Blue Label Advance

Terms and Conditions

entered into between

 

Blue Label Distribution (Proprietary) Limited

a legal entity with company registration number 2004/003066/07

or its nominee

(“Blue Label”)

 

and

 

 Customer

(“you”)

whose details were provided to Blue Label during your Application Process with Blue Label.

 

By applying for the Blue Label Advance (“the Services”), you agree to the following terms and conditions: 

 

1. Definitions and Interpretation

 

1.1.  In this Agreement the following terms have the following meanings, namely –

 

1.1.1          Acceptance Date means the date on which this Agreement is accepted by you in the manner contemplated in clause 3.1;

1.1.2          Affiliate means, in relation to Blue Label, any company or legal entity that directly or indirectly controls, or is controlled by, or is under common control with Blue Label (in this regard, “control”, and each variation of that term, means direct or indirect beneficial ownership of at least fifty percent (50%) of the voting stock interest in a company or entity, or such other relationship as, in fact, constitutes actual control) including Blue Label’s Subsidiaries; For the purpose of this Agreement the term “Subsidiaries” shall have the meaning ascribed thereto in Companies Act, No. 71 of 2008, as amended from time to time;

1.1.3          Agreement means these terms and conditions for Blue Label Advance Services and all annexures and schedules attached hereto;

1.1.4          Application Process means the process described in clause 4.1 of this Agreement to enable you to access and use the Services;

1.1.5          Airtime means the means by which a Customer accesses the services of a Network Operator over its network, whether generated by a Pin (“Pinned”) or not/virtually (“Pin-less”) or otherwise;

1.1.6          BLA Account means your account with Blue Label created in terms of this Agreement for the purpose of facilitating pre-payments and/or managing settlements due by you to Blue Label in return for provision of Pre-Paid Product stock via the Services and which indicates, amongst others, the amounts due, owing and payable by you to Blue Label;

1.1.7          Blue Label Advance means the provision / allocation of a limited, temporary and repayable advance of Pre-Paid Product, subject to these terms and conditions, to you and further subject to the Qualification Criteria;

1.1.8          Commencement Date means the Acceptance Date or the date on which the Application Process has been completed and Blue Label has approved your application for Blue Label Advance, whichever occurs last;

1.1.9          Customer means you, a customer of a Supplier and the end-user customer/consumer that purchases the Pre-Paid Product from Blue Label via the Services;

1.1.10       Face Value means in relation to a Voucher, the recommended retail price or rand denomination thereof;

1.1.11       Fees means the Face Value, fees, service fees, Supplier Fees, bearer fees, third party fees, interest and costs as may be more fully set out in Schedule 1 according to which Blue Label will charge you for the Services;

1.1.12       FICA Documentation means all documentation which may be requested by Blue Label from you in order to enable Blue Label to provide the Services to you and to enable Blue Label to comply with its obligations in terms of the Financial Intelligence Centre Act, No. 38 of 2001;

1.1.13       Insolvency Event means in relation to a person, any of the following circumstances: (a) an order or declaration is made, steps are taken, or a meeting of the directors or shareholders of that person is convened to consider the passing of a resolution, or a resolution is proposed or passed, for the business rescue, liquidation (whether provisional or final), winding‑up or deregistration of that person's estate; (b) any business rescue practitioner, liquidator or the like is appointed in respect of that person or any material part of its assets, or that person requests any such appointment; (c) that person is, or becomes insolvent, or commits any act that would, if it were a natural person who were subject thereto, constitute an act of insolvency as described in the Insolvency Act No. 24 of 1936; (d) that person becomes subject to any of the proceedings contemplated in chapter 6 of the Companies Act No. 71 of 2008, including any "business rescue", becomes regarded as "financially distressed" or subject to "supervision", all as defined in chapter 6 of the Companies Act No. 71 of 2008;

1.1.14       Mobile Device means a mobile cellular telephone or other device incorporating an active SIM card used by a Customer to communicate with a Network Operator;

1.1.15       MSISDN Number means the number uniquely identifying your subscription to a Network Operator, assigned to SIM card, which is used on your Mobile Device, and which links your Mobile device to a particular Network Operator’s mobile telephone network;

1.1.16       Network Operator means either Vodacom, MTN, Cell C, Telkom, and any other third-party entity that may provide telephony, voice, data and other services over a telecommunications network;

1.1.17       Personal Information means “personal information” as defined in section 1 of POPIA;

1.1.18       Pin means a series of numbers and/or characters which will allow a Customer access to a predetermined amount of Pre-paid Products offered by the Supplier concerned;

