Ap), Hupu can facilitate conveyance directly to Users, in which event Hupu acts as your agent and proxy in collecting the merchandise from the Click & Collect Node and conveyance to the address provided by you at checkout.
1.15. There may be costs involved in the Courier Collection, which will be displayed as a separate charge on the Courier Collection page before the User confirms an order. Any Courier Collection added to a User order will be dependent upon, amongst other things, the value of that order, the date and time of conveyance and the conveyance address and charges may vary from week to week.
1.16. Please note that Courier Collection is currently only available in a limited area identified on the map on the Hupu Website.
1.17. Hupu’s facilitation of Courier Collection is aimed at conveyance of your merchandise within the conveyance window, but Hupu incurs no liability if the merchandise is conveyed to a User outside of this window or if all or any of the goods ordered are not conveyed.
1.18. Users are responsible for making suitable arrangements to receive ordered merchandise utilising Courier Collection and for providing appropriate instructions. In the event that merchandise is stolen from a User’s doorstep or damaged while there, Hupu does not accept liability. Hupu reserves the right to refuse to accept orders from any Users; considerations of conveyance challenges may give rise to such a refusal.
1.19. If Hupu is unable to convey the merchandise to a User, or has to deliver late, for reasons beyond Hupu’s control, for example adverse weather conditions, strike actions, vehicle breakdown, traffic congestion or Vendor default, Hupu cannot accept liability for any inconvenience or loss that this causes.
1.20. No fees or purchase obligation: There are no fees for registering with Hupu or installing the Hupu App. There are also no purchase obligations – a User orders whatever merchandise a User requires from the listed Vendors, entirely at a User’s own discretion.
1.21. User Profile: When you register with Hupu, you will have to choose a User Name and Password. You will be asked for your User Name and Password every time that you utilise the Hupu App. It is your responsibility to keep your User Name and Password ("Profile") private and safe. Hupu accepts no liability for any damages that you may suffer or any losses you may incur from the unauthorised use of your Profile by a third party on the Hupu App. You acknowledge that Hupu is not responsible for third party access to your account that results from theft or misappropriation of your account.
1.22. Account Set-up: All Users are required to first set up an Hupu App account by completing the registration process and accepting these Terms. Completing the registration process requires you to provide your Personal Information. In providing such Personal Information, you represent and warrant that:
1.22.1. the information about yourself is true, current, and complete;
1.22.2. you will maintain and promptly update your Personal Information to keep it true, current and complete; and
1.22.3. you will maintain the security of your password and identification.
1.23. Terms binding: These Terms are valid, binding, and enforceable in terms of Section 11 of the Electronic Communications and Transactions Act No. 25 of 2002 ("the Act") and the common law, in respect of all persons that access or use the Hupu App, its Structure or any part thereof.
1.24. User Rights: Access to and/or use of the Hupu App and/or its Structure may be classified as “electronic transactions” as defined in terms of the Act and therefore Users have the rights detailed in Chapter 7 of the Act, save as qualified hereunder.
1.25. Qualification of User rights: Chapter 7 of the Act does not apply in respect of transactions:
1.25.1. for the supply of foodstuffs, beverages or other merchandise intended for everyday consumption;
1.25.2. where the merchandise-
220.127.116.11. by reason of its nature cannot be returned; or
18.104.22.168. is perishable or likely to deteriorate or expire rapidly; or
1.25.3. where the transaction is for the provision of catering services and where the Vendor undertakes, when the transaction is concluded, to provide these services on a specific date or within a specific period.
1.25.4. No Warranty: Hupu does not guarantee (implied or otherwise) the quality of any foodstuffs, beverages or other merchandise intended for everyday consumption produced and/or supplied by Vendors. Hupu is not responsible for the description of merchandise as provided by Vendors. Hupu would, however, like to know if you are displeased with any merchandise you receive from Vendors listed on the Hupu App so we can procure improvement to the customer service rendered by the Vendors. Please contact Hupu if your merchandise proves less than satisfactory. User satisfaction is our primary goal. We review each complaint individually. Furthermore, you may contact us if you have any questions about these Terms or if your experience with the Hupu App has been less than satisfactory so that we may endeavour to resolve your complaint or query. Users must ensure that they inspect the merchandise they have purchased as soon as possible after receipt and notify us promptly if they find any defects, by mailing us on customerFeatures@Hupu.co.za.
1.25.5. Amendment: Hupu reserves the right to amend and/or augment these Terms. When placing an order utilising the Hupu App, the Terms in force at the time of your placing that order with a Vendor will apply to that order and its related transactions. Hupu further reserves the right to change, remove or edit content and/or the Structure available through the Hupu App or discontinue any aspect or Vendor or change the software required to access and use the Hupu App or to delete the Hupu App, in their sole discretion.
