WEBSITE ONLINE SERVICE TERMS: SUBSCRIBER TERMS AND CONDITIONS
ENTERED INTO BETWEEN
LUCID LIFESTYLE SERVICES (PTY) LTD
The headings of the clauses in 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 hereof. Unless a contrary intention clearly appears–
1.1. words importing-
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporated) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely–
1.2.1. “Commencement Date” – means the date from which the Subscriber’s Subscription becomes effective and shall be deemed to be the date on which the Subscription Fee is receipted by LUCID or its appointed agent;
1.2.2. “Confidential Information” – all proprietary and confidential information including, without limitation, all IP, technical information, business information, sales information, product sales plans, marketing and advertising methodologies and strategies, inventions, developments, discoveries, know-how, methods, techniques, formulae, data, processes and other trade secrets and proprietary ideas, whether or not patentable or copyrightable, which may be developed, delivered or communicated by LUCID to the Subscriber from time to time pursuant to this Agreement. Information disclosed in tangible or electronic form may be identified as confidential with conspicuous markings, or otherwise identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information from being treated as Confidential Information;
1.2.3. “Direct Marketing” – means promoting and concluding the sale of LUCID Living, by way of the Website;
1.2.4. “Effective Date” – means the date on which the Subscriber enters into this Agreement;
1.2.5. “Force Majeure Event” – any event beyond the reasonable control of LUCID including any act of God, any act of terrorism, strikes affecting people other than the employees of that Party, fires, floods, power outages, riots, war (whether declared or not), any court order, any requirements of any authority or other competent local authority, and any governmental legislative or administrative action;
1.2.6. “LUCID” – means Lucid Lifestyle Services (Proprietary) Limited (registration number 2007/008656/07), a company incorporated in accordance with the laws of the Republic of South Africa, having its main place of business at 223 Jan Smuts Avenue, Parktown North, Johannesburg, Republic of South Africa;
1.2.7. “LUCID Living” – means the personal financial management & lifestyle service for consumers including the following components: credit advice, debt counselling, financial advice and/or legal advice as proposed and more comprehensively described on the Website;
1.2.8. “Parties” – LUCID and the Subscriber, and the term “Party” shall be construed as a reference to either of them as the context may require;
1.2.9. “Personal and Confidential Information” – means all information in respect of the Subscriber, required by LUCID to conclude this Agreement, which includes but shall not be limited to –
220.127.116.11. identity related information (e.g. names, identity number; passport number etc.);
18.104.22.168. contact information (e.g. residential and work physical and postal addresses; cellphone, home and work telephone numbers; email addresses etc.);
22.214.171.124. demographic information (e.g. age; gender etc.); and
126.96.36.199. banking information (e.g. bank account; credit card number etc.);
1.2.10. “Subscription” – means the agreement, entitling the Subscriber to access LUCID Living;
1.2.11. “Subscription Fee/s” – the fee in respect of Lucid Living, as stipulated on the Website, due by a Subscriber, to LUCID in consideration for being eligible to access LUCID Living; and
1.2.12. “the/this Agreement” – means the Subscriber Terms and Conditions setout herein;
1.2.13. “the Subscriber/s” – means a natural person, authorized under the terms and conditions setout in this Agreement, to access and utilize LUCID Living and who’s Subscription Fees are paid and up to date; and
1.2.14. “the Website” – means the LUCID Living Website www.lucidliving.co.za;
1.3. where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause;
1.4. the expiration or termination of this Agreement shall not affect any of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this
1.5. the rule of construction, that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply;
- COMMENCEMENT AND DURATION
2.1. This Agreement shall commence on the Effective Date and shall continue thereafter for a period of 12 (twelve) consecutive months (“the Initial Period”), provided that the Subscriber’s Subscription Fees are paid and up to date. For clarity, notwithstanding the Effective Date, the Subscriber shall only be eligible to access the LUCID Living service, in terms of this Agreement, from the Commencement Date.