1.1.19       POPIA means the Protection of Personal Information Act No. 4 of 2013;

1.1.20       Pre-Paid Product means either airtime, data and/or electricity or any other goods and services of a Supplier made available by Blue Label to you in terms of the provisions of this Agreement, as may be more fully set out in a schedule hereto;

1.1.21       Process means “processing” as defined in section 1 of POPIA;

1.1.22       Qualification Criteria means the qualification criteria for Blue Label Advance as set out in clause 2.4 below;

1.1.23       Subscriber Charges means the charges that may be applied to Customers by a Supplier to transmit communications and/or data messages via a Mobile Device and/or Network Operator mobile telephone network or any other fees and charges payable by the Customer to a Supplier pursuant to the Services rendered hereunder;

1.1.24       Supplier means either a Network Operator or Utility Provider or any other third-party supplier or Pre-Paid Product made available by Blue Label from time to time;

1.1.25       Supplier Account means your existing account with unique MSISDN Number held with the Network Operator or your exiting unique account number / pre-paid meter number held with the Utility Provider for the purpose of redeeming Pre-Paid Product and/or facilitating pre-payments and/or managing settlements due by you to Blue Label under your BLA Account;

1.1.26       Utility Provider means third-party supplier of any utilities or services, such as electricity, water or the like, from time to time made available by Blue Label; and

1.1.27       Voucher means the mechanism that Blue Label employs to deliver a Pre-paid Product and enable the purchaser thereof to access the goods and services of the Supplier. This may be in the form of a Pin (including “UniPin” for off-line electricity) which is conveyed electronically or printed on paper, which when entered on the Supplier’s system, allows the Customer concerned access to Pre-paid Products, or a Pin-less or virtual mechanism of simply crediting the Customer with access to a prescribed quantity or value of Pre-paid Products or otherwise.

 

1.2           Should there exist any conflict between any of the terms and/or conditions contained herein and any of the terms and/or conditions contained in any Schedule hereto, the terms of the particular Schedule shall prevail at all relevant times.

 

2.      Introduction and Qualification Criteria

 

2.1.         This Agreement creates a legal relationship between you (the Customer) and Blue Label.

 

2.2           Blue Label is not a registered credit provider or a bank and does not conduct the business of a bank, nor the provision of any financial services, in any form whatsoever. Blue Label acts as a conduit for the distribution of third-party supplier Pre-Paid Products.

 

2.3.         In terms of your relationship with Blue Label, you agree that you are not in partnership with Blue Label or an agent of Blue Label and that you have no right or ability to bind Blue Label or incur any obligations or liabilities on Blue Label’s behalf in any manner whatsoever.

 

2.4           In order to qualify for the Services you must, amongst others:

 

2.4.1        Have entered into an agreement with the Supplier, which is currently valid and enforceable;

 

2.4.2        Have your principal place of business or permanent residence within the Republic of South Africa;

 

2.4.3        Have a fully functional Mobile Device connected to a Network Operator mobile telephone network (with sufficient Airtime loaded to your account if applicable);

 

2.4.4        Have a trading/ transactional history with Blue Label or any of its Affiliates for the purchase of Pre-paid Products for a minimum period of 3 (three) months prior to the Acceptance Date;

 

2.4.5        Spend a minimum of R20.00 (twenty Rand) per month on Blue Label or Blue Label Affiliate Pre-Paid Products;

 

2.4.6        Top Up your Supplier Account via Blue Label or via a Blue Label Affiliate or Blue Label merchant at least twice a month within the 3 (three) months preceding the Acceptance Date; 

 

2.4.7        Supply Blue Label at the Acceptance Date with the relevant documentation and details and/or FICA Documentation as may be required from time to time to enable provision of the Services;

 

2.4.8        Successfully complete Blue Label’s credit vetting application processes and procedures prior to the Commencement Date.

 

2.4.7        You may need sufficient Airtime loaded onto you Network Operator account to use the Services. It is and remains your responsibility to ensure that you have sufficient Airtime available at all relevant times to use the Services.

 

 

3.      Acceptance, commencement, duration and termination

 

3.1.  By applying for the Services and accepting this Agreement (by either clicking “I accept” or otherwise) you confirm that you have read and understood the meaning and effect of this Agreement and that you agree to be bound by it from the Acceptance Date. If you do not understand the meaning or effect of any of the clauses contained in this Agreement, you must request that it be explained to you before accepting and concluding this Agreement, by contacting Blue Label’s Customer Information Centre at customercare@blts.co.za  or on 0800 014 942 (toll free).