2. AGREEMENT IN TERMS OF SECTION 21 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT NO. 25 OF 2002 ("the Act")
2.1. The User and Hupu agree that:
2.1.1. the User shall be bound to these Terms (which specifically include the provisions of Clause 1 above: Introduction) and such agreement is concluded at Durban (South Africa) at the time the User installs or accesses the Hupu App for the first time;
2.1.2. the User agrees and warrants that data messages (e.g. sms and email) that are sent to Hupu from a computer, IP address or mobile device normally used by or owned by the User, were sent and/or authorised by the User personally;
2.1.3. electronic signatures, encryption and/or authentication are not required for valid electronic communications between the User and Hupu;
2.1.4. when the User sends a data message through the Hupu App to Hupu, it is deemed to have been received when Hupu replies to the data message. An auto response from a Website is not regarded as a reply;
2.1.5. when Hupu sends a data message to the User, it is deemed to have been received by the User when the User is capable of downloading the data message.
3. LICENSE, PERMISSIONS AND USE
3.1. Hupu grants Users a limited, revocable, non-exclusive and non-transferable license to access and make personal use of the Hupu App and/or the Structure exclusively for private, and/or non-commercial purposes;
3.2. This license may be terminated or cancelled by Hupu, in its sole discretion, at any time and without prior notice or reason;
3.3. Users are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of Hupu so long as the link does not portray Hupu, the Features, the Vendors, or their merchandise and products in a false, misleading, derogatory, or otherwise offensive manner. Users shall not use any Hupu logo or other proprietary graphic or trademark as part of the link without prior written permission.
3.4. Hyperlinks to the Hupu App from any other source shall be directed to the home page of Hupu. Links beyond the Hupu home page may only be used with Hupu’s prior written consent.
3.5. This license does not include:
3.5.1. any resale or commercial use of the Hupu App and/or the Structure or its contents;
3.5.2. any downloading or copying of account information for the benefit of another merchant or agent;
3.5.3. any collection, collation, listing, comparison and/or use of any merchandise or product listings, descriptions, or prices;
3.5.4. downloading (other than page caching) or modifying or reverse engineering of the Hupu App and/or the Structure, or any portion of same, save with the prior written consent of Hupu;
3.5.5. any use of data mining, robots, or similar data gathering and extraction tools or use technology or Web Applications (including web crawlers, robots or web spiders) to search, collect or copy content from the Hupu App or Hupu website for any purpose whatsoever, save and except through the use of bona fide search engine operators and use of the search facility provided on the Hupu App;
3.5.6. any derivative use of this Hupu App, its contents and/or the Structure.
3.6. The Hupu App and/or the Structure or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the prior written consent of Hupu.
3.7. A User may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Hupu and/or the Structure and/or the listed Vendor's and/or their prices and merchandise, without prior written consent of Hupu and/or the Vendor concerned.
3.8. A User may not use any meta tags or any other "hidden text" utilizing the name of Hupu or its trademarks without the prior written consent of Hupu.
3.9. Any unauthorized use terminates all the permissions and/or licenses granted by Hupu to a User, forthwith and without notice.
3.10. Users shall not, through the use of the Hupu App and/or the Structure, publish, share or disclose material that may be offensive, defamatory, regulated, copyrighted, incorrect, untrue, prohibited, infringing or damaging to any person and/or use the Hupu App and/or the Structure for any other unlawful or harmful reason and/or for the creation, storage and transmission of unsolicited commercial communications.
3.11. In the event that a User contravenes these Terms or commits any act constituting cybercrime:
3.11.1. Hupu reserves the right to claim civil damages from and/or institute criminal proceedings against the User.
3.11.2. Hupu shall not be liable, in any manner whatsoever, for any damage, loss or liability resulting from such contravention by the User or any third party who obtained any content from the User.
3.12. No permission is given or should be implied that information on the Hupu App may be used to communicate unsolicited communications to Hupu or the listed Vendor's and all rights detailed in section 45 of the Act are reserved.
3.13. Names, telephone, mobile or fax numbers and email addresses published on the Hupu app may not be incorporated into any database used for electronic marketing or similar purposes.
