These Terms and Conditions hereby constitute, for the purposes of the Agreement, the conditions of usage and service agreement between FeverSafe and the Customer for the use of the FeverSafe platform, the associated Website and Services developed, provided and managed by FeverSafe.
FeverSafe reserves the right to effect, in its sole discretion, amendments to these Terms and Conditions from time to time. FeverSafe shall inform Customers of any amendment to its terms and conditions on the website feversafe.hellothing.com and shall provide a fourteen (14) day notice period before any amendment comes into effect..
FeverSafe is operated and owned by Hellothing (Pty) Ltd.
“Account” shall mean the registered account held by the Customer on the FeverSafe Platform;
“Agreement” shall mean collectively the FeverSafe;
“Customer” (also referred to as; you, your, yours) is the person, company, entity, group or other organisation that is the contracting party entering into the Agreement with FeverSafe for the supply of Services by way of a Customer Account;
If your FeverSafe Customer Account is registered in your name, as an individual or on behalf of an organisation that you represent, you are then deemed to be the Customer. In this instance your personal email address would typically be used and you would administer the Account, Users and Services and be solely responsible for any payment.
If your FeverSafe Customer Account was registered by your company or organisation, then your company or organisation is the Customer. In this instance your company shall nominate a responsible user, who’s email address would be used and will administer the Account, Users and Services. The company shall solely be responsible for any payment.
“Device” shall mean the mobile phone, terminal, tablet, laptop or desktop computer or any other electronic, battery or solar operated device used by the User to gain access to the FeverSafe Platform;
“Google Maps” shall mean the mapping and location service as provided through Google Maps/Google Earth, allowing a User to view and use a variety of content, including map and terrain data, imagery, business listings, traffic, reviews, and other related information provided by Google, its licensors, and users;
“Information” shall mean collectively the Customer Data and Other Information;
“FeverSafe platform” (also referred to as; us, we, our) shall mean Hellothing (Pty) Ltd, the entity that
gathers, handles and manages your information when using the Website or Services;
“FeverSafe” shall mean all the components, websites, portals, the FeverSafe mobile app and all other functionalities as provided through and related to the FeverSafe brand;
“HelloThing” shall mean HelloThing Proprietary Limited, a company registered in the Republic of South Africa with company registration number 1999/019582/07.
“Services” shall mean the FeverSafe mobile and desktop applications, downloaded, activated, used or delivered through the FeverSafe platforms and infrastructure, feversafe.hellothing.com, or any other interaction between the Customer and FeverSafe products and services;
“Service Provider” shall mean the third-party service provider and its relevant network and infrastructure that provides the User with a connection to a mobile network;
“Taxes” shall mean any and all taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction.
“User” shall mean any individual or administrator that has registered, or been pre-registered to use the FeverSafe Platform and Services on the Customer Account.;
“User Account” shall mean the registered account associated with a User as held on the FeverSafe database;
The headings of the clauses of this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify, the terms of this Agreement nor any clause thereof.
In this Agreement::
3.1.1references to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time;
3.1.2 words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
3.1.3 references to a "person" include a natural person, company, close corporation or any other juristic person or other incorporated or unincorporated entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
> 3.2 expressions defined in this Agreement shall bear the same meanings in the Annexures (if and or where applicable) to this Agreement unless specifically defined in the Annexures;
3.3 where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
3.4 any reference to a Party includes a reference to the Party’s authorised representatives, employees, agents or contractors;
3.5 when any number of days is prescribed same shall, unless otherwise specifically stated, be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;
3.6 where words have been defined in the body of this Agreement, such words shall, unless otherwise required by the context, have the meanings so assigned to them throughout this Agreement;
3.7 where any provision contemplates a notice to be given or Agreement to be reached between the Parties, such notice or Agreement shall, unless expressly provided otherwise, be made in writing;
The Customer agrees to be bound by these Terms and Conditions and the Agreement and must ensure that its Users comply with the Terms and Conditions and the Agreement and by agreeing to such the Customer declares that he or she is legally competent by law applicable to the Customer to accept, agree to and enter into this Agreement.
The Customers continued use of FeverSafe Platform and Services, in the event of an amendment of these Terms and Conditions, will constitute acceptance of and agreement to such amendment.
The Customer agrees to inform Users of the Agreement terms and conditions, updates, changes and of any other information relevant to the access or use of the Services including, but not limited to the sharing of Customer Data and Other Information, collectively “Information”.
The Customer is responsible for all Information which should avoid harming or offending other people including but not limited to reputational damage, racism, sexism, deformation of character, harassment of people and or obscene content. FeversSafe reserves the right to revoke access to users who are seen to be in violation of the above paragraph.
FeverSafe grants the Customer a non-exclusive, non-transferable right to use the FeverSafe Platform and Services via a Device.
The Customer may not use or utilise any part of the FeverSafe Platform or its Services in contravention of any applicable Law and or Regulation/s. 4
FeverSafe is not obligated to store or maintain Information held on our Platform or under our control on termination or expiration of the User and or Customer Account and reserves the right to delete all such Information with immediate effect.
The use of a FeverSafe Platform or Service provided by a Third Party Provider to the Customer including but not limited to the User’s local mobile or Wi-Fi or internet service provider will, despite any conditions under which the Third-Party Provider is providing such services to the Customer, be subject to the Terms and Conditions for the purposes of this Agreement.
All copyright, trademarks, patents and other intellectual property rights in any material or content (including without limitation software, data, applications, information, text, photographs, music, sound, videos, graphics, logos, symbols, artwork and any other material or moving images) contained in, or accessible via the FeverSafe services, is either owned by FeverSafe or has been licensed to FeverSafe by the rights owner(s) for use as part of the FeverSafe services.
The Customer will provide true, accurate, current and complete information when registering for an Account, providing information or amendment’s made on the FeverSafe Platform, Website or Services.
The Customer is and will remain at all times responsible for all actions, direct, indirect and or incidental to and or as a result of access to or use of the FeverSafe Platform or Services via the Customer Account independently of whether the access was made by yourself, a User or by a third-party.
The Customer expressly acknowledges and agrees to use any FeverSafe Platform or Service solely for lawful purposes;
The Customer may not, without limitation:
9.1 use and or perform any action on or through use of the FeverSafe Platform or Service for any unlawful purpose;
9.2 intercept or monitor, damage or modify any communication which is not intended for use purposes by the User;
9.3 send any unsolicited commercial communication not permitted by applicable law,
9.4 expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable.
The Customer further to the above, may not use any part of the FeverSafe Platform or Services in any manner that could damage, disable, overburden, or impair any FeverSafe server, or the network(s) connected to any FeverSafe server, or interfere with any other party’s use.
FeverSafe has the sole exclusive right at any time to immediately remove Information and or to terminate any service and/or Account if FeverSafe reasonably interprets the use as in any way fraudulent; criminal; unethical; offensive to others; misuse; and or in other way deemed by FeverSafe as prohibited.
FeverSafe does not make any express warranty regarding the FeverSafe Platform or Services and disclaim any implied warranty, including any warranty of merchantability, satisfactory quality, or fitness for a particular purpose; however, FeverSafe shall endeavour to provide FeverSafe Platforms and Services with minimum disruptions.
FeverSafe cannot and does not guarantee that the FeverSafe Services will always function without disruptions, delay or other imperfections and FeverSafe may choose not to provide service to countries or calling areas at its sole discretion.
FeverSafe is entitled, without any liability, to refuse, restrict, limit, suspend and/or interfere or
interrupt the FeverSafe Platform or Services or any part thereof, without any notice to the Customer for the repair, improvement, and/or upgrade of the service at any time.
FeverSafe will use all commercially reasonable efforts to minimise downtime of the FeverSafe Platform and Services. Should any planned downtime be expected to exceed five (5) continuous minutes, FeverSafe will endeavour to give advance notice of such planned downtime.
The Customer will be liable for payment for the Services and FeverSafe Platform where applicable according to displayed prices and tariffs on the FeverSafe website feversafe.hellothing.com. FeverSafe reserves the right to amend or adapt the rates, fees and manage and or regulate payments or rates with fourteen (14) days notice provided on the feversafe.hellothing.com website.
If the Customer does not wish to accept such adjustment of rates, the Customer and or the User will be entitled to terminate the User and or Customer Account with effect from the date on which the adjustment of rates would become effective.
FeverSafe does not provide refunds on any credit; fees; or other payments done for the access/use of any FeverSafe subscribed services. Payment obligations are non-cancellable, except where expressly stated herein.
In the event of the Customer downgrading a subscription from a paid to a free plan, the Customer will be held responsible and liable for all unpaid fees in respect of the paid plan for the remainder of the subscription term.
The Customer is responsible for paying all Taxes associated with the Website and Services.
Should any government subject any payment for Services to withholding tax, the Customer will be responsible to FeverSafe for the reimbursement of such withholding tax.
If any amount properly due (excluding reasonably disputed amounts in good faith) is not paid within thirty (30) days of the date fixed for payment, FeverSafe will be entitled, without limiting our other rights and remedies, to take any or all of the following actions until payment is received in full; a.) Downgrade the Customer subscription service to a free service b.) Suspend the Customer access and usage of the Platform and Services.
The Customer acknowledges and accepts that the downgrade and or suspension of Services may result in the potential loss of Information.
The Customer shall indemnify FeverSafe for its costs, including reasonable attorney’s fees and disbursements incurred in the process of collecting any unpaid amounts.
14.1 Information ownership
All Information is the sole property of the Customer and FeverSafe has no ownership rights in respect of Customer Data or Other Information. Subject to the terms and conditions of this Agreement the Customer for itself and on behalf of its Users, grants FeverSafe a worldwide, non-exclusive license to access, use, process, transmit, manage, store, copy, display, share and distribute Information, and any Non-FeverSafe Product created by or for the Customer as reasonably necessary to (a) perform its obligations to the Customer in respect of the provision, maintenance and updates to the Services (b) as required by law (c) to manage and maintain infrastructure, including but not limited to, security, support and technical issues (d) as requested by the Customer in writing. The Customer represents
and warrants that it has secured the rights to grant this license in respect of Information.
In respect of the FeverSafe Platform, Website and Services, FeverSafe owns and will retain ownership of all related intellectual property rights. To the extent that the Customer may make use of software components, websites, channels and or apps, FeverSafe grants the Customer a non-exclusive, non-sublicensable, non-transferrable limited license to use the object code version of these components insofar as is necessary to use the Services in accordance with the Agreement.
15.1 Term of Agreement
FeverSafe provides a free service with the option to upgrade to more feature rich paid subscription services. The free service continues until it is either upgraded by the Customer to a paid subscription service or terminated by either party. The paid subscription service continues until it expires or is terminated by either party. Termination of the Customer Account, User Account and or Agreement terminates all free services and paid subscription services.
15.2 Termination Without Cause
Either party may terminate the free service without cause. FeverSafe will provide Customers with thirty (30) days notice of such free service termination. The Customer may terminate free service with immediate effect.
Either party may terminate the paid service without cause with thirty (30) days notice of such service termination.
15.3 Termination for Cause
Either party may terminate this Agreement in the event that the other party has breached any material obligations contained herein, and such breach shall have continued for a period of thirty (30) days after written notice of the breach and the intent to cancel the Agreement has been provided to the breaching party by the non-breaching party. Termination will be effective thirty (30) days following the notice to cancel the Agreement unless the breaching party remedies the breach or disputes, in good faith, the breach within the thirty (30) days notice period in which case the Agreement may not be terminated unless it is determined by arbitration that the this Agreement was materially breached and the breaching party has failed to remedy such breach. 8
FeverSafe may terminate this Agreement immediately on notice to the Customer if we reasonably believe that the Customers are using Services in violation of any applicable law.
15.4 Effect of Termination
FeverSafe may terminate the Agreement for cause and the Customer will be held responsible for paying any unpaid fees covering the remainder of the term of the paid subscription service for the remainder of the subscription.
The Customer may terminate the Agreement for cause and FeverSafe will refund any prepaid fees covering the remainder of the term for all paid subscriptions.
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Arbitration Foundation of Southern Africa, and shall be governed by the Arbitration Act, 1965 or any replacement Act and shall take place in accordance under the Commercial Arbitration Rules of the
Arbitration Foundation of Southern Africa. The number of arbitrators shall be two. The seat, or legal place, of arbitration shall be Cape Town, South Africa. The language to be used in the arbitral proceedings shall be English.
The governing law of the contract shall be the substantive law of The Republic of South Africa.
FeverSafe is not and cannot be held liable for:
17.1 any acts or omissions of another Third Party Provider or third party service provider for information provided through the User Device;
17.2 any equipment failure or modifications;
17.3 service outages or for service limitations or interruptions;
17.4 any accidents or incidents which result from the use of the FeverSafe Platform or any of its Services by the Customer or any other person;
17.5 any direct, indirect, incidental, punitive or consequential damages including inter alia lost profits, other economic loss, death, injuries to persons or property, any losses due to fraudulent behaviour, misuse of information and other criminal activities that are directly, indirectly or coincidently associated with any FeverSafe Platform, Services, representation, offer, product or device, provided directly or indirectly, as part of the package (the FeverSafe Platform or Services) offered to the Customer so arising from the use of the FeverSafe Platform or Services by the Customer and the Customer hereby specifically indemnifies FeverSafe against any claims and or legal actions flowing or resulting from such damages.
17.6 the FeverSafe Platform utilizes Google Maps for its location services. FeverSafe therefor does not guarantee that addresses supplied via the FeverSafe Platform to the Customer in any of its features and Services are accurate and cannot be held liable and the Customer hereby indemnifies FeverSafe against any such liability for any direct, indirect and or co-incidental damages suffered by the Customer or another as a result of usage of the addresses or in the event an incorrect address is provided herein.
17.7 We take security and reliability very seriously and do our utmost to make sure our platforms are failsafe by using best of breed products and adhering to the highest industry practices. However, no system is perfectly secure or reliable, the internet is inherently an insecure medium when you take into account all the third parties involved; your internet provider, wireless carrier, devices used etc. When you use the service, you accept these risks and the responsibility for choosing to use a technology that cannot outperform third parties that are used in providing the service. Services such as Location Sharing rely on third parties providing a reliable service. Therefore we make no warranty, express, implied or otherwise that we can or will be able to guarantee that the service will work 100% of the time. 10
FeverSafe’s liability and the liability of any underlying third party service provider for any failure or mistake shall be limited to and in no event or under no circumstance exceed and is limited to the FeverSafe Services charges during the or any affected period.
FeverSafe reserves the right to and may assign all or part of the Agreement and or Terms and Conditions to any other without such assignment being considered change to the Terms of Conditions and without prior notice of such assignment to the Customer.
FeverSafe in the event of such assignment will be and is released by the Customer from all liability under this Agreement.
The Customer is prohibited from assigning any responsibility and or liability under the Terms and Conditions without our prior written approval.
No latitude, extension of time or other indulgence which may be given or allowed by either Party to any other party in respect of the performance of any obligation hereunder or the enforcement of any right arising from this Agreement is binding unless confirmed in writing, and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or terms hereof.
This Agreement shall be governed by and be construed in accordance with the laws of the Republic of South Africa, and the Parties hereby agree and submit to the jurisdiction of the South African courts.
If any provision or term of this Agreement, including this clause, shall be held wholly or partly invalid, illegal or unenforceable for any reason whatsoever, then those clauses, provisions or terms shall be deemed severable from the remaining clauses, provisions or terms of this Agreement and shall in no way affect the validity, legality or enforceability of this Agreement.
These general Terms and Conditions represent the entire Agreement between the Customer, User and FeverSafe and supersedes all prior offers, contracts, agreements and representations. The Terms and Conditions supersede all promises made to you by FeverSafe client services agents, representatives or employees.