BrandChat End-User Licence Agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENCE AGREEMENT CAREFULLY. BY ACCESSING OR USING BRANDCHAT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE BRANDCHAT.

The BrandChat cloud-based platform, designed to market and promote brands on Wechat, Facebook Messenger, WhatsApp, Telegram & Kik (“BrandChat”) is owned by BrandChat Proprietary Limited (“BrandChat”). The terms and conditions of this end-user licence agreement (“EULA”) apply to your use of BrandChat and do not alter in any way the terms or conditions of any other agreement you may have with BrandChat, its agents, licensees, subsidiaries or affiliates (collectively, “us”, “we”, “our”), except that, where the terms of any such agreement conflict with the terms of this EULA, these terms shall prevail to the extent of such conflict. By using BrandChat, you represent and warrant that you are over the age of 18 and are lawfully able to accept this EULA. If you are using BrandChat on behalf of any entity, you further represent and warrant that you are authorised to accept this EULA on such entity’s behalf, and that such entity agrees to indemnify us for violations of this EULA.

1. Grant of Licence

1.1 Subject to clause 2 below, BrandChat hereby grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sub licensable licence to use BrandChat on the terms and conditions set forth in this EULA.

1.2 You –

1.2.1 accept the licence granted to you in terms of clause 1.1;

1.2.2 are authorised to use BrandChat only for your own business purposes; and

1.2.3 acknowledge that you obtain no rights of ownership of BrandChat whatsoever.

2. Restrictions on Licence

2.1 You shall not –

2.1.1 except to the extent as may be permitted by law, modify, translate or create derivative works based on BrandChat, nor reverse assemble, decompile or reverse engineer BrandChat, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of BrandChat or any files contained in or generated by BrandChat, nor shall you permit, whether directly or indirectly, any third party to do so;

2.1.2 merge or combine the whole or any part of BrandChat or any part thereof with any other software or documentation without the prior written consent of BrandChat;

2.1.3 grant any third party direct access to BrandChat;

2.1.4 use BrandChat to provide an application or bureau service to any third party;

2.1.5 lend or transfer BrandChat or any part thereof to any third party;

2.1.6 sub-license or otherwise transfer the use of BrandChat, whether in whole or in part, to any third party; or

2.1.7 remove, delete or obscure any copyright, trademark or other marks or proprietary notices associated with or generated by BrandChat.

3. Use of BrandChat

You represent and warrant that you will comply with all applicable laws and regulations, including, without limitation, those relating to the Internet, data, electronic communications, privacy, and the transmission of data exported from the Republic of South Africa.

4. Intellectual Property Rights

4.1 You acknowledge that BrandChat is owned by, and all intellectual property rights therein vest in, BrandChat or our respective licensors or third-party content providers and that any unauthorised use thereof is expressly prohibited.

4.2 All elements of BrandChat are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.

4.3 Our logos and any other product or service name or slogan contained in BrandChat are our registered or unregistered trademarks and those of our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of BrandChat or the applicable trademark holder. In addition, the look and feel of BrandChat is the service mark, trademark and/or trade dress of BrandChat and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in BrandChat are the property of their respective owners.

4.4 We reserve the right at any time to change or discontinue without notice, any aspect or feature of BrandChat.

5. BrandChat Warranties

5.1 BrandChat warrants in relation to BrandChat that –

5.1.1 it is entitled to and has the rights necessary to grant the licence contemplated in this EULA; and

5.1.2 BrandChat will substantially comply with its published functional specifications when used in accordance with the terms of this EULA and with any installation and operating instructions, user and support manuals and technical literature pertaining to BrandChat as supplied by BrandChat.

5.2 Save for the above warranties, BrandChat, is provided “as is” and we and our directors, members, employees, content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose. We will not be liable for any damages of any kind arising from the use of BrandChat or the unavailability of the same, including, but not limited to, lost profits and direct, indirect, incidental, punitive, special and consequential damages. The functions embodied on or in BrandChat are not warranted to be uninterrupted or without error. You, not us, assume the entire cost of all necessary servicing, repair or correction due to your use of BrandChat. We make no warranty that BrandChat is free from infection by viruses or anything else that has contaminating or destructive properties.

6. Limitation of Liability

6.1 To the fullest the extent permitted by applicable law, BrandChat shall not be liable for any delay, failure, breakdown, damage, loss, costs, claim, penalty, fine or expense arising from –

6.1.1 your use of BrandChat otherwise than in accordance with the terms of this EULA;

6.1.2 your effecting any changes, modifications or upgrades to BrandChat without BrandChat’ prior written consent;

6.1.3 operator error on the part of you or your personnel, or any fault in any hardware or third-party software supplied by BrandChat or software supplied to or obtained by Customer from any entity other than BrandChat;

6.1.4 the intentional or negligent act or omission of any person who is not a member of BrandChat’s personnel;

6.1.5 your negligence;

6.1.6 the actions or omissions of any telecommunications authority or a supplier of telecommunications services; or

6.1.7 the actions or omissions of any upstream data providers or suppliers of network services (including, without limitation, WeChat); or

6.1.8 any other cause beyond our reasonable control, including the failure or fluctuation of electrical supplies, accidents or natural disasters.

6.2 In no event shall our aggregate liability, whether in contract, warranty, delict (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of BrandChat exceed any compensation you pay, if any, for access to or use of BrandChat.

7. Indemnification

To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold us harmless, as well as our subsidiaries, affiliates, licensors, employees, agents, sponsors, third-party information providers and independent contractors, against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your conduct, your breach or alleged breach of this EULA, your unauthorised use of BrandChat, or your violation of any rights of another.

8. Effect of Termination

On termination, cancellation or expiry of this EULA for any reason, the licence granted to you hereunder shall automatically and immediately terminate.

9. Dispute Resolution and Governing Law

9.1 This EULA will be governed, construed and take effect in all respects in accordance with the laws of the Republic of South Africa.

9.2 Any dispute relating in any way to your use of BrandChat shall be submitted to confidential arbitration to be held in Johannesburg under the rules of the Arbitration Foundation of Southern Africa (or its successor in title), to which arbitration you hereby consent; except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek interdictory, injunctive or other appropriate relief in any applicable court in the Republic of South the Africa, and you consent to exclusive jurisdiction and venue of such courts. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this EULA shall be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise.

10. Miscellaneous Provisions

10.1 This EULA (as varied from time to time in accordance with clause 11 below) constitutes the sole record of the agreement between you and us in relation to your use of BrandChat. Neither you nor we shall be bound by any express, tacit or implied representation, warranty, promise or the like not recorded herein. Unless otherwise specifically stated, this EULA supersedes and replaces all prior commitments, undertakings or representations, whether written or oral, between you and us in respect of your use of BrandChat. Notwithstanding the foregoing, you may be granted access to BrandChat by virtue of a separate written agreement with BrandChat or its permitted licensees. If this applies to you, this EULA must be read in conjunction with such agreement.

10.2 Failure or neglect by us to enforce at any time any of the provisions of this EULA shall not be construed as a waiver of its rights. Any waiver of any provision of this EULA will be effective only if in writing and signed by us.

10.3 If any clause in this EULA is found to be unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.

10.4 Any rights not expressly granted herein are reserved.

11. Changes to EULA

BrandChat reserves the right to change any of the terms and conditions contained in this EULA at any time and in its sole discretion. When BrandChat makes changes, we will revise the “Last Updated” date at the top of this EULA.