3.14. The caching of this Hupu App shall only be allowed if:
3.14.1. The purpose of the caching is to make the onward transmission of the content from this Hupu App more efficient;
3.14.2. The cached content is not modified in any manner whatsoever;
3.14.3. The cached content is updated at least every 12 (twelve) hours; and
3.14.4. The cached content is removed or updated when so required by Hupu.
3.15. This license and agreement commence when accepted by the User and has an initial term of twelve (12) months. Upon expiration of the initial term and each subsequent term, this agreement will automatically renew for successive renewal terms in equal duration to the initial term unless the User terminates by providing written notice to Hupu at least thirty (30) days prior to the end of the previous term, or as stipulated in 3.17 hereunder.
3.16. Users may not cede, assign or transfer the license or these Terms, by operation of law or otherwise, without Hupu’s prior written consent. Any attempt by Users to cede, assign or transfer these Terms or the license, without such consent, will be null and void and of no force or effect. Hupu may cede, assign or transfer these Terms or the license, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
3.17. Hupu may terminate your account and/or suspend your access to the Structure should you fail to comply with the Terms contained in this agreement, as amended from time to time, or any other guidelines and rules published by Hupu. Hupu further reserves the right to terminate or suspend any User's account with or without cause and in Hupu’s sole discretion without prior notice.
4. DISCLOSURES REQUIRED BY SECTION 43 OF THE ACT
4.1. Full name and legal status: Advance Hoopoe (Proprietary) Limited;
4.2. Registration number: 2017/245273/07
4.3. Physical address: Block C, Ground Floor, Essex Park, 46 Essex Terrace, Westville, 3629 of, KwaZulu-Natal, South Africa
4.4. Postal address: Block C, Ground Floor, Essex Park, 46 Essex Terrace, Westville, 3629 of, KwaZulu-Natal, South Africa
4.5. Telephone number: +27 (0)31 266 0245, Fax: +27 (0)86 601 1187
4.6. Website address: www.Hupu.co.za
4.7. E-mail address: customerFeatures@Hupu.co.za
4.8. Membership of self-regulatory bodies: N/A
4.9. Code of conduct: See Code of Conduct (hyperlink).
4.10. Physical address for receipt of legal service: Block C, Ground Floor, Essex Park, 46 Essex Terrace, Westville, 3629 of, KwaZulu-Natal, South Africa
4.11.1. George Frank Dawson; and
4.11.2. Jared Reuben Krause.
4.12. Alternative Dispute Resolution: Subject to urgent and/or interim relief, all disputes regarding:
4.12.1. access and use of the Hupu App;
4.12.2. the inability to access the Hupu App;
4.12.3. the Structure and content available from this Hupu App; or
4.12.4. these Terms;
shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Durban in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client.
4.13. Access to information: To request records in terms of the Promotion of Access to Information Act, No. 2 of 2000, the following procedures must be followed:
4.13.1. The prescribed form must be used to make the request for access to a record. The form can be downloaded from the Department of Justice website at www.doj.gov.za.
4.13.2. A request must be made to the address, fax number or electronic mail address as set out above.
4.13.3. Sufficient detail of the request made must be provided on the request form to enable Hupu to clearly identify the record as well as the requester’s specific identity, and positive documentary proof of identification must be provided by the requester.
4.13.4. A requester must indicate which form of access they require.
4.13.5. A requester must indicate if they wish to be informed in any other manner and if so, they must state the necessary particulars required to be so informed.
4.13.6. A requester must identify the right that they are seeking to protect or that they wish to exercise, and they must provide an explanation as to why the requested record is required for the protection or exercise of that right.
4.13.7. If a requester is making the request on behalf of another person, they must submit proof, to the satisfaction of Hupu, of their authority to make such a request, by means of a legally binding Power of Attorney in their favour. Failure to do so will result in the request being rejected.
4.13.8. The prescribed fee of R50.00 (if any) must be paid as set out below.
4.13.9. Once a request is made, Hupu will send notice to the requester to pay the prescribed fee which must be paid before a request will be processed.
4.13.10. Hupu will then make a decision in respect of your request and will notify you of its decision.
4.13.11. Should a request be refused, the requester may lodge an application at court against the tender or payment of the requested fee as will be advised in the Notice to them.
4.13.12. If a request is granted then the requester will have to pay a further access fee for the search, reproduction and preparation of the record as well as for any time, which has exceeded the prescribed hours, to search and in order prepare the record for disclosure to them.
4.13.13. The fees schedule can be downloaded from the Department of Justice website at www.doj.gov.za.
5. DISCLAIMER AND LIMITATION OF LIABILITY
5.1. It is the responsibility of the User to satisfy itself that the content available from and through the Hupu App meets the User's individual requirements and is compatible with the User's computer or mobile hardware and/or software.