2.2. If neither Party has given notice as contemplated in clause 10 below, this Agreement shall automatically renew indefinitely, on each anniversary date, for successive 12 (twelve) month periods (“the Subsequent Period”) on the same terms and conditions, subject to 2.3: Provided that either Party may terminate this Agreement in any Subsequent Period, which termination shall take effect at the end of that Subsequent Period, by giving the other Party written notice of termination, no less than 30 (thirty) days prior to the end of that Subsequent Period.
2.3. During any Subsequent Period, LUCID shall be entitled, in accordance with 5.4, to amend the Subscription Fees, from time to time.
- APPLICATION OF TERMS AND CONDITIONS
3.1. The legal relationship between LUCID and the Subscriber shall be subject to these Subscriber Terms and Conditions.
3.2. These Subscriber Terms and Conditions may be varied from time to time by LUCID upon written notice to the Subscriber.
3.3. LUCID, shall conclude a legally binding and enforceable contract with the Subscriber, on these Terms and Conditions, through the Website.
3.4. In order to conclude a contract and activate the Subscription, LUCID requires the prospective Subscriber to furnish LUCID, with their Personal and Confidential Information. The Subscriber hereby consents to LUCID receiving their Personal and Confidential Information and LUCID processing the Subscriber’s information in the ordinary course of its business.
3.5. The Effective Date shall be the date on which the Subscriber agrees electronically to enter into this Agreement.
- LUCID LIVING
4.1. The Subscriber, and no other person acting on its behalf, shall be entitled to access and utilization of LUCID Living.
4.2. Each service offering shall be rendered to the Subscriber, in the form and manner described on the Website and is subject to change at the sole discretion of LUCID.
4.3. In respect of the Debt Counseling service, the Subscription Fee does not include the “restructuring fee,” ”after care fee” or any legal fees, but does include the “application fee”.
4.4. The Subscriber undertakes to use LUCID Living only for the purpose intended i.e. personal financial, legal and psycho-social management.
4.5. The Subscriber acknowledges that the services are supplied to it for information purposes only and that any action taken by the Subscriber pursuant to the services being rendered by LUCID is taken at the sole risk of the Subscriber.
4.6. The Subscriber acknowledges that in rendering the services, LUCID shall be divulging its Confidential Information and IP (“LUCID Information”) to the Subscriber. The Subscriber therefore irrevocable undertakes in favor of LUCID, that it shall not –
4.6.1. publish or otherwise reproduce, repackage, modify, adapt, disseminate any LUCID Information, in whole or in part;
4.6.2. transmit, transfer, distribute, re-distribute, copy, sell, re-sell, lease, rent, license, sub-license any LUCID Information, in whole or in part to any third party;
4.6.3. allow any third party to link to the LUCID Information, in whole or in part in any way whatsoever;
4.6.4. store the LUCID Information in whole or in part for subsequent use after termination of this Agreement; and/or
4.6.5. use the LUCID Information, in whole or in part, in any form or manner or by any means whatsoever without LUCID’s express prior written consent.
4.7. Should the Subscriber’s use of LUCID Living breach the provisions of clause 5.7 then, LUCID is entitled, without prejudice to any other rights in terms of clause 11, and without notice to the Subscriber, to suspend the Subscriber’s use of LUCID Living. The Subscriber shall –
4.7.1. remain liable for the payment of all Subscription Fees, notwithstanding the suspension of the services; and
4.7.2. not be entitled to any refund of Subscription Fees already paid.
- SUBSCRIPTION FEES AND PAYMENT
5.1. In consideration for the provision of LUCID Living to the Subscriber by LUCID, the Subscriber undertakes to pay LUCID the Subscription Fees, in advance.
5.2. The Subscriber shall effect payment of the Subscription Fee via the payment gateway provided on the Website.
5.3. The Subscriber shall not be entitled to set off or deduct any amount from or adjust the Subscription Fees due to LUCID under this Agreement by reason of any claim whatsoever. The Subscriber acknowledges that it is not entitled to withhold any payment of the Subscription Fees due to LUCID by reason of any alleged breach of the terms and conditions of this Agreement by LUCID or for any other reason whatsoever.
5.4. LUCID reserves the right to amend or vary the Subscription Fees upon 30 (thirty) days prior written notice of such increase, provided that no such increase in the Subscription Fees shall occur during the Initial Period.
5.5. Should the Subscriber fail to make any payment as envisaged in this Agreement, LUCID shall without prejudice to any other rights that LUCID may have and without notice to the Subscriber be entitled to suspend the Subscriber’s access and use of LUCID Living.
6.1. LUCID (“the Sub-contracting Party”) shall be entitled to sub-contract certain of its rights and obligations, under this Agreement to third parties (“Sub-contractors”) on the same terms and conditions set forth in this Agreement.
6.2. The Sub-contracting Party shall procure that each of its Sub-contractors shall adhere to and observe the provisions of this Agreement as if such Sub-contractor were a party to it and as if the obligations of the Sub-contracting Party under this Agreement were such Sub-contractor’s own obligations, and any act or omission of each such Sub-contractor which would constitute a breach by the Sub-contracting Party under this Agreement if the Sub-contracting Party had so acted or omitted shall be construed and interpreted as a breach by the Sub-contracting Party.
7.1. It is recorded that, by virtue of their association with each other in terms of this Agreement, the Subscriber will become possessed of and will have access to LUCID’s Confidential Information and trade secrets.
7.2. Having regard to the facts recorded in 8.1 and in order to protect the proprietary interests of LUCID in its trade secrets and Confidential Information, the Subscriber agrees to keep confidential all of the trade secrets and Confidential Information that comes within its possession/knowledge from LUCID, for as long as this Agreement continues in force and in perpetuity, after it terminates.
7.3. Accordingly, the Subscriber undertakes that it will not, directly or indirectly –
7.3.1. use, copy, disseminate or in any other manner whatsoever deal with any such Confidential Information; and
7.3.2. divulge or disclose any such Confidential Information to any third party whatsoever;
- INTELLECTUAL PROPERTY RIGHTS
8.1. The Subscriber acknowledges that LUCID is the exclusive proprietor of all IP related to LUCID Living (“LUCID IP”) and the Subscriber’s right to use the LUCID IP is limited to their Subscription, in accordance with this Agreement.
8.2. The Subscriber shall not do or permit to be done any act or thing which will result in the reduction of the value of the LUCID IP or which will detract from such value, or result in the dilution or loss of distinctiveness of the LUCID IP.
8.3. Any and all new IP belonging to LUCID and used from time to time by the Subscriber with the approval of LUCID from time to time shall fall within the definition of LUCID IP for all purposes of this Agreement.
8.4. Notwithstanding anything to the contrary contained in this Agreement, the Subscriber acknowledges and agrees that the LUCID IP and its associated goodwill belongs to and shall always remain vested in LUCID and all use of the LUCID IP shall be deemed to be used by LUCID and shall accrue to the exclusive benefit of LUCID and nothing contained in this Agreement shall be construed as conferring upon the Subscriber any right or interest in the LUCID IP (otherwise than as an authorised user as contemplated in this Agreement).
8.5. All Intellectual Property rights not expressly dealt with in this 8 are reserved.
- LIMITATION OF LIABILITY
9.1. Save as specifically provided in this Agreement, LUCID makes no representations or warranties in relation to LUCID Living.
9.2. LUCID is not liable and will not be liable under any circumstances, for any loss damage, costs, expense or injury (including without limitation direct, indirect, incidental, special, punitive or consequential loss, loss of profit or anticipated savings or damages) which loss, damage, cost, expense or injury was as a result of or which may result from –
9.2.1. the Subscriber’s use of LUCID Living;
9.2.2. any of the information or advice provided by LUCID’s representatives, in rendering LUCID Living;
9.2.3. any information or advice being incomplete, inaccurate or incorrect in any respects;
9.2.4. any mistake, omission, interruption, delay, error, and/or defect whether human or mechanical, occurring in the course of rendering the services to the Subscriber; and/or
9.2.5. any downtime, outage, interruption in or unavailability of the services attributable to any cause whatsoever, including without limitation –
188.8.131.52. repairs and maintenance;
184.108.40.206. any interruption or loss of the services attributable to any other public or private network operator, content provider, database provider, or service provider; and/or
220.127.116.11. any instance of force majeure.
9.3. Any loss, damage, cost, expense or injury for which LUCID’s liability is not excluded in terms of 9.2 above will be limited to direct loss only (not any indirect, special or consequential loss).
10.1. Should either Party breach any provision of this Agreement and fail to remedy such breach within 14 (fourteen) days after receiving written notice requiring such remedy, then the other Party shall be entitled, without prejudice to its other rights in law including any right to claim damages, to cancel this Agreement or to claim immediate specific performance of all of the defaulting Party’s obligations whether or not otherwise then due for performance. Notwithstanding the aforegoing, if the breach constitutes repudiation, the other Party shall not be required to give notice requesting the remedy thereof before cancelling this Agreement.
10.2. If this Agreement is terminated by LUCID in terms of the provisions of clause 10.1, prior to the expiration of the Initial Period or any Subsequent Period, as a result of the Subscriber’s breach of the provisions of this Agreement, the Subscriber shall forfeit any pre-paid weekly Subscription Fees, upon termination of this Agreement.
The provisions of this clause shall however, not in any way limit any other rights LUCID may have against Subscriber in terms of this Agreement or the law.
- FORCE MAJEURE
11.1. If LUCID is prevented from carrying out any of its obligations under this Agreement as a result of a Force Majeure Event, then those obligations shall be deemed to have been suspended to the extent that and for so long as LUCID is so prevented from fulfilling them and the corresponding obligations of the Subscriber shall be suspended to the corresponding extent.
11.2. In the event that obligations hereunder are suspended as envisaged In 11.1 then LUCID shall promptly notify Subscriber in writing of such Force Majeure Event and such notice shall include an estimation of the approximate period for which the suspension in terms of 11.1 will endure (such estimate shall not be binding on LUCID.
12.1. For the purpose of all or any proceedings hereunder the parties consent to the jurisdiction of the magistrates’ court, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1944, provided, nevertheless, that LUCID Legal shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the subscriber consents to the jurisdiction of the said court.
- DOMICILIUM AND NOTICES
13.1. The Parties choose domicilium citandi et executandi (“Domicilium”) for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum, the serving of any process, as follows –
13.1.1. LUCID –
Physical – 223 Jan Smuts Ave.
Facsimile – 011 447 1200
13.1.2. The Subscriber –
The physical address where the Subscriber resides, from time to time, as declared by the Subscriber to LUCID when concluding this Agreement for Subscription.
13.2. Either Party shall be entitled from time to time, by giving written notice to the other, to vary its physical Domicilium to any other physical address (not being a post office box or poste restante) within the Republic of South Africa, and to vary its facsimile Domicilium to any other facsimile number.
13.3. Any notice given by either Party to the other which is successfully transmitted by facsimile to the Addressee’s facsimile Domicilium for the time being shall be deemed (unless the contrary is proved by the Addressee) to have been received by the Addressee on the day immediately succeeding the date of successful transmission thereof.
13.4. This 13 shall not operate so as to invalidate the giving or receipt of any written notice, which is actually received by the Addressee other than by a method referred to in this 13.
13.5. Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the Addressee.
- CESSION AND ASSIGNMENT
14.1. The Subscriber shall not cede any of his/her rights nor delegate any of his/her obligations hereunder.
14.2. LUCID Living shall be entitled to cede and transfer or delegate to any third party at its absolute discretion all or any of its rights or obligations under this agreement
15 WHOLE AGREEMENT AND NON-VARIATION
15.1 This Agreement is the whole agreement between the Parties, who/which acknowledge that they have not been induced to enter into this Agreement by any representations or warranties, other than those set out or contained herein.
15.2 No representations or warranties shall be of any force or effect unless reduced to writing and contained herein.
15.3 No alteration, amendment, variation or consensual termination of this Agreement shall be of any force or effect unless reduced to writing and signed by each of the Parties.
15.4 If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro-non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this Agreement which shall continue to be of full force and effect.
No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.