 

3.2.  This Agreement will become binding and effective on the Commencement Date and shall endure and be valid until terminated in accordance with its provisions.

 

3.3.  You shall be entitled to terminate this Agreement by providing Blue Label with 30 (thirty) days’ advanced written notice of such termination.

 

3.4.  Notwithstanding anything to the contrary contained herein and in addition to any rights and/or remedies which Blue Label may have in contract or in law, Blue Label shall, at all relevant times, be entitled to terminate this Agreement at any time and for any reason whatsoever on written notice to you.

 

3.5.  Upon any termination of this Agreement you must immediately cease using the Blue Label Advance Services and any and all outstanding amounts in terms of the Services and/or any other amounts owing by you to Blue Label and/or to Blue Label’s Affiliates shall immediately become due, owing any payable.        

 

4.       Application Process

 

4.1.  In order to use the Services, you will need to complete the Application Process at the Acceptance Date, which is as follows –

 

4.1.1        Step 1: Dial *130*6266# from your Mobile Device and follow the USSD commands. On the Acceptance Date and should you meet the Qualification Criteria, you can apply to Blue Label for Blue Label Advance Services by agreeing to and complying with these terms and conditions (by either clicking “I accept” or otherwise);

4.1.2        Step 2: On the Acceptance Date you must provide all necessary and requested documentation and details to Blue Label, including but not limited to your MSISDN Number and if applicable FICA Documentation, proof of address, Identification number, passport number and/or a copy of your identification document or passport or permanent residence permit;

4.1.3        Step 3: Blue Label and/or its Affiliates and/or its duly authorized third party service provider(s) will conduct various checks on you (including but not limited to a verification and credit history / vetting check) to determine whether it can approve your application for the Services. By agreeing to these terms and conditions you give your explicit and informed consent for Blue Label and/or its Affiliates and/or its duly authorized third party service provider(s) to Process your Personal Information;

4.1.4        Step 4: Upon completion of these checks as described in Step 3, Blue Label will notify you as to whether or not your application has been approved or declined;

4.1.5        Step 5: Should your application be approved / successful you must duly complete and/or sign all necessary documentation as may be required by Blue Label ;

4.1.6          Step 6: Blue Label will notify you in writing or via direct message (SMS) that the Services have been activated and that same is available for use.

 

4.2.  You will receive a conformation SMS:

 

4.2.1               When your BLA Account has been granted/activated and the Voucher has been dispatched;

4.2.2               On successful settlement of outstanding amounts which are due, owing and payable by you to Blue Label in terms of this Agreement; and

4.2.3               to remind you from time to time of outstanding payments.

 

4.3.  Your application for Blue Label Advance is an offer to do business with Blue Label, and Blue Label is entitled to decide whether or not to accept the offer. For this purpose, you expressly authorise Blue Label to perform credit and regulatory checks on you, your business and/or any other principal, partner, proprietor, or owner of your business and to Process any and all Personal Information submitted by you. You further expressly authorise Blue Label and hereby provide your informed consent for Blue Label to obtain any and all of your relevant Personal Information from the Supplier to enable Blue Label to comply with FICA and/or to enable Blue Label to enforce its rights under this Agreement. 

 

4.4.  You can commence using Blue Label Advance and/or the Pre-Paid Product via the Services from the date on which you have received confirmation of activation from Blue Label as contemplated in clause 4.1.6 (Step 6).

 

4.5.  Please note that should you change your Network Provider, Utility Provider, MSISDN Number, address, dispose of your business (in any way), or if there is any change in Supplier or to the authorised account holder, any principal, partner, proprietor, or owner of your business, this will mean that –

 

4.5.1               you will have to inform Blue Label in writing of this change and resubmit any relevant FICA                                                            Documentation;

4.5.2               your access to the Services will be suspended and you will have to settle any outstanding amounts due owing and payable to Blue Label; and

4.5.3               you will have to complete the Application Process again, as set out in clause 4.1 to receive the Services rendered by Blue Label.

 

5.      Services rendered by Blue Label and Maximum Limit

 

5.1.  The Services provided by Blue Label to you under these terms and conditions are the following, namely –

 

5.1.1               Blue Label Advance;

5.1.2               Any other services of Blue Label or its Affiliates in relation, whether directly or indirectly, to Blue Label Advance as may be introduced by Blue Label or its Affiliates from time to time (including but not limited to credit vetting, direct marketing and/or customer and technical support).

 

5.2    Subject to the provisions of clause 5.5 below, Blue Label may from time to time in its sole and absolute discretion determine the maximum Blue Label Advance amount for which you may qualify for in terms of the Services (“Maximum Limit”).

 

5.3     Subject to clause 5.4 below, you may apply for the Services multiple times and in any amount / predetermined denomination of Pre-Paid Product as specified by Blue Label from time to time, provided that the total amount of Blue Label Advance must not and will not exceed the Maximum Limit at any time and/or under any circumstances.

 

5.4     You will not be able to apply for a new facility if a previous authorized facility remains unpaid for more than 1 (one) month or until your BLA Account has been settled in full.

 

5.5     The specific Blue Label Advance amount for which you may qualify (“Limit”) will at all relevant times be determined by Blue Label in its sole and absolute discretion based, amongst others, on the Qualification Criteria. Blue Label’s decision in terms hereof shall be final and binding.

 

5.6     Following the Commencement Date Blue Label may in its sole and absolute discretion on a monthly basis and/or from time to time conduct further credit vetting on you and should same reflect an unfavorable outcome / credit history (including but not limited to any defaults, judgments, over indebtedness, etc) in Blue Label’s opinion, the Blue Label Advance Services will be suspended or terminated. 

 

5.7     Notwithstanding anything to the contrary contained herein you hereby acknowledge and agree that Blue Label may in its sole and absolute discretion suspend or terminate the Services (in whole or in part) at any time and for any reason without notice and without incurring any liability whatsoever.       

 

6.      Payment and Pricing

 

6.1   In return for the Services you shall be obligated to pay to Blue Label and Blue Label shall be entitled to receive the Fees.

 

6.2   In addition to the Fees you shall also be liable to make payment to Blue Label of the Face Value and any and all costs incurred by Blue Label in order to provide you with the Services. These costs may include, but may not be limited to, the costs of obtaining credit reports from registered credit bureaus from time to time and/or to complete the credit vetting process as contemplated in clause 4.1.3 (Step 3) above.

 

6.3   Blue Label reserves the right to change any of the Fees at any time in its sole and absolute discretion. In this event –

 

6.3.1.              in order to keep using the Services, you must agree to the changes in the Fees;

6.3.2.              if you do not agree to the changes in the Fees, you will need to cease using the Services with immediate effect.

 

6.4   Any and all outstanding balances reflected on your BLA Account in respect of the Services and/or Limit or any other amount including, but not limited to, the Face Value sales, Fees, charges, interest, applicable taxes and costs must be settled and paid by you to Blue Label in South African Rand without set-off or deduction within 1 (one) month of date of using the Services. Settlement can be made by way of topping up your Supplier Account or by set-off of the Voucher advance against your next purchase.  

 

6.5   Any and all amounts due, owing and payable by you to Blue Label in terms of this Agreement or any other amount may be deducted /set-off by Blue Label from and/or against any payments/deposits made by you to Blue Label or set-off against or deducted by Blue Label from any amounts payable to you by Blue Label at any time and in Blue Label’s sole and absolute discretion. Such set-off or deduction of payment will be allocated firstly to interest, secondly to costs/Fees and finally to capital.

 

6.6   In the event that your BLA  Account remains in arrears for more than 3 (three) months  or should you default on payment more than 3 (three) times within a calendar month, Blue Label shall, in addition to any other rights or remedies which it may have in contract or in law, be entitled to suspend your BLA Account, the Services, Blue Label Advance and/or access to Pre-Paid Products until such time as all outstanding amounts have been settled and fully paid by you.

 

6.7   In the event of any default in payment by you in terms of this Agreement your Limit and access to the Services shall immediately be revoked for a period of not less than 3 (three) months whereafter and should you meet the Qualification Criteria again, your  Limit may be reinstated.

 

6.8   It is and remains your responsibility at all relevant times to ensure that you use the correct MSISN and/or pre-paid meter number and/or reference number when making any payment(s). Blue Label accepts no responsibility / liability whatsoever for any failure, refusal and/or neglect on your part to comply with these requirements.

 

6.9   If Blue Label must proceed against you for recovery of any amount due by you in terms of this Agreement you agree to pay all costs and expenses, including, without limitation, attorneys’ fees on an attorney and own-client scale, incurred by Blue Label in connection with the collection of all such amounts from you.

 

6.10 In addition to any interest lawfully due, owing and payable by you to Blue Label on overdue payments as set out and agreed to in this Agreement, you shall also be liable to Blue Label for mora interest, calculated at the prescribed rate, from date of demand.

 

6.11 Notwithstanding anything to the contrary contained herein, any and all payments made by you to Blue Label or to any Blue Label Affiliate or to the Supplier to top-up your Supplier Account may be allocated by Blue Label to any amount due, owing and payable by you to Blue Label or to any amount due, owing and payable by you to any of Blue Label’s Affiliates.

 

6.12 Subscriber Charges may be charged to you by the Supplier for using the Services. You shall at all relevant times be solely responsible and liable to pay any and all Subscriber Charges to the relevant Supplier incurred by you for use of the Services.

 

7.      Authorisations

 

7.1     By entering into this Agreement, you –

 

7.1.1.        grant Blue Label a cession in security of the rights and claims in and to your Supplier  Account, for repayment of any obligations due by you to Blue Label in terms of this Agreement or which may be due owing and payable by you to Blue Label in terms of your BLA Account;

7.1.2.        grant Blue Label a right of set-off against all amounts standing to the credit of your Supplier  Account and/or to any amounts payable by Blue Label  to you by Blue Label for repayment of any obligations due by you to Blue Label or any Blue Label Affiliate and/or in terms of this Agreement;

7.1.3.        authorise Blue Label to hold, receive, and disburse all settlement funds on your behalf;

7.1.4.        authorise Blue Label to process your Personal Information (including but not limited to sharing your Personal Information with any third-party service provider or Blue Label Affiliate for the purposes contemplated in this Agreement), in accordance with POPIA and Blue Label’s Privacy Policy (available at https://www.bluelabeltelecoms.co.za/privacy-policy.php ); and

7.1.5.        agree that in the event that there is no amount standing to the credit of your Supplier  Account for repayment of any obligations due by you to Blue Label in terms of this Agreement, Blue Label will have the right to debit your bank account for any outstanding amounts due to Blue Label in order to settle your BLA Account.

 

7.2     In addition to the provisions of clause 7.1 you further hereby duly authorise Blue Label to set off any payment received by Blue Label for subsequent purchases of Pre-Paid Product against any amounts due, owing and payable by you to Blue Label in terms of this Agreement.

 

7.3     To avoid doubt, your authorisations (set out in clauses 7.1 and 7.2) will remain in full effect until your BLA  Account is closed and the outstanding amounts due by you in terms of this Agreement have been settled in full.

 

8.      Transactions

 

8.1.  You agree that you will retain a copy of each Pre-Paid Product voucher and the receipt issued to you by Blue Label for a period of at least 180 (one hundred and eighty) days from the date of the transaction.

 

8.2.  You agree to manage all functions relating to the transactions on your Supplier Account and/or BLA Account and agree to accept all risk connected and or related to managing these functions for as long as you use the Services.

 

8.3.  You will at all relevant times be responsible for any and all activity on your Supplier Account and/or BLA Account. Any instruction received by Blue Label to perform any action on you BLA Account will be deemed to have originated from you until the contrary can be proved by you.

 

8.4.  You shall at all relevant times be liable and responsible for any and all Pre-Paid Product stock loaded issued to you by Blue Label.

 

8.5.  You agree that Blue Label may share the details regarding your transactions with our employees, agents, contractors and service providers for training, research, analysis and operational business purposes.

 

9.      Audit and inspection rights

 

9.1           You agree that you will, at your cost –

9.1.1       establish and maintain, complete and accurate books of account and financial records in relation to the Services and each Pre-Paid Product transaction requested by you and provide same to Blue Label at Blue Label’s request;

9.1.2        provide and submit to Blue Label such further information relating to the Services as Blue Label may require in order to assist Blue Label in the exercise of its rights or the discharge of its duties in terms of this Agreement.

 

9.2           If, at any time, Blue Label has cause to suspect that any fraudulent and/or other illegal activity is taking place (in relation to anything relevant to this Agreement, the Services, any transaction or on any other basis), Blue Label (or its agent) may –

9.2.1.      conduct physical inspections and investigations at your physical address , audit your Mobile Device, Network Operator and/or Supplier records, and/or inspect  any other place that Blue Label may consider relevant; and/or

9.2.2        suspend your access to the Services, on terms determined by Blue Label.

 

10.    Intellectual property rights

 

You agree that any and all rights, title and interest, including but not limited to all rights of ownership and copyright in or to all intellectual property rights including patents, trademarks, service marks, designs, design rights, methodologies, business processes, ideas, copyright (including that in the designs and computer software), source codes, inventions, trade secrets, whether these are registered or not and rights to apply for protection of any of the same (“Blue Label Intellectual Property Rights”) shall continue to vest in Blue Label at all relevant times and you will not, under any circumstances whatsoever, acquire any rights (proprietary or otherwise) in or to the Blue Label Intellectual Property Rights.

 

11.    Confidential Information

 

For purposes of this clause 11 “Confidential Information” means any information or data which by its nature or content is identifiable as sensitive, confidential and/or proprietary to the Disclosing Party and/or any third party, or which is provided or disclosed in confidence and which the Disclosing Party or any person acting on its behalf may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. Disclosing Party's Confidential Information shall include (i) information relating to strategic objectives and planning for both its existing and future needs; (ii) information relating to either Party’s business activities, business relationships, products, services, clients employees and staff; (iii) technical, scientific, commercial, financial and market information and trade secrets; (iv) Intellectual Property Rights that is proprietary to a Party or that is proprietary to a third party and in respect of which the Disclosing Party has rights of use or possession; (v) Disclosing Party’s plans, designs, drawings, functional and technical requirements and specifications; (vi) information concerning faults or defects in either Party’s systems, hardware and/or software or the incidence of such faults or defects; (vii) agreements to which either Party is a party. Confidential Information excludes information or data which (a) is lawfully in the public domain or already in the possession of the Receiving Party from a source other than the Disclosing Party at the time of disclosure to the Receiving Party; or (b) subsequently becomes lawfully part of the public domain by publication or otherwise; or (c) subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such Confidential Information; or (d) is disclosed pursuant to a requirement or request by operation of law, regulation or court order; provided that the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions and provided further that the information disclosed in terms of this Agreement will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party's possession. The determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trade or otherwise.

 

11.1         The Party receiving the Confidential Information from the other Party (“Receiving Party”) acknowledges the importance of the Confidential Information to the Party disclosing the Confidential Information to the other Party (“Disclosing Party”) and, where applicable, third party proprietors of such information, and recognises that the Disclosing Party and/or third party proprietors may suffer irreparable harm or loss in the event of such information being disclosed or used otherwise than in accordance with this Agreement.

11.2         The Receiving Party agrees and undertakes:

11.2.1      except as permitted by this Agreement, not to disclose or publish any Confidential Information in any manner, for any reason or purpose whatsoever without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall also be incumbent on the Receiving Party to obtain the consent of such third party;

11.2.2      except as permitted by this Agreement, not to utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall also be incumbent on the Receiving Party to obtain the consent of such third party;

11.2.3      to restrict the dissemination of the Confidential Information to only those of the employees/staff who are actively involved in activities for which use of Confidential Information is authorised and then only on a "need to know" basis and the Receiving Party shall initiate, maintain and monitor internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure by the employees/staff;

11.2.4      to take all practical steps, both before and after disclosure, to impress upon the employees/staff that are given access to Confidential Information the secret and confidential nature thereof.

11.3         All Confidential Information disclosed by the Disclosing Party to the Receiving Party or which otherwise comes to the knowledge of the Receiving Party, is acknowledged by the Receiving Party:

11.3.1      to be proprietary to the Disclosing Party or where applicable, the relevant third-party proprietor; and

11.3.2      not to confer any rights of whatsoever nature in such Confidential Information on the Receiving Party.

11.4         The Disclosing Party may at any time on written request to the Receiving Party, require that the Receiving Party immediately returns to the Disclosing Party any Confidential Information and may, in addition, require that the Receiving Party furnish a written statement to the effect that upon such return, it has not retained in its possession or under its control, either directly or indirectly, any such Confidential Information or material. Alternatively, the Receiving Party shall, as and when required by the Disclosing Party on written request to the Receiving Party, destroy all such Confidential Information and material and furnish the Disclosing Party with a written statement to the effect that the same has been destroyed. The Receiving Party shall comply with any request in terms of this clause 11.4 within 7 (seven) days of receipt of such request.

11.5         Each Party may retain Confidential Information to the extent required by it in terms of this Agreement or Applicable Law (including but not limited to POPIA), subject to the right of the Disclosing Party to recover the Confidential Information at any time in terms of clause 11.4.

11.6         The Parties record that this clause 11 shall not be applicable where the Receiving Party discloses Confidential Information to attorneys, legal advisers, auditors, credit bureaus and/or verification agencies provided that such disclosure is reasonably required by the Receiving Party for the purposes of conducting its business activities

 

12.    Warranties

 

12.1        You warrant to Blue Label that –

12.1.1     you are at least 18 (eighteen) years of age;

12.1.2     you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement;

12.1.3     the MSISDN number identified by you when you applied for the Services belongs to you and/or if applicable, the name identified by you when you registered is your name or business name linked to your Supplier Account;

12.1.4      you are the authorised Supplier Account holder and that you will inform Blue Label, in writing, if there is any change to your authorised Supplier Account holder status or details and warrant that you will provide any additional FICA-related documentation, as may be required, from time to time;

12.1.5     any transaction submitted by you will represent a genuine transaction performed  by you;

12.1.6     any transactions submitted by you will accurately describe the goods and/or services / Pre-Paid Product and/or the denomination thereof requested by you ;

 

12.1.7     you will, and all transactions initiated by you, will comply with all provincial, national laws, rules, and regulations applicable to you and/or to the Services;

12.1.8     you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and

12.1.9      your use of the Services will be in compliance with this Agreement at all relevant times.

 

12.2. THEREFORE, PLEASE NOTE THAT –

12.2.1. Blue Label shall use its best endeavors to take reasonable steps to ensure that the Services are delivered in accordance with this Agreement and that on discovery of any defects, these are addressed timeously, however, due to the nature of the Services, these are necessarily provided on an “as is” and “as available” basis to the maximum extent permitted by applicable law;

12.2.2. by signing this Agreement, you understand that use of the Services may have certain risks, and that due to the nature of the Services, use of these is at your own risk (please ensure that you guard against these risks appropriately);

12.2.3. to the maximum extent permitted by applicable law, the Services are provided without warranties of any kind;

12.2.4. Blue Label does not warrant –

12.2.4.1. that the Services will meet your requirements;

12.2.4.2. that the Services will be available at any particular time or location, uninterrupted or secure;

12.2.4.3. that any defects or errors in the Services will be corrected; or

12.2.4.4. that the Services are free of viruses or other harmful components.

 

13.    Limitation of liability

 

13.1 To the maximum extent permitted by applicable law, neither Blue Label (or any of Blue Label’s Affiliates) nor any of its third-party service providers (and their respective employees, shareholders, directors, agents, Affiliates and representatives, in whose favour this clause is a third party stipulation, capable of acceptance in writing at any time) shall be liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses, that result from:

13.1.1.            your use of, inability to use, or unavailability of the Services;
13.1.2.            hacking, tampering, or other unauthorised access or use of the Services, your Mobile Device or your   

BLA Account or

any loss or theft of Pre-Paid Product stock;

13.1.3.            errors, mistakes, or inaccuracies of the Services
13.1.4.            even if the alleged liability is based on contract, delict, negligence, strict liability, or any other basis, and

even if Blue Label has been advised of the possibility of such damage.

 

14.    Indemnity

 

14.1 To the maximum extent permitted by applicable law you agree to indemnify and hold harmless Blue Label (including Blue Label’s Affiliates) and its third party service providers (and their respective employees, shareholders, directors, agents, affiliates and representatives in whose favour this clause is a third party stipulation, capable of acceptance in writing at any time) from and against any and all claims from any third parties, for costs, damages (including, without limitation, direct, indirect, extrinsic, special, penal, punitive, consequential or exemplary loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts that arises out of or relates to -

14.1.1              any actual or alleged breach of your warranties or obligations set out in this Agreement, including, without limitation, any breach of applicable law by you;

14.1.2             any transaction submitted by you through the Services and/or use of the Services; or

14.1.3              your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights.

15. Dispute Resolution

 

15.1.       You agree that any dispute that arises in terms of this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) must be dealt with and be formally decided by way of arbitration.


15.2.       For purposes of this clause 15.1–

15.2.1. the arbitration will be held at Sandton, Gauteng;
15.2.2. the arbitration shall be subject to the arbitration legislation for the time being in force in the Republic of South Africa;
15.2.3. the arbitrator will be an impartial admitted attorney whether practicing or non-practicing of not less than 10 (ten) years’ experience appointed by Blue Label;
15.2.4. you agree to keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential;
15.2.5. the arbitrator shall be obliged to give his award in writing fully supported by reasons, and the arbitrator's award shall be final and binding on you and Blue Label; and
15.2.6. the costs of any venue, arbitrator's remuneration, recording, transcription and other costs and expenses ancillary to the arbitration shall be borne by you and Blue Label in equal shares and shall be recoverable, as costs in the cause under the provisions of any award.

 

16.  Breach

 

16.1         Save as otherwise provided in this Agreement, should you commit a breach of any of the provisions of this Agreement, then Blue Label shall be obliged to give you 7 (seven) days written notice to remedy the breach.  If you fail to comply with such notice, Blue Label shall be entitled to:

 

16.1.1       cancel this Agreement in the event that you have committed a material breach; and/or

16.1.2       claim immediate payment and/or specific performance by you or all your obligations in terms of this Agreement and the Schedules attached hereto;

 

in either event without prejudice to Blue Label’s right to claim damages and/or legal costs at an attorney and own client scale from you.

 

16.2         The provisions of this clause 16 are without prejudice to any other rights or remedies which Blue Label may have at law or in terms of this Agreement.

 

16.3         Without in any manner limiting the generality of any rights which exist at common law or otherwise, material breach shall include:

 

16.3.1     the occurrence of an Insolvency Event on your part;

16.3.2      you failing to pay any amount to Blue Label as and when due in terms of this Agreement;

16.3.3      you failing to perform your material obligations as set out in this Agreement which breach goes to the root of this Agreement and is incapable of being remedied by payment in money, or if it is capable of being remedied by payment in money, you failing to pay the amount concerned within 7 (seven) days after such amount(s) have been finally determined and such failure to perform is not corrected within 7 (seven) days of written notification of such failure from Blue Label.

 

16.4         Upon termination of this Agreement for breach any and all amounts due and owing by you to Blue Label shall immediately become payable by you.

 

 

17. Address for Service

 

17.1.       Blue Label nominates the address set out below as the address it will receive all communications required in terms of this Agreement –

Physical: 75 Grayston Drive, Morningside Ext 5, Sandton, 2196, Gauteng

With a copy to:legal@blts.co.za (ATT: Group Legal Counsel)

 

17.2.       You nominate the physical address set out in your application provided in terms of clause 4.1 as the address it will receive all communications/notices required in terms of this Agreement. You may change this address at any time on written notice to Blue Label.

 

18. Governing Law and Submission to Jurisdiction

 

18.1.       This Agreement will be governed at all times by the substantive laws of the Republic of South Africa.

 

18.2.       You agree that any legal action or proceedings arising out of or in connection with the terms of this Agreement and/or use of the Services, whether directly or indirectly, will be brought in any competent court in the High Court of South Africa (South Gauteng Local Division, Johannesburg).

 

19. General

 

19.1.       This Agreement sets out the entire agreement between you and Blue Label relating to our use of the Services and replaces any other discussions, agreements and/or understandings regarding your use of the Services.

19.2.       Blue Label is entitled, at any time, and from time to time, to amend the terms of this Agreement in its sole and absolute discretion. If Blue Label amends the terms of this Agreement, it will immediately take reasonable steps to notify you of the amendments. IT IS YOUR RESPONSIBILITY TO REVIEW AND BE FAMILIAR WITH THE AMENDMENTS TO THE TERMS OF THIS AGREEMENT. All amendments to this Agreement contemplated in this clause will become effective immediately upon same being published.

19.3.       If you do not agree to any amendments to this Agreement as contemplated in clause 19.2, you must –
19.3.1. stop using the Services and settle any outstanding amounts due and owing to Blue Label in terms of this Agreement; and
19.3.2. cancel the Services and/or your BLA Account, before the date on which the amendment becomes effective, as described in clause 19.2.

19.4         You will not be entitled at any time to transfer any of your rights or any of your obligations set out in this Agreement. Blue Label may at any time cede, assign, transfer or make-over any and/or all of its rights and/or obligations in terms of this Agreement to any third party without notice to you.

19.5         Blue Label will, at all times, be entitled to exercise its rights to the fullest in terms of this Agreement, even if it has previously not exercised such rights.

 

 

 

 Schedule 1

 

 

FEE SCHEDULE

 

Maximum Limit / approved Limit:

As determined by Blue Label from time to time

Fee (service fee) to access each Blue Label Advance facility request:

R5.00 (Five Rand) per every R50.00 (Fifty Rand), or part thereof, advanced in terms of the Services

Service Fee:

Bearer costs, third-party costs and deployment- operational and maintenance costs.

 

PRODUCT SCHEDULE

 

Pre- Paid Product

Face Value (Voucher denominations)

Pre-Paid Electricity

R20.00; R30.00; R50.00; R100.00 or Maximum Limit

Airtime

 

 

Voucher terms and conditions:

 

·        Pre-paid Electricity Vouchers cannot be transferred to third parties or to other third-party pre-paid meters.

·        Outstanding payments on Pre-Paid Electricity will be deducted from any subsequent Unipin Electricity recharges.

·        A Pre-Paid Electricity advance will be recorded against the pre-paid meter and MSISDN number.  

·        Ownership in and to a Voucher passes after payment of the Face Value being received by Blue Label and upon the subsequent redemption thereof.