5.2. The Hupu App has not been compiled to meet the User's individual requirements and Hupu makes no warranty as to the use, availability or performance thereof.
5.3. Hupu shall take all reasonable steps to ensure the quality and accuracy of content available to the User from or through the Hupu App. However, Hupu does not warrant or represent that the contents of and/or Structure available on or through the Hupu App are in all cases true or correct or free of any errors.
5.4. Hupu makes no warranty or representation as to the availability and functionality, at all times, of the Hupu App. Users acknowledge that the Hupu App may be unavailable or non-functional due to updates or other causes beyond the reasonable control of Hupu, including, without limitation, virus infection, unauthorised access (hacking), power failure or other “acts of God.”
5.5. To the full extent permissible by applicable law, Hupu (including its Directors, employees, service providers and agents) shall not be liable for any damage, loss or liability of any nature incurred by the User resulting from access to or inability to access the Hupu App or the Structure or the content available on or through the Hupu App or for any other reason other than as a consequence of the gross negligence of Hupu .
5.6. Hupu cannot give any undertaking that the merchandise you purchase from Vendors through the Hupu App will be of satisfactory quality, and this and any other such warranties (whether express or implied) are disclaimed by Hupu absolutely to the fullest extent permitted by law. This disclaimer does not affect your statutory rights against a Vendor. Where you order merchandise through the Hupu App Hupu will disclose your customer information related to that transaction to the relevant Vendor.
5.7. Users are urged to obtain professional advice before taking any course of action related to the information, ideas or opinions expressed on the Hupu App, all of which should not be regarded as professional advice or the official opinion of Hupu.
5.8. Hupu shall not be liable for costs incurred by Users to obtain professional advice relating to 5.7 or these Terms generally.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All intellectual property pertaining to the Hupu App and/or the Structure, including but not limited to content, trademarks (or any confusingly similar trademarks), trade names, logos, pictures, video, downloads, domain names, patents, design elements, software, source code, meta tags, databases, text, graphics, icons and hyperlinks are the property of Hupu or its content suppliers (including Vendors) or licensed to Hupu and as such, are protected from infringement by domestic and international legislation and treaties.
6.2. The compilation of all content on the Hupu App is the exclusive property of Hupu, with copyright authorship for this collation vesting solely and exclusively with Hupu and is accordingly protected by international copyright laws.
6.3. Subject to the rights licensed to the User above, all other rights to intellectual property pertaining to the Hupu App and the Structure are expressly reserved.
6.4. No person shall amend, copy, use, decompile and/or reverse engineer the source code of the Hupu App, copyright in respect of which vests with Hupu.
6.5. No person may use logos, icons, photos, pictures, graphics or trademarks and the like from this Hupu App as hyperlinks or for other purposes without the prior written consent of Hupu.
7. CHANGES AND AMENDMENT Amendments to these Terms take effect 24 hours after the relevant amendment is published on the Hupu App, and your continued use of the Hupu App is deemed as your acceptance of these Terms as amended.
8. PRIVACY & PERSONAL INFORMATION
8.1. Hupu shall take all reasonable steps as required by the Protection of Personal Information Act No. 4 of 2013 , the Promotion of Access to Information Act, No. 2 of 2000 and any other prevailing statutory obligation , to protect the Personal Information of Users collated through their use of the Hupu App.
8.2. Personal Information is provided voluntarily by the User or is collected electronically by using cookies. A cookie is a small file that is placed on a User's hard drive in order to keep a record of the User's interaction with Hupu App and to facilitate User convenience.
8.3. Users may choose to accept or decline cookie use independently through their browser settings. Declining cookies, however, may prevent Users from taking full advantage of the Hupu App.
8.4. This standard technology (cookie use) is not able to identify individual users but simply allows Hupu to collect statistics. A cookie in no way gives Hupu access to the User’s mobile, computer or device and/or any Personal Information about the User, other than the data the User chooses to share with Hupu.
8.5. Cookies allow Mobile or Web Applications to respond to the User as an individual. The Mobile or Web Application can tailor its operations to the User’s needs, likes and dislikes by gathering and remembering information about the User’s preferences.
8.6.1. to keep track of Users' browsing habits (temporary or session cookies);
8.6.2. to compile de-identified statistics relating to use of the Structure offered or to provide Hupu with feedback on the performance of the Hupu App (traffic log cookies);
8.6.3. to communicate User requested information to the User;
8.6.4. to provide the Structure to the User as requested by the User;
8.6.5. to authenticate the User;
8.6.6. to communicate the availability of merchandise or the features of the Structure to the User;
8.6.7. to allow third parties/Vendors to market merchandise and products to the User who specifically consents to the same;
8.7. The following classes of information may be collected in respect of Users who have enabled cookies:
8.7.1. the browser software used;
8.7.2. IP address;
8.7.3. date and time of activities while using the Hupu App; and
8.7.4. URLs of internal pages visited;
8.8. By using the Hupu App, the User consents to the collection by Hupu of Personal Information when the User completes any online form.
8.9. A User warrants that the mobile number and/r email address provided to Hupu is lawfully that of the User or that the User has permission to use such mobile number and/or email address (including that in respect of a third party's mobile number and/or email address) specifically on the Hupu App.
8.10. Personal Information collected from Users may be collected, maintained, saved, compiled, modified, destroyed, de-identified, shared and disclosed, subject to the following:
8.10.1. the User consenting thereto, alternatively without the User’s consent only where lawfully compelled to do so;
8.10.2. for Hupu’s lawful purposes;
8.10.3. for as long as statutory law requires Hupu to do so; and
8.10.4. for statistical and research purposes and without publishing same in identified form.
8.11. All rights of ownership in and to de-identified statistical information collected and compiled by Hupu are reserved to Hupu.
9.1. Hupu will exercise all reasonable technical and organisational measures as required by applicable statutory laws to protect the Personal Information of Users submitted to or collected by the Hupu App and to secure the content of the Hupu App from loss, misuse, unauthorized disclosure, alteration or destruction and Hupu requires its service providers to do likewise.
9.2. Notwithstanding criminal prosecution, any person shall be liable to Hupu and its service providers for all and any damages, liability and losses of whatsoever nature that Hupu and its service providers may suffer pursuant to:
9.2.1. delivery or attempts to deliver any damaging code to the Hupu App and or the Structure or the server and computer network that support the Hupu App, whether negligently or with intent;
9.2.2. development, distribution or use of any device or program designed to breach or overcome the security measures, products and/or the Structure of, on or available through the Hupu App; and
9.2.3. the commission of any of the offences detailed in Sections 85 to 88 of the Act.
9.3. Users are encouraged to report and provide proof of defamatory, untrue, inaccurate, unlawful and/or harmful content (" undesirable content ") on or through the Hupu App to Hupu, which undertakes to correct and/or remove such content as is reasonably proven to constitute undesirable content.
9.4. Hupu may provide hyperlinks to websites not controlled by Hupu (“target sites”) and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or features of such target sites.
9.5. Hupu does not editorially control the content, products and/or features of target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use and inability to use content, products and/or features available on or through target sites.
9.6. Subject to the provisions of the Regulation of Interception of Communications Act 70 of 2002 ("the RIC Act"), the User agrees to Hupu’s right to intercept, block, filter, read, delete, disclose and use all communications (including all “data messages” as defined in the Act) sent or posted by the User to the Hupu App or the Hupu website.
9.7. The User agrees and acknowledges that the consent provided by the User in clause 9.6 satisfies the “in writing” requirement as detailed in the Act and the RIC Act.
10.1. These Terms constitute the entire agreement between Hupu and the User and shall take precedence over any disclaimers and/or legal notices attached to any communications and/or postings received by Hupu from the User.
10.2. Any failure by Hupu to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision.
10.3. In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining content. The remaining content shall endure as enforceable and applicable.
10.4. The Hupu App is hosted, controlled and operated from the Republic of South Africa and therefore, subject to the Alternative Dispute Resolution provisions of Clause 4.12 above, this agreement shall be governed by and interpreted according to the laws of the Republic of South Africa.
10.5. Hupu disclaims all liability for any loss, damage or expense however caused, arising from the use of or reliance upon the information provided through the Hupu App and/or the Structure and does not guarantee the completeness or accuracy of the information.
10.6. Hupu’s failure at any time to insist upon strict compliance with any of a User’s obligations under these Terms, or a failure by Hupu to exercise any of the rights or remedies afforded to Hupu, shall not constitute a waiver of such rights or remedies and shall not relieve a User from compliance with such obligations. A waiver by Hupu of any default shall not constitute a waiver of any subsequent default. No waiver by Hupu of any of these Terms shall be effective unless it is expressly stated to be a waiver and is communicated to a User in writing.
10.7. The User acknowledges that its use of the Hupu App, the Structures and its content is at the User’s own risk. Save for liability which Hupu cannot by law restrict or exclude, Hupu shall bear no liability to Users or any third party for any direct, indirect or consequential damages (including loss of profits), or any other any damages of any kind whether based on warranty, contract, delict (including negligence) or otherwise.