Sakeng Member Agreement

 

Between the SAKENG MEMBER and SAKENG EMPORIUM (PROPRIETARY) LIMITED with registration number: 2018/597677/07, with its principal office situated at Midridge Office Park North, corner New and 6th Road, Midrand, Gauteng,1685, with its chosen email address as service@sakeng.co.za.

This Agreement contains our standard terms and conditions. When you accept the terms and conditions on the downloaded Sakeng Platform and enter your one-time pin sent to the nominated number, you will be asking us to give you access to our Products and/or Services on the terms of this Agreement. This will then constitute a binding agreement between us. By using the Sakeng Platform you agree that you have read and understood the terms and conditions of this Agreement and you acknowledge that these terms and conditions in their entirety shall apply to you.

We reserve the right to amend, modify, update and change any of the terms of this Agreement and any Schedules that may be uploaded onto the Sakeng Platform from time to time. You will be notified via the Sakeng Platform of any material changes to the Agreement and Schedules that may affect your legal rights as a Member. It is your responsibility to regularly check these terms and make sure that you are satisfied with the changes. Your continued use of the Sakeng Platform will be deemed to constitute acceptance of such changes.

1. In this Agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings–

1.1. Definitions

1.1.1. “Agreement” means these Sakeng Emporium standard terms and conditions together with any Schedules that may be uploaded onto the Sakeng Platform from time to time;

1.1.2. “Business days” means all days, excluding Saturdays, Sundays and public holidays. When calculating business days, one must exclude the first day on which the event occurs and include the last day;

1.1.3. “Personal information” means the documents and information which we may request from you including but not limited to your name, address, contact details, identity number, passport number, proof of residence, card or banking details;

1.1.4. “Customer Services department” means the customer care centre with contact number as follows 0860 Sakeng (725364), or 135 free from your phone;

1.1.5. “Card” means a barcoded or virtual card that is integrated into the Sakeng Platform;

1.1.6. “Date of Transaction” means any date reflected on any official receipt issued by the POS or the Sakeng Platform for payment;

1.1.7. “Effective Date” means the date of execution of this Agreement by you accepting the terms and conditions on the Sakeng Platform;

1.1.8. “Intellectual property rights” or “Intellectual property” means collectively, the patents, copyrights (and moral rights), trademarks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, know-how, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same) which are owned by, licensed to, used and/or held (whether or not currently) by us on or in connection with our website or our Services or the network;

1.1.9. “Members” means any active Sakeng Emporium Members and means a person interacting with a Sakeng Partner to access any of the Products/Services provided via the Sakeng Platform;

1.1.10. “Network” is the digital mobile phone network and/or the wireless platform for internet services in South Africa that allows you to receive or use our Services.

1.1.11. “Operating Procedures” means the procedures as prescribed and amended by us from time to time relating to the Sakeng Emporium operational procedures, point of sale posters, brochures, application forms and any other administrative procedures;

1.1.12. “Operating Instructions” means any procedures, rules or instructions, verbal or written and amendments thereto, as made, from time to time, by the Emporium, relating to the operation, use or maintenance of Equipment and software platforms;

1.1.13. “Products” mean the services which we from time to time specifically authorise you to use under this Agreement as described and outlined on the Sakeng Platform, subject to your acceptance thereof;

1.1.14. “Referral code” means the unique pin issued to you upon sign up on the Sakeng Platform;

1.1.15. “Rates” means the price charged by us for Services rendered and/or Products delivered to you;

1.1.16. “Sakeng Partner” means an entity using our Products and Services to engage with their customers who are active and participating Sakeng Members;

1.1.17. “Sakeng Platform”” means the deliverable software and products developed and offered by us via the Sakeng Platform and the Sakeng website;

1.1.18. “Security access” means your password, username, identity number, security questions and Authorisation PIN;

1.1.19. “Service” means the digital electronic communications service, network services, internet services and other electronic communications services that we and other third-party providers provide to you over the network as described and outlined on the Sakeng Platform, subject to your acceptance thereof;

1.1.20. “Sakas” means the instrument held by you which entitles you to a share of any surplus benefits that may be distributed to our Members from time to time;

1.1.21. “Schedules” means any Schedules that may be uploaded onto the Sakeng Platform from time to time and which Schedules form part of this Agreement;

1.1.22. “the Parties” means the Emporium and the Sakeng Member;

1.1.23. Use the Sakeng Platform” means to load the Sakeng Software into and store and run them on your devices , in accordance with the terms of this Agreement;

1.1.24. “us”, “our” and/or “we” means Sakeng Emporium who renders the Services and/or delivers the Products;

1.1.25. “you” and/or “your” means you the Sakeng Member who applies for and receives service from the Emporium.

1.2. Any Schedules that may be uploaded onto the Sakeng Platform from time to time form an integral part of this Agreement and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such Schedules. The Parties agree that:

1.2.1. the terms of this Agreement shall apply to each and every Schedule which the Parties may enter into as if the terms of this Agreement were incorporated in such Schedule;

1.2.2. the conclusion of further Schedules shall create separate agreements between the Parties;

1.2.3. should any separate Schedule which has been created in terms hereof, be terminated by the Parties in terms of the provisions of this Agreement, the Parties will continue to fulfil their respective obligations to one another in respect of any other separate Schedules created in terms hereof and the terms of this Agreement will remain in force in respect of such separate Schedule so created;

1.2.4. the termination of any of the Schedules to this Agreement shall not affect the validity of this Agreement or any other Schedules concluded to this Agreement; and

1.2.5. to the extent that there is any conflict between the Schedules to this Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail.

1.3. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate;

1.4. If any provision in a definition in this Agreement is a substantive provision conferring rights or imposing obligations on the Parties, notwithstanding that it is only in the definition (interpretation) clause of this Agreement, effect shall be given to it as if it were a substantive provision in the body of the Agreement;

1.5. This Agreement shall be binding on the estates, executors, administrators, liquidators, trustees or permitted assigns of the parties as fully and effectually as if they had accepted this Agreement in the first instance and reference to any party shall be deemed to include such party’s estate, executors, administrators, trustees, permitted assigns or liquidators, as the case may be;

1.6. In this Agreement the word “including” shall mean “including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word”, and the word “include” and its derivatives shall be construed accordingly;

1.7. The validity, construction and performance of this Agreement shall be governed by the laws of the Republic of South Africa.

2. Sakeng and its Services

2.1. Sakeng is a community based initiative;

2.2. The Sakeng Platform facilitates interaction between the Sakeng Partners and the Members and provides various tools to enhance your experience as a consumer;

2.3. We provide the following services to our Sakeng Members, the below list is not exhaustive and may be amended from time to time:

2.3.1. Use Sakeng Emporium card for Member identification;

2.3.2. Monitor Member visits to store or facility by registering store visits;

2.3.3. Reward Members for things like spend, product support, regular visits etc. via vouchers or product coupons.

2.3.4. Redeem Sakeng vouchers and coupons at Point of Sale;

2.3.5. Submit slip details to be stored in Member’s slip vault, no need to print slips for Members that opted in for this service;

2.3.6. In store messaging via the Sakeng Platform;

2.3.7. Push promotions and advertisements to Members that opted in for the service;

2.3.8. Push surveys and service rating questionnaires to Members who opted in for the Service;

2.3.9. Run lucky draw competitions based on several templates;

2.3.10. Enable Product manufacturers to reward Members based on detailed spend records;

2.3.11. Product manufactures can educate Members on various aspects of the Products;

2.3.12. Purchase of virtual goods on the Sakeng Platform;

2.3.13. Manage various voucher types on a single platform;

2.3.14. Subscribe to various services, rewards programs and organisations via a single platform.

3. Terms of use

3.1. We hereby agree to supply, and you hereby agree to make use of certain selected Services and Products on the Sakeng Platform;

3.2. The Sakeng Platform and its functionality is available to the community free of charge. However, your mobile network operator may charge you to access the Sakeng Platform and you will be responsible for these charges;

3.3. You may subscribe to various add-on Sakeng and other 3rd party services on the Sakeng Platform. The fees for these services will be shared with you during the subscription process. The fees are subject to determination and amendment from time to time by the party offering the relevant service;

3.4. We will provide you with the detailed terms of use for each selected Service or Product upon request. All additional terms of use must be read in conjunction with this Agreement;

3.5. You will be required to password protect the Sakeng Platform on your device/s and ensure that the password remains confidential. It is your responsibility to ensure that the password is secure and that the Sakeng Platform can’t be accessed by unauthorised third parties. You hereby indemnify us should you forget the password, and/or negligently or otherwise make the password known to unauthorised third parties and such third-party;

3.6. We may also use facial recognition technology for fraud prevention during certain high risk transactions;

3.7. You undertake to keep your personal account information up to date;

3.8. The Customer Care Number (086 072 5364) is for the purpose of technical support between the hours of 07h00 and 18h00 Monday to Friday and 08h00 to 12h00 on Saturdays.

3.9. The procurement and maintenance of Network connectivity is solely your responsibility. We do not accept any responsibility for the lack of connectivity by any Sakeng Partner or any Member;

3.10. If you make use of the Sakeng Platform you agree with the license agreement;

3.11. Any request received by you as selected via the automated order service shall be deemed to be duly authorised and valid;

3.12. The parties will comply with their obligations in terms of this Agreement and the parties will act in good faith in the exercise of its rights and powers under this agreement and shall do its utmost to avoid bringing the name of the Emporium into disrepute;

3.13. The parties won’t use the service (i) unlawfully; or (ii) for an unlawful or abusive purpose; or (iii) to access or send anything unlawful; or (iv) knowingly or carelessly allow any other person to do so. Examples of such unlawful or abusive use include, for example, infringing another person’s rights, defaming another person, doing anything which may reasonably be considered to be offensive, abusive, discriminatory, indecent or a nuisance, sending spam, hacking, phishing or transmitting anything which contains viruses or other software, code, programmes or files which may damage any software or equipment;

3.14. You agree not to abuse the service, won’t use the service in such a way as to interfere with other Sakeng Members use of the service or jeopardise the operation of the network or knowingly or carelessly allow any other person to do so;

3.15. By using the Sakeng Platform you warrant that you are 18 (eighteen) years of age or older, if not, you warrant that you have the consent of a parent/legal guardian to enter into these terms and conditions and the parent/legal guardian agrees to be bound to these terms and conditions and to be liable and responsible for you and all the obligations under these terms and conditions or that you have obtained legal status in another manner.

4. Duration

4.1. This Agreement shall commence on the Effective Date;

4.2. This Agreement shall continue indefinitely until terminated by either party as stipulated in Clause 12 of this Agreement.

5. Upgrades and maintenance

5.1. We will be doing maintenance on the Sakeng Platform from time to time and Products and/or Services may be temporarily interrupted;

5.2. We will take all reasonable steps to keep the Sakeng Platform online and available to you but can’t guarantee 100% (one hundred percent) availability due to potential failure of telecommunication lines and unscheduled maintenance.

6. Communication:

6.1. As all transactions are “online”, we require that your device/s be connected to the Internet or mobile network to enjoy the services offered by us;

6.2. All communication with you will be via electronic channels.

7. Payment

7.1. You will register as a Sakeng Member free of charge.

7.2. Funds for the purchasing of any Products or Services such as vouchers must be pre-loaded by you into your prepaid Emporium Account;

7.3. It is your responsibility to ensure that sufficient funds are loaded into your Emporium prepaid Account for the operation and/or purchase of the Products and Services;

7.4. You hereby acknowledge that we may, from time to time, vary the rates, of the Products and Services as set out on the Sakeng Platform;

7.5. You acknowledge that the prepaid Emporium Account is not a bank account or an e-wallet. You will not be permitted to redeem any surplus funds in your prepaid Emporium Account for cash or transfer it back to your bank account. The money in your prepaid account can only be utilised to purchase goods and services offered by Sakeng or a Sakeng Partner.

8. Signing and providing documentation

From time to time it may be necessary for you to sign or provide additional documentation to us in order to unlock further Services and/or Products on the Sakeng Platform. You warrant that all information provided to us is and remains true and correct.

9. Privacy and Personal Information

Our Privacy Policy, which is accessible through the Sakeng App and our Website forms an integral part of this Agreement and it describes how we collect and use your personal information.

10. Intellectual Property

10.1. All Intellectual Property rights subsisting in or used in respect of the Emporiums Intellectual Property are and shall remain our property. You shall not during or at any time after termination of this Agreement acquire or be entitled to claim any right or interest in our Intellectual Property or in any way question or dispute our ownership thereof;

10.2. You acknowledge that our Intellectual Property may only be used by you as specifically authorised in terms of this Agreement, or otherwise authorised in writing by us. Unless expressly stated otherwise, upon termination of this Agreement, you shall forthwith discontinue the use of our Intellectual Property;

10.3. Except as may be necessary to deliver the Services, neither party shall have the right to use, and shall not use, the name of the other party or its logos or trademarks in any manner without the prior written consent of such other party, which consent may be withheld in such party’s sole discretion. Either party shall not issue any public release regarding this Agreement or the Services to be provided hereunder without the consent of the other party, which may be withheld in such party’s sole discretion;

10.4. The provisions of this clause 10 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

11. Indemnity

11.1. The Emporium and/or its directors and/or employees shall not be liable for any loss, claim, action, expense, damage or injury suffered or sustained by you whatsoever and however pursuant to entering this agreement or as a result of its possession of or onward supply to any Member or third party or other Service or other Product whether direct or indirect, consequential or contingent and whether foreseeable or not. In particular, we will not be liable for any financial loss, loss of business, profit, savings, revenue or goodwill suffered or sustained by you however arising;

11.2. You hereby indemnify us against all losses or problems or alleged problems arising from any software installed by us or you on any of your devices;

11.3. The Sakeng Platform is provided “as is”. No warranty or representation is made by us, whether express or implied, in relation to the satisfactory quality, completeness or accuracy of the service offered through the Sakeng Platform;

11.4. Sakeng and its Service Providers take the utmost care to select and employ best practices to secure and protect the Sakeng Emporium platform. Despite this care we cannot make any warranty or representation, whether express or implied, that the Sakeng Platform is free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, mobile device, network, hardware or software in any way. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, mobile device, network, or hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of the Emporium, its employees, agents or authorised representatives. We thus disclaim all liability for any damage, loss or liability of any nature whatsoever arising out of or in connection with your access to or use of the Sakeng Platform.

11.5. The provisions of this clause 11 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

12. Termination and Suspension

12.1. You are free to terminate your use of the Sakeng Platform at any time by deleting your profile and uninstalling the Sakeng Platform;

12.2. You will forfeit the funds that are held in your prepaid Emporium account should you uninstall the Sakeng Platform or delete your profile from the Sakeng Platform before all the prepaid funds are utilised. We will not refund any prepaid funds held in the prepaid Emporium account due to termination of the Agreement by you. It is important that you make use of all the funds in your prepaid Emporium account before electing to terminate your usage thereof;

12.3. We reserve the right to terminate or suspend this agreement without any prejudice to any claims for damages or otherwise that we may have against you if or should:

12.3.1. You breach these terms and conditions;

12.3.2. Use by you would cause a real risk of harm or loss to us or other Members.

12.4. Upon termination of this Agreement for any reason, you shall cease to make use of the Services and/or Products received via the Sakeng Platform.

13. Resolution of Disputes:

13.1. Any dispute, question or difference arising at any time between the Parties to this Agreement out of or in regard to-

13.1.1. any matters arising out of; or

13.1.2. the rights and duties of any of the Parties hereto; or

13.1.3. the interpretation of; or

13.1.4. the termination of; or

13.1.5. any matter arising out of the termination of; or

13.1.6. the rectification of;
this Agreement shall if disputed by you, must be addressed via email to service@sakeng.co.za in order to be resolved without the need for formal dispute resolution. If the matter can’t be resolved, it will be submitted to and decided by mediation and arbitration. Such arbitration shall be held in Johannesburg in accordance with the provisions of the current rules for Commercial Arbitrations of the Arbitration Foundation of Southern Africa (“AFSA”) (as amended or replaced from time to time);

13.2. The provisions of this clause 13 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

14. Notices and domicilia

14.1. The email address entered by you upon download of the Sakeng Platform, will be considered your domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement. Upon use of the Sakeng Platform, you are communicating with us electronically.

14.2. By registering for the Sakeng Platform and accepting the terms of this Agreement, you consent to receive notices electronically us. We may provide all communications in electronic format and any notice transmitted by email after 16H00 on a Business Day, shall be deemed to have been received, unless the contrary is proved, on the following Business Day.

14.3. Each of the Parties shall be entitled from time to time, to vary its domicilium to any other address in the Republic of South Africa via the Sakeng Platform, which address is a valid electronic address.

15. General

15.1. This Agreement together with any Schedules and annexures constitutes the entire agreement between the Parties relating to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein;

15.2. No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or agreement not to enforce or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties or additional acceptance on the Sakeng Platform of further terms and conditions;

15.3. Except as expressly provided to the contrary herein, each paragraph, clause, term, and provision of this Agreement and any portion thereof shall be considered severable and if for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment or award issued by any arbitrator or court, it shall not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the Parties hereto;

15.4. No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice such Party or preclude such Party from exercising any of its rights in the future;

15.5. No Party may cede or assign any rights or obligations under this Agreement without the prior written consent of the other Party which consent shall not be unreasonably withheld;

15.6. The parties hereto hereby consent and submit to the jurisdiction of the High Court of Johannesburg.