1.1 You must please read this Agreement. The terms and conditions of this Agreement are important and are the basis upon which You, Yoyo and the Retailers will do business with each other.
1.2 While reading the Agreement, You will see that certain selected terms and conditions are in capital letters. These are important but please remember that all the other terms and conditions are also important and must be read as well.
1.3 To print/save a copy of this Agreement click here: Print/Save Agreement. To print/save a copy of any other terms and conditions referred to in this Agreement, click through to the associated link where you will be given an opportunity to print/save them.
In this Agreement, unless a contrary intention clearly appears, the following terms (including their capitalised equivalents when used in clauses that contain capital letters) shall bear the meanings assigned to them and similar expressions shall have corresponding meanings -
2.1 "Agreement" means this agreement with its terms and conditions together with any other terms and conditions referenced by this agreement, including as any of them might be amended from time to time;
2.2 "Beneficiary" means the beneficiary, if any, to whom You transfer a Gift Card which You Purchase, at the time of making the Purchase;
2.3 "Business Day" means any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
2.4 "CPA" means the Consumer Protection Act, 2008;
2.5 "ECTA" means the Electronic Communications and Transactions Act, 2002;
2.6 "Force Majeure" means, without limitation as to nature or kind, any one or more or any combination of the following -
2.6.1 any power, force or agency which cannot be resisted or controlled by the ordinary person;
2.6.2 any greater or superior or irresistible force;
2.6.3 anything exceptional, extraordinary or unforeseen, which human foresight cannot be expected to anticipate;
2.6.4 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), combination of workmen, prohibition of exports, rationing of supplies, flood, storm, fire or any other circumstances beyond the reasonable control of a party;
2.6.5 inability on the part of Yoyo, as a result of anything of the nature contemplated in this clause 2.6, to obtain goods and/or services from its supplier or contemplated supplier (including any telecommunications supplier, bank or Retailer);
2.7 "Gift Cards" means electronic gift cards made available from time to time by Yoyo on the Website which are Retailer-specific and which can be Purchased by You on this Website for the express purpose of being used by You or, if applicable, Your Beneficiary to redeem with the associated Retailer in respect of qualifying goods or services acquired from that Retailer;
2.8 "Purchase" means the purchase by You of a Gift Card which shall grant You (or Your Beneficiary, if applicable) certain rights in relation to that Gift Card (see, in particular, clause 6 for the Gift Card terms);
2.9 "Registered User" means a person who has registered on the Website and applied to become, and who has subsequently been accepted as, a registered user of the Website;
2.10 "Retailer" means each retailer associated with Gift Cards by Yoyo, as these retailers may be from time to time, and in respect of whom You will be able to perform Purchases through the Website;
2.11 "Website" means the website at https://www.wrappedgifts.co.za, including all associated subdomains, which is owned and operated by Yoyo;
2.12 "Yoyo" means Yoyo Services Proprietary Limited, a company duly registered and incorporated with limited liability under the company laws of the Republic of South Africa under registration number 2013/219035/07 and having its principal place of Unit 207, Second Floor, Block 2, Northgate Park, Section Road, Brooklyn, 7405, Cape Town, Western Cape, Republic of South Africa;
2.13 "You" means any person who browses the Website and also means any Registered User.
3.1NO PROVISION IN THIS AGREEMENT SHALL BE INTERPRETED OR CONSTRUED TO -
3.1.1 LIMIT OR EXEMPT YOYO FROM LIABILITY TO YOU FOR ANY LOSS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO THE GROSS NEGLIGENCE OF YOYO, OR, TO CONSTITUTE AN ASSUMPTION BY YOU OF ANY SUCH RISK OR LOSS;
3.1.2 EXCLUDE, WAIVE OR DEPRIVE YOU OF ANY OF THOSE OF YOUR RIGHTS IN TERMS OF THE CPA OR ECTA OTHER THAN AS PERMITTED IN TERMS OF THOSE ACTS;
3.1.3 AVOID ANY COMPULSORY OBLIGATION OR DUTY IMPOSED BY THE CPA OR ECTA UPON YOYO AS A SUPPLIER.
3.2 Clause headings in this Agreement are for the purpose of convenience and reference only and capitalisation of terms and conditions in this Agreement are for the purpose of drawing attention to them only, and neither of these shall be used in the interpretation of nor modify nor amplify its terms nor any of its clauses.
3.3 In this Agreement unless a contrary intention clearly appears, words importing: any one gender include the other two; the singular include the plural (and the converse shall apply); natural persons include legal entities (corporate or unincorporate) and the state (and the converse shall apply).
3.4 Any reference to an enactment in this Agreement is to that enactment as at the Signature Date and as amended or re-enacted from time to time.
3.5 Any substantive provision in any definition in this Agreement which confers rights or imposes obligations on a Party shall, notwithstanding that it is only in a definition, be given effect to as if it were a substantive provision in the body of this Agreement.
3.6 When a number of days is prescribed in this Agreement, they shall be counted exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding Business Day.
3.7 Defined expressions in this Agreement shall bear the same meanings in schedules to this Agreement which do not themselves contain their own definitions.
3.8 Reference to days, months or years in this Agreement shall be construed as Gregorian calendar (the internationally accepted civil calendar) days, months or years.
3.9 The use in this Agreement of any expression covering a process available under South African law such as a winding-up (without limitation as to the nature or kind of process) shall, if any Party to this Agreement is subject to the law of another jurisdiction, be construed as including equivalent or similar proceedings under that law.
3.10 Any term defined within the context of any particular clause in this Agreement shall, unless otherwise determined by the context, bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that such term is not defined in the definition clause.
3.11 Expiration or termination of this Agreement shall not affect such of its provisions as expressly provide that they shall continue to operate thereafter or which of necessity must continue to have effect thereafter notwithstanding that the clauses themselves do not expressly provide for this.
3.12 In this Agreement 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.
3.13 Any reference in this Agreement to a Party shall, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party's liquidator or trustee, as the case may be.
3.14 In this Agreement the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed nor shall they take effect as limiting the generality of any preceding words.
3.15 In this Agreement the words "other" and "otherwise" shall not be construed as being limited to the nature or kind of any prior words where a wider construction is possible.
4.1 Browsing this Website, applying to become a Registered User of the Website and making any Purchase are each subject to the terms and conditions of this Agreement.
4.2 By browsing the Website, by applying to become a Registered User of the Website or by making a Purchase, You are representing to Yoyo that -
4.2.1 You are 18 years of age or older and You have full legal capacity to enter into this Agreement without the assistance of a guardian, curator or trustee (or similar such appointee); alternatively
4.2.2 You are 18 years of age or older and You have full legal capacity to enter into this Agreement because You are being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee); alternatively
4.2.3 You are younger than 18 years of age and You have full legal capacity to enter into this Agreement because You are being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee).
4.3 If You -
4.3.1 are younger than 18 years of age and are not being assisted to enter into this Agreement by Your guardian, curator or trustee (or similar such appointee); or
4.3.2 are 18 years of age or older but do not have full legal capacity to enter into this Agreement without the assistance of a guardian, curator or trustee (or similar such appointee), then stop using the Website and seek the advice and assistance of Your guardian, curator or trustee (or similar appointee) in this regard.
4.4 If You browse the Website then by doing so You are agreeing to the terms and conditions of this Agreement in relation to Your browsing. If You do not want to agree to them, then stop using the Website. Please remember that it is Your right to choose not to be bound by these terms and conditions. If You continue to browse the Website then You will be deemed to have agreed to the terms and conditions of this Agreement in relation to Your browsing.
4.5 Yoyo reserves the right to amend the terms and conditions of this Agreement at any time by publishing an updated Agreement on-line on the Website. YOU MUST CHECK REGULARLY FOR ANY NEW AMENDMENTS. If You browse the Website but do not want to be bound by any amended Agreement, then stop using the Website. If You continue to browse the Website then You will be deemed to have agreed to the amended terms and conditions of the Agreement in relation to Your browsing.
4.6 The right of admission to the Website and the right of continuation as a Registered User is reserved. Yoyo reserves the right, at any time and from time to time, without prior notice to -
4.6.1 prevent You from browsing the Website; and/or
4.6.2 reject Your application to become a Registered User of the Website; and/or
4.6.3 decline to accept any Purchase You wish to make; and/or
4.6.4 prevent You from making any Purchase; and/or
4.6.5 revoke Your Registered User account.
4.7 YOU WILL REQUIRE COMPUTER EQUIPMENT AND TELECOMMUNICATION CONNECTIVITY IN ORDER TO USE THE WEBSITE, TO MAKE PURCHASES, TO USE GIFT CARDS AND TO SEEK TECHNICAL SUPPORT FROM YOYO. THE COST OF THIS IS FOR YOUR ACCOUNT AND YOYO SHALL HAVE NO LIABILITY TO YOU FOR ANY SUCH COSTS. AS YOUR COMMUNICATIONS WITH THE WEBSITE AND THE MAKING OF PURCHASES ARE ACROSS THE INTERNET WHICH IS A GLOBAL PUBLIC NETWORK SYSTEM, YOYO STRONGLY RECOMMENDS THAT YOU TAKE SECURITY MEASURES AGAINST MALICIOUS COMPUTER SOFTWARE, CODE OR ROUTINES THAT CAN TARGET COMPUTER EQUIPMENT AND TELECOMMUNICATION CONNECTIVITY.
4.8 YOYO DOES NOT WARRANT THAT YOUR USE OF THE WEBSITE OR MAKING PURCHASES WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY INFORMATION (OR COMMUNICATIONS) TRANSMITTED VIA THE WEBSITE OR WHEN MAKING PURCHASES WILL BE TRANSMITTED ACCURATELY, RELIABLY, IN A TIMELY MANNER OR AT ALL. YOUR ACCESS TO THE WEBSITE AND THE ABILITY TO MAKE PURCHASES MAY BE RESTRICTED, FROM TIME TO TIME, TO ALLOW FOR UPDATES, REPAIRS AND MAINTENANCE TO THE WEBSITE AND TO YOYO'S SYSTEMS.
4.9 YOU WARRANT TO YOYO THAT ALL INFORMATION PROVIDED BY YOU TO YOYO WHETHER THROUGH THE WEBSITE OR WHEN MAKING PURCHASES OR ANY OTHER FORM OF COMMUNICATION, IS BOTH TRUE AND CORRECT AND THAT YOYO MAY RELY AND ACT UPON THAT INFORMATION ACCORDINGLY.
4.10 YOU WARRANT TO YOYO THAT MATERIAL SENT, FORWARDED OR POSTED BY YOU TO YOYO, WHETHER THROUGH THE WEBSITE OR WHEN MAKING PURCHASES OR ANY OTHER FORM OF COMMUNICATION, WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY.
4.11 YOU WARRANT TO YOYO THAT YOU WILL NOT MAKE PURCHASES FOR ILLEGAL PURPOSES. SHOULD WE HAVE REASONABLE GROUNDS TO SUSPECT THAT YOU ARE MAKING PURCHASES FOR ILLEGAL PURPOSES, WE RESERVE THE RIGHT TO IMMEDIATELY BLOCK YOUR ACCESS TO THE WEBSITE. WE SHALL THEN NOTIFY YOU OF OUR ACTION AND ADVISE THE PROCEDURE YOU NEED TO FOLLOW FOR INVESTIGATION OF THE MATTER.
5.1 In order to apply make Purchases You must be a Registered User of the Website. This requires You to make an application to become a Registered User by registering on the Website. Yoyo reserves the right to reject any Registered User application and Yoyo's decision in this regard is final and will be binding on You. THE MAKING OF ALL PURCHASES IS SUBJECT TO THIS AGREEMENT.
5.3 Yoyo, -
5.3.1 acting as a gateway, facilitates the transfer to a Retailer of that Retailer's associated component of Purchases You make. The Retailer, not Yoyo, will process its associated component of that Purchase (including rejecting or authorising same, and updating details and balances). YOU ACKNOWLEDGE THAT YOYO IS NOT CAPABLE OF PROCESSING ANY RETAILER COMPONENT OF ANY PURCHASE AS YOYO IS NOT THE RETAILER;
5.3.2 reserves the right to link Retailers to the Website and/or Gift Cards and to delink Retailers from the Website and/or Gift Cards at any time and from time to time, all as determined by Yoyo in its sole and absolute discretion and without notice to You. YOU ACKNOWLEDGE THAT YOYO IS NOT OBLIGED TO LINK ANY RETAILER TO THE WEBSITE OR TO GIFT CARDS NOR TO RETAIN ANY SUCH LINK.
5.4 THE PROCESSING BY A RETAILER OF PURCHASES YOU MAKE AND OF THE ASSOCIATED GIFT CARDS, IS ALSO SUBJECT TO THAT RETAILER’S ASSOCIATED TERMS AND CONDITIONS. BEFORE MAKING ANY PURCHASE OR USING ANY GIFT CARD, YOU MUST READ AND UNDERSTAND AND AGREE TO THE RETAILER’S ASSOCIATED TERMS AND CONDITIONS WHICH ARE PART OF THIS AGREEMENT.
5.5 As part of Your application to register as a Registered User You will be asked to read and to agree to the terms and conditions of this Agreement (including the Retailer's associated terms and conditions) as part of the registration process. If -
5.5.1 You are prepared to agree to them, then press the 'Accept' button. By pressing the 'Accept' button You agree to the terms and conditions in this Agreement and to be bound by them. All business that You do with Yoyo and a Retailer on or via the Website or a Gift Card will be subject to this Agreement;
5.5.2 You do not want to agree to them, then press the 'Do Not Agree' button. By pressing the 'Do Not Agree' button the registration process will be terminated and You will not be registered as a Registered User and will not be able to do any business with Yoyo or a Retailer that is restricted to Registered Users (including making Purchases).
5.6 Yoyo reserves the right to amend the terms and conditions of this Agreement (including the Retailer's associated terms and conditions) at any time by publishing an updated Agreement on-line on the Website. YOU MUST CHECK REGULARLY FOR ANY NEW AMENDMENTS. If You are a Registered User but do not want to be bound by any amended Agreement, You must notify Yoyo (by delivery, post, fax or e-mail to the address in clause 15) that You do not wish to be bound by the amended Agreement. In that case, Your Registered User account will be terminated and You will not be able to do any further business with Yoyo or any Retailer after termination. Whichever version of the Agreement that You agreed to up until the point of termination will remain binding on You and will continue to apply in respect of all business which You conducted with Yoyo or a Retailer prior to termination.
5.7 Yoyo will retain a copy of the version of the Agreement by which You are bound from time to time. You may request a copy of this from Yoyo at any time.
5.8 You must keep Your username and password to the Website and to Gift Cards as secret at all times and not disclose them to any third party. You must notify Yoyo immediately (by delivery, post, fax or e-mail to the address in clause 15) should You identify any unauthorised use of, or any breach of security in relation to, Your Registered User account (including Your username or password) or any Gift Card. IF YOU DISCLOSE YOUR USERNAME OR PASSWORD OR OTHER REGISTERED USER ACCOUNT DETAILS TO ANY THIRD PARTY, YOU AGREE THAT SUCH THIRD PARTY IS APPOINTED AS YOUR AGENT TO ACT ON YOUR BEHALF USING YOUR REGISTERED USER ACCOUNT AND YOU AGREE TO BE BOUND BY AND LIABLE FOR ALL ACTIONS (INCLUDING PURCHASES) OF THAT THIRD PARTY.
5.9 Yoyo reserves the right, at any time and from time to time, without prior notice to -
5.9.1 validate any Registered User's account details including requiring the Registered User to revalidate their Registered User account with Yoyo;
5.9.2 close any Registered User account if Yoyo forms the opinion that that it is a threat to the security or operation of the Website or other systems of Yoyo or is disruptive to or causes harassment of any other Registered User.
5.10 As a Registered User, Yoyo may send You communications which will, generally, fall into two categories -
5.10.1 business communications relating to Your Registered User account and the conduct of Your business with Yoyo and/or a Retailer;
5.10.2 marketing communications. You may, at any time, require Yoyo to stop sending You marketing communications by using any unsubscribe link that may appear in those marketing communications, alternatively, you can also achieve this by sending your request to Yoyo by delivery, post, fax or e-mail to the address in clause 15.
5.11 CLAUSES 5.1, 5.4, 5.5, 5.6, 5.8 AND 5.9 ARE ALSO CONTRACTED BY YOYO AND AGREED TO BY YOU, FOR AND IN FAVOUR OF THE RETAILERS AND IN THIS REGARD THESE CLAUSES CONSTITUTE A CONTRACT FOR THE BENEFIT OF A THIRD PARTY.
6.1 You may be offered the opportunity to Purchase Gift Cards through the Website. A Gift Card is for the express purpose of being used by You or, if applicable, Your Beneficiary to redeem the gift card with the associated Retailer in respect of qualifying goods or services acquired from that Retailer.
6.2 THE PURCHASE, TRANSFER (TO THE EXTENT EXPRESSLY PERMITTED) AND REDEMPTION OF A GIFT CARD IS SUBJECT TO THIS AGREEMENT (INCLUDING THE TERMS AND CONDITIONS ASSOCIATED WITH THAT GIFT CARD). NOT ALL GIFT CARD TERMS AND CONDITIONS ARE THE SAME. BEFORE PURCHASING ANY GIFT CARD YOU MUST READ AND UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS ASSOCIATED WITH THAT GIFT CARD AND WHICH ARE PART OF THIS AGREEMENT (click here to read the Wrapped eGift Card Terms and Conditions).
6.3 You may transfer a Gift Card to a single Beneficiary at the time of Purchase. IF YOU ELECT TO TRANSFER A GIFT CARD TO A BENEFICIARY YOU DO SO SUBJECT TO THIS AGREEMENT (INCLUDING THE TERMS AND CONDITIONS ASSOCIATED WITH THAT GIFT CARD) AND YOU WARRANT IN FAVOUR OF YOYO AND THE ASSOCIATED RETAILER THAT EACH TRANSFER SHALL BE MADE SUBJECT TO THIS AGREEMENT (INCLUDING THE TERMS AND CONDITIONS ASSOCIATED WITH THAT GIFT CARD) AND THAT YOU WILL DRAW THE BENEFICIARY'S ATTENTION TO THE TERMS OF THIS AGREEMENT (INCLUDING THE TERMS AND CONDITIONS ASSOCIATED WITH THAT GIFT CARD).
6.4 Save as expressly set out in clause 6.3, You may not sell, resell, trade or otherwise deal in Gift Cards which You purchase. Gift Cards are for Your or, if applicable, Your Beneficiary's personal use and redemption only. Gift Cards cannot be exchanged (partially or in whole) for cash, credit, other Gift Cards or replacement Gift Cards unless their associated terms and conditions expressly permit this, and if so, then only to the extent so permitted. No Gift Card can be used or redeemed in combination with any other Gift Card unless their respective associated terms and conditions expressly permit this, and if so, then only to the extent so permitted.
6.5 As part of the process of Purchasing a Gift Card, You will be asked to read and to agree to the terms and conditions of this Agreement (including those applicable to that Gift Card). If -
6.5.1 You are prepared to agree to them, then press the 'Accept' button. By pressing the 'Accept' button You agree to the terms and conditions in this Agreement (including those applicable to the Gift Card) and to be bound by them;
6.5.2 You do not want to agree to them, then press the 'Reject' button. By pressing the 'Reject' button the Purchasing process in relation to the Gift Card will be terminated.
6.6 Yoyo reserves the right to amend the terms and conditions applicable to any one or more Gift Cards at any time by publishing an updated Agreement on-line on the Website. YOU MUST CHECK REGULARLY FOR ANY NEW AMENDMENTS. If You do not want to be bound by any amended terms and conditions applicable to Gift Cards, then do not acquire any further Gift Cards. Where You have previously acquired Gift Cards and You or, if applicable, Your Beneficiary have not yet redeemed them, then the version of the terms and conditions applicable to those Gift Cards and which You agreed to when You acquired those Gift Cards, will remain binding on You or, if applicable, Your Beneficiary and will continue to apply in respect of those Gift Cards and Your or, if applicable, Your Beneficiary's use of those Gift Cards.
6.7 Yoyo will retain a copy of the version of the terms and conditions applicable to Gift Cards by which You are bound from time to time. You may request a copy of these from Yoyo at any time.
6.8 The final part of the process of any Purchase of a Gift Card is acceptance of the Purchase by Yoyo by way of receiving Your payment, and in this regard read clause 7. Be aware that until the Purchase is accepted by Yoyo, your Purchase will not be complete.
6.9 You must store Your Gift Cards safely. Yoyo is not responsible for lost or stolen Gift Cards (including Gift Cards which comprise reference numbers). Each Gift Card shall state an expiry date and shall expire on that date. UPON EXPIRY OF A GIFT CARD, YOU OR, IF APPLICABLE, YOUR BENEFICIARY WILL FORFEIT ANY UNREDEEMED VALUE ON THAT GIFT CARD.
6.10 You will not present any Gift Card for redemption other than upon the terms and conditions of this Agreement (including the terms and conditions associated with that Gift Card).
6.11 YOU ACKNOWLEDGE THAT GIFT CARDS ARE NOT DESIGNED TO OPERATE WITH OR ON ANY DEVICE OTHER THAN THE DEVICES STIPULATED BY YOYO FROM TIME TO TIME.
7.1 The full price of the Gift Cards offered by Yoyo in respect of any Purchase You are considering making, including taxes and any other fees or costs, will be presented to You during the Purchase process prior to checkout of your Purchase. You will be given the opportunity to 'Go Back' at each stage of the Purchase process and to correct/change Your Purchase up until the point that You 'Confirm and Pay' for Your Purchase.
7.2 Payment is made by credit card and You will need a valid unexpired 'Visa' or 'MasterCard' credit card with sufficient funds available in order to make Your Purchase. Should the payment process -
7.2.1 be approved, this is acceptance of Your Purchase by Yoyo;
7.2.2 fail or be declined, for whatever reason, Yoyo will not accept Your Purchase and Your Purchase will fail.
7.3 The Gift Card will be made available to You or, if applicable, Your Beneficiary upon successful payment and acceptance by Yoyo of Your Purchase.
7.4 A complete record of each transaction performed by You will be available in Your User account for a period of at least 6 months from the date of Purchase. Should Your User account be terminated for whatever reason, You may request a copy of the complete record of any transaction performed by You, from Yoyo (by delivery, post, fax or e-mail to the address in clause 15) for a period of 6 months thereafter.
7.5 Due to the nature of the transactions that You will enter into with Yoyo being the acquisition of Gift Cards in respect of Retailers as selected by You and the fact that the Gift Card is immediately issued and available to You upon Your Purchase being accepted, Yoyo cannot accept returns or entertain exchanges. Refunds will be made in the circumstances described in clauses 8.2 and 14.3.
7.6 PAYGATE is a provider of secure online services. Yoyo uses PAYGATE to process all credit card transactions and all transactions are 128 bit Secure Socket Layers (SSL) encrypted. Yoyo will not have access to Your credit details. PAYGATE only shares your personally identifiable cardholder information with third parties (i.e. banks and credit card processors) to the extent necessary for PAYGATE to deliver the payment-processing service. Encryption used by PAYGATE complies with international standards and protects the transmission of personal information when completing online transactions. PAYGATE stores information on secure computers and only limited numbers of PAYGATE employees have physical access to these computers in the PAYGATE data centre. PAYGATE’s Internet servers are protected by firewalls and intrusion detection systems. PAYGATE continually reviews and enhances its security in line with technological changes.
8.1Yoyo warrants that each Gift Card -
8.1.1 will be reasonably suitable for the purposes for which it is generally intended;
8.1.2 will be of good quality, in good working order and free of any defects;
8.1.3 will be useable and durable for a reasonable period of time, having regard to the use to which it would normally be put and to all the surrounding circumstances of its supply, for a period of 90 days or its earlier redemption, following delivery of the Gift Card to You or, if applicable, Your Beneficiary. Should any defect arise in the Gift Card during its aforesaid warranty period, You must promptly notify Yoyo in writing (by delivery, post, fax or e-mail to the address in clause 15) describing the defect and Yoyo will, at its option (exercised reasonably), remedy or reissue the defective Gift Card. If Yoyo has previously remedied the affected Gift Card in terms of this warranty during the immediately preceding 3 month period, then Yoyo shall reissue the Gift Card. Any remedial work undertaken by Yoyo shall be warranted for a period of 90 days following delivery of same to You.
8.2 THE WARRANTY IN CLAUSE 8.1 SHALL NOT APPLY IN RESPECT OF DEFECTS OR FAULTS ARISING IN A GIFT CARD DUE TO OR RESULTING FROM -
8.2.1 YOUR OR, IF APPLICABLE, YOUR BENEFICIARY'S FAILURE TO USE THE GIFT CARD IN ACCORDANCE WITH ITS OPERATING INSTRUCTIONS;
8.2.2 EXTERNAL FACTORS AFFECTING THE GIFT CARD, INCLUDING FORCE MAJEURE.
8.3 Yoyo warrants that services -
8.3.1 will be performed and completed in a timely manner and Yoyo shall give You timely notice of any unavoidable delay in the performance of the services;
8.3.2 will be performed in a manner and quality that persons are generally entitled to expect, and should Yoyo fail to meet these standards, You must promptly notify Yoyo in writing (by delivery, post, fax or e-mail to the address in clause 15) describing the failure and Yoyo will, at its option (exercised reasonably), remedy any failure in the quality of the services performed or refund You a reasonable portion of any price You paid Yoyo for those services, having regard to the extent of the failure.
9.1 Following a Purchase by You, should You require technical support in respect of a Gift Card, Yoyo's technical support staff will be available between 8:30 AM to 5:00 PM during Business Days and will provide telephonic and e-mail technical support to endeavour to assist You. For telephonic technical support, please call 0214489974. For e-mail technical support, please e-mail your query to email@example.com.
9.2 When requesting technical support, You agree to -
9.2.1 provide, where available, details of any problem being experienced and any error messages generated by the Gift Card;
9.2.2 co-operate with Yoyo's technical support staff and provide information reasonably requested and follow instructions reasonably given, including those given to try resolve and/or reproduce the problem.
9.3 YOU ACKNOWLEDGE THAT TECHNICAL SUPPORT DOES NOT INCLUDE INSTRUCTION ON THE USE OF A GIFT CARD. For instructions on the use of a Gift Card please refer to the user documentation .
10.1 Yoyo will collect certain personal information about You, including both identifiable and non-identifiable personal data. Identifiable personal data is collected when You register as a Registered User, while You are a Registered User, when making Purchases, when performing any other transaction with Yoyo or when You communicate with Yoyo. Non-identifiable information is gathered automatically when You visit or use the Website. Yoyo may also combine the information we collect from You with information we obtain about You from our business associates and other third parties.
10.2 Mostly, Yoyo collects Your information to ensure network integrity and to enable Yoyo to provide You with relevant content and a service that suits Your needs. In some cases, we are required by law to collect personal information about customers. Except where the law requires otherwise, we will protect the confidentiality of such data.
10.3 Yoyo respects Your privacy. We will protect the confidentiality of Your personal information supplied in the course of contracting with Yoyo. Yoyo will not sell your personal information to third parties for commercial or marketing purposes.
10.4 Yoyo collects and shares aggregated user data with business associates and other third parties for the purposes of developing content and ensuring relevant advertising and content. This user data will not be used to identify individual users.
10.5 Yoyo may log Your visits to and use of the Website and collect IP addresses and information about your operating system and the type of browser you use for the purposes of network/system administration, to report aggregate information to our advertisers and to audit the use of the Website. This data will not be used to identify individual users.
10.6 Any information which Yoyo collects from You through our communications will be used to address the matters referred to in those communications. If this requires referring such communications to a third party to ensure customer service, Your personal information will only be disclosed to the point necessary to address your query or concerns, and will otherwise be kept confidential.
10.7 Any information that You disclose in a public space on the Website (including on a bulletin board or chat room) is available to anyone else who visits that space. Yoyo cannot safeguard any information You disclose there.
10.8 The Website contains links to sites that belong to third parties unrelated to Yoyo. These links are provided for convenience only and Yoyo does not endorse these sites or the third parties. Yoyo has no control over and takes no responsibility for Your use of or for any information You submit to or over these third party sites. You access and use third party sites at Your own risk. Yoyo cannot be held responsible for any use of Your personal information arising from You disclosing personal information on third party sites.
10.9 Yoyo reserves the right to -
10.9.1 disclose information about You where required in good faith, to do so by law or to exercise Yoyo's legal rights or defend Yoyo against legal claims;
10.9.2 share Your information with law enforcement to investigate or prevent illegal activities being committed over Yoyo's network;
10.9.3 disclose Your information where You have given us explicit consent to do so;
10.9.4 monitor user and network traffic for site security purposes and prevent any unauthorized attempts to tamper with the Website or to cause damage to Yoyo's property.
Yoyo hereby reserves the right to edit or remove material which is sent, forwarded or posted by You and which Yoyo determines is objectionable including that which Yoyo determines is offensive, indecent, obscene, abusive threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party. In Your use of the Website and making any Purchases and in communicating with Yoyo, You will not, directly or indirectly, -
11.1 conduct Yourself or incite others to conduct themselves in a manner contrary to any law or which would amount to a criminal offence or which would give rise to civil liability;
11.2 conduct Yourself in a manner which is offensive, indecent, obscene, threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party;
11.3 pose as, or hold Yourself out to have, an identity which is not You;
11.4 interfere with the rights of others to use the Website;
11.5 circumvent or compromise (or attempt to circumvent or compromise) the security on the Website or Yoyo's systems;
11.6 send, forward or post material which is offensive, indecent, obscene, abusive threatening, menacing, incites violence, incites hatred, breaches any obligation of confidentiality or infringes the rights of any third party;
11.7 advertise or promote Yourself or any third party or any products and/or services on the Website;
11.8 create or send 'chain letters' being communications which are sent, or which encourage any person to send, them (or copies or variations of them) to multiple parties either in a single or over multiple posting sessions;
11.9 introduce malicious computer software, code or routines which -
11.9.1 might disrupt, distort, disable, harm or otherwise impede the operation of any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals;
11.9.2 might disable or impair in any way the operation of any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals based on an elapsed period of time or advancement to a particular date or other numeral;
11.9.3 might permit any person to access (remotely or otherwise) and disable or impair any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals;
11.9.4 comprise harmful or hidden procedures, routines or mechanisms which might cause any software, firmware, hardware, local area network, wide area network, virtual private network or any of their peripherals to cease functioning;
11.9.5 might damage or corrupt data, storage media, software, firmware, hardware or communications or otherwise interfere with technology operations generally.
12.1 All -
12.1.1 patents, copyright, trademarks, logos, style names, slogans, designs, models, inventions, trade and business secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain, use or for their protection) which are used or held, whether or not currently, in connection with Yoyo's business (including the Website and the Gift Cards); and
12.1.2 ideas, designs, documents, diagrams, information, devices, technical data, scientific data, secret and other processes and methods used in connection with Yoyo's business, and, all available information regarding marketing and promotion of Yoyo's products and services, and, all and any modifications or improvements to any of the aforegoing, (collectively, "Intellectual Property") are and will at all times be and remain the property of Yoyo (or its licensors) and You shall not acquire any rights, title or interest of any kind in or to any or all of such Intellectual Property. Except as expressly permitted in this Agreement, You shall not make use of Yoyo's (or its licensors') Intellectual Property without the prior written consent of Yoyo, which may withhold its consent in its sole and absolute discretion. All rights in and to Yoyo's (or its licensors) Intellectual Property not expressly granted in this Agreement, are hereby reserved.
12.2 Provided that You have agreed to the Terms and Conditions of this Website, You may view and interact with the Website in its original display format (as intended by Yoyo for access by the public) for your own personal and non-commercial use. You may not display the whole or any part of this Website, on or in any other website or in any form of communication to any other person.
12.3 You hereby grant Yoyo the perpetual, royalty-free, world-wide right to use and exploit to the extent that Yoyo sees fit, all and any ideas, comments and information provided or communicated by You to Yoyo (in whatever form they are provided or communicated). For clarity, You shall receive no compensation or reward in the event that Yoyo uses and/or exploits any ideas, comments and information which You have provided or communicated to Yoyo. IF YOU DO NOT WANT YOYO TO USE OR EXPLOIT ANY OF YOUR AFORESAID IDEAS, COMMENTS OR INFORMATION, THEN DO NOT DISCLOSE THEM TO YOYO.
12.4 Yoyo may make reference to third party trade marks (or other intellectual property) on the Website and/or the Gift Cards. All third party trade marks (or other intellectual property) are the property of the respective owners thereof.
13.1 Either party will be entitled to cancel this Agreement at any time by giving the other party 20 Business Days' prior written notice to this effect.
13.2 Should either party breach any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fail to remedy such breach within 20 Business Days of receipt of notice requiring it to do so and warning that if the breach is not so remedied, the aggrieved party may exercise its rights in terms of this clause, then the aggrieved party will be entitled without notice, in addition to any other remedy available to it at law or in terms of this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved party's right to claim damages.
13.3 Should either party -
13.3.1 commit an act which is or would be an act of insolvency in terms of section 8 of the Insolvency Act, 1936 (if committed by a natural person);
13.3.2 commence business rescue proceedings, be provisionally or finally liquidated, be removed from the company register, take steps for its voluntary winding up, or, be placed in any similar or replacement regime covered by South African insolvency law, then, the other party shall thereafter be entitled to terminate this Agreement on written notice to that effect.
13.4 Cancellation or termination of this Agreement shall not affect either party's accrued rights in terms hereof.
14.1 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, YOYO SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, EXTRINSIC, SPECIAL, PENAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES SUSTAINED BY YOU ARISING OUT OF OR IN CONNECTION WITH YOUR REGISTRATION, YOUR USE OF THIS WEBSITE, ANY PURCHASE YOU MAKE AND/OR ANY GIFT CARD, REGARDLESS OF HOW SUCH LOSSES OR DAMAGES ARE CAUSED (INCLUDING AS A RESULT OF NEGLIGENT ACTS OR OMISSIONS OF YOYO OR OF ANY PERSON FOR WHOM YOYO MAY BE LIABLE IN LAW), WHETHER THEY ARISE UNDER CONTRACT, DELICT OR OTHERWISE AND WHETHER THE LOSS WAS ACTUALLY FORESEEN OR REASONABLY FORESEEABLE.
14.2 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, YOYO SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES SUSTAINED BY YOU ARISING OUT OF OR IN CONNECTION WITH YOUR REGISTRATION, YOUR USE OF THIS WEBSITE, ANY PURCHASE YOU MAKE AND/OR ANY GIFT CARD, REGARDLESS OF HOW SUCH LOSSES OR DAMAGES ARE CAUSED (INCLUDING AS A RESULT OF NEGLIGENT ACTS OR OMISSIONS OF YOYO OR OF ANY PERSON FOR WHOM YOYO MAY BE LIABLE IN LAW), WHETHER THEY ARISE UNDER CONTRACT, DELICT OR OTHERWISE AND WHETHER THE LOSS WAS ACTUALLY FORESEEN OR REASONABLY FORESEEABLE, IN EXCESS OF -
14.2.1 IN RELATION TO ANY CLAIM OR SERIES OF CLAIMS ARISING FROM ANY PURCHASE YOU MAKE OR ANY GIFT CARD, A REFUND OF THE AMOUNT PAID BY YOU FOR THAT PURCHASE OR GIFT CARD, AGAINST THE RETURN OF THE ASSOCIATED GIFT CARD; OