Terms of Service

01

Introduction

These are the general terms of our relationship with you. They cover any transactions where we provide services to you. Under these terms:

  • we are the service provider – Bettr Proprietary Limited (registration number: 2017/387049/07), also known as "Bettr"; and
  • you are the customer – a user of the Bettr website, mobile app or customer support channels.

An order is a separate document or form that contains the commercial terms of each specific transaction and incorporates these terms.

02

Agreement

2.1. Composition. The agreement consists of these terms of service, our privacy notice, account terms and conditions and any other specific terms applicable to the services.

2.2. Definitions. In the agreement:

  • business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in South Africa;
  • business hours means our normal business hours on business days;
  • day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;
  • sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives;
  • we, us, or our means our organisation, the owner of the website and includes our officers, agents, employees, owners, co-brands, and associates where the terms limit or exclude our liability;
  • writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email; and
  • you or your means any visitor to or other person who accesses or uses the website or mobile app, including any other person, website, business, or agent (including any virtual or robotic agent) associated with the visitor.

2.3. Interpretation. The following rules apply to the interpretation of the agreement:

  • reference headings – clause and sub-clause headings are for reference only and do not affect interpretation;
  • non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’,‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
  • undefined words or phrases – all words or phrases that the agreement does not define have their ordinary English meaning;
  • enactment references – references to any enactment include it as re-enacted, amended, or extended;
  • person references – references to a person includes a natural and juristic person;
  • party references – references to a party includes their successors or permitted assigns;
  • number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
  • no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
  • time calculations – the parties will use GMT +2 to calculate any times.

2.4. Conflict. If there is a conflict of meaning between these terms and any word or phrase in an order or other specific terms, the meaning in the order or specific terms will prevail in respect of the relevant services.

03

Duration

3.1. Commencement. These terms start whenever you accept them by:

  • doing so explicitly – such as by checking a checkbox saying that you do or agreeing to an order that incorporates them by reference;
  • using the services in any way– such as by accessing them; or
  • exercising any rights granted to you under the agreement;

and continue until terminated.

3.2. Automatic renewal. If an order involves a subscription, the agreement will continue automatically from the end of the initial term or subsequent automatic renewal period for an automatic renewal period equivalent to the initial term.

3.3. Renewal termination. Either party may terminate the agreement before the end of the initial term or subsequent automatic renewal period by giving the other party at least 30 calendar days prior written notice.

04

Orders

4.1. Placing orders. You place orders with us whenever you order or start using the services through the website or application. These orders are offers to us to buy our services or partners’ services.

4.2. Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.

4.3. Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.

4.4. Cancellations. We may cancel any order, but we will refund any money you have paid in relation to that particular order if we do.

4.5. Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.

4.6. Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.

05

Services

5.1. Right. We grant you a right to use the services subject to the following limitations:

  • duration of agreement – you may only use the services for the duration of the agreement;
  • limited to terms – you may only use the services according to these terms;
  • non-exclusive – we may allow anyone else to use the services
  • non-transferable – you may not transfer the right to anyone else; and
  • specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.

5.2. Breach. We may cancel your right if you breach the agreement.

06

Online services

6.1. Basis. We provide the online services to you on the following basis:

  • you give us permission to monitor how you use them for security and stability purposes; and
  • you agree that our records are undisputed evidence of the services provided to you.

6.2. Access conditions. We will only provide online service access to you on the conditions that you will:

  • accurately provide us with any information that we ask for on registration or account creation;
  • create or have the necessary credentials (such as a username and password) assigned to you on registration or account creation;
  • look after your credentials and not give them to anyone else;
  • not interfere with or introduce any malicious software into the online services or otherwise misuse them;
  • be responsible for any activity that happens under your account;
  • have the necessary infrastructure, equipment, and software to access the online services; and
  • abide by the agreement and any policies or notices that we communicate to you in writing.

6.3. Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.

07

Your data

7.1. Definition. Your data is any data belonging to you and those transacting with you that:

  • you (or those transacting with you) provide to us; or
  • we generate, process, or supply to you and those transacting with you in providing the services;

but excludes any derived data that we create for our own purposes, or which is proprietary or confidential to us or our third party vendors, contractors and partners.

7.2. You own it. You own your data, but give us right to use it to provide the services when you provide us with access to it.

7.3. We do not own it. We do not own your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.

7.4. Responsibility. We take the protection of your personal information seriously and will always do our best to protect it, including our best to:

  • comply with all relevant laws that affect your data, including data protection, retention, and destruction laws;
  • comply with our Privacy Notice;
  • have due regard to leading industry information security management codes of practice, where appropriate;
  • suitably qualified individuals to oversee compliance with relevant data protection laws;
  • not sell, dispose of, or encumber any of your data or try to do any of those things;
  • be able to identify any of your data separately from any other data under our control; and
  • not disclose any personal information from your data, other than in terms of the agreement.

7.5. Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that we:

  • do so only through a written agreement with the subcontractor which imposes the same obligations on them as are imposed on us; and
  • remain fully liable for any processing of your data under the agreement by our subcontractor.

7.6. Location. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services. We will otherwise ask for and get your consent before doing so to the extent that applicable law requires.

7.7. Email communication. We agree to comply with all relevant direct marketing laws and remove any person from our direct market mailing list who indicates, in writing, that they do not wish to receive further electronic communication from us.

08

User content

8.1. Definition. User Content is content created by or belonging to you including but not limited to videos, audio (for example music and other sounds), graphics, photos, text (such as blog posts) and branding (including trade names, trademarks or logos) that you submit to us through use of the Service.

8.2. Submission. You may submit to us content subject to the below terms:

  • Acceptable User Content. You may not submit any User Content to us which does not comply with this Agreement or does not comply with the law and licences governing such User Content.
  • Rights. You retain the ownership right to User Content you submit to us.
  • License. By providing User Content to Bettr through use of our Service, you grant to us a worldwide, non-exclusive, royalty-free, transferable, sub-licensable licence to use that User Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, marketing and improving the Service.
  • Warranty and indemnity. You warrant that, to the best of your knowledge, you have all rights, including all intellectual property rights, necessary to lawfully license the User Content to Bettr. You agree, to the extent necessary, to indemnify us against any actions a third-party may bring as a result of such submission.

8.3. Duration. The duration of the licence you grant to us shall continue:

  • until the User Content is removed by either us or you (we reserve our right in this regard and any decision made by us will be final), or
  • until the point we choose to terminate the licence to such User Content should you breach the agreement.

09

Confidential information

9.1. Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details

9.2. Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

  • protect the other party’s interests;
  • only use it to comply with their responsibilities under the agreement;
  • only give it to their employees or agents that need it (and only as much as they need);
  • use reasonable security procedures to make sure their employees or agents keep it confidential;
  • get promises of confidentiality from those employees or agents who need access to the information;
  • not reveal the information to anyone else; and
  • not use it for any purpose other than under this agreement.

9.3. End of agreement. The parties will giveback to the other all confidential information of the other that they have at the end of the agreement, unless:

  • the other party agrees that they may destroy or retain it instead; or
  • it is lawfully in the public domain;
  • someone else who is allowed to reveal it gives it to them;
  • someone gives it to them to comply with a court order or other legal duty.

9.4. Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.

9.5. Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

10

Intellectual property

10.1. Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.

10.2. Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.

10.3. Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.

10.4. Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

10.5. Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.

11

Fees and payment

11.1. Fees and Service Charges. Fees and service charges agreed between the parties in writing, will be deducted from your account when due.

11.2. Account Balance. You are required to maintain a positive balance in your account. In the event that your account becomes overdrawn, you must transfer funds into your account as soon as possible to restore a positive balance and additional penalty charges as agreed between the parties will apply. We may stop providing any services until you have paid all amounts due.

11.3. Interest. Overdrawn accounts will bear interest for our benefit at whichever rate is higher between:

  • 2% above the prime (or prime lending) rate; or
  • 15%.

Interest will be payable on a claim for damages from when the damages were suffered.

11.4. Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.

11.5. Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.

11.6. Tax. All fees exclude any tax (unless indicated otherwise), which you will pay where applicable in addition to the fees.

11.7. Payment profile. We may provide any registered credit bureau with information about your payment of amounts.

12

Our warranties

12.1. Service warranties. We warrant that we will:

  • employ enough trained personnel with the knowledge and expertise to provide the services;
  • use reasonable efforts consistent with prevailing industry standards to maintain the services; and
  • provide the services in accordance with all applicable laws.

12.2. General warranties. We warrant further that we:

  • have the legal right and authority to perform our obligations under the agreement; and
  • will not knowingly introduce any malicious software into your systems.

13

Disclaimer of warranties

13.1. Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause.

13.2. Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

14

Your warranties

14.1. Agreement warranties. You warrant that:

  • no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
  • you are not breaching of any other agreement by entering into the agreement.

14.2. Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

15

Limitation of liability

15.1. Direct damages limited. We are only liable to you for any direct damages that the services may cause up to the total amount of fees that you have already paid us for them.

15.2. Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.

15.3. Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

15.4. Survival. This clause about limitation of liability is separate from the rest of this agreement and remains valid after the end of this agreement to the extent allowed by applicable law.

16

Breach and suspension

16.1. Breach. If either party:

  • does not fix a breach within seven days of receiving written notice from the other party;
  • breaches the agreement materially twice or more in six months;
  • is bankrupt or has some legal disability;
  • takes steps to or is closed down (such as becoming insolvent or entering sequestration);
  • makes any settlement or arrangement with their creditors; or
  • fails to pay a court order against themselves for a significant amount within 21 days;

then the other party may:

  • make the party comply with the agreement; or
  • immediately cancel the agreement in writing and claim damages from the other party, including fees already due.

16.2. Suspension. We may immediately suspend your right to use the services if:

  • you try to gain unauthorised access to them;
  • we decide that your use poses a security threat to us, you or another user other than you;
  • there is evidence of fraud on your account; or
  • we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.

17

Termination

17.1. Termination for good cause. We may need to terminate the agreement immediately if:

  • we discontinue or stop providing the services;
  • believe providing the services could burden or pose a risk to us;
  • have to terminate to comply with a law; or
  • determine that providing the services has become impractical.

If we need to terminate, we will give you as much notice as reasonably possible in writing.

17.2. Termination for convenience. You may terminate the agreement or a specific order immediately on written notice to us. We will process and confirm your request within 2 business days of receiving written notice.

17.3. Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.

18

Effect of termination

18.1. Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.

18.2. Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but we are not obliged to.

18.3. No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.

19

General

19.1. Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognised and appropriate forum for arbitration that is accessible to both parties.

19.2. Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

19.3. Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.

19.4. Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

19.5. Relationship. The agreement does not create an employment relationship between the parties.

19.6. Entire agreement. The agreement is the entire agreement between the parties on the subject.

19.7. Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future services ordered. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

19.8. Waiver. Any favour we may allow you will not affect any of our rights against you.

19.9. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

19.10. Governing law. South African law governs this agreement.

19.11. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).

19.12. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

19.13 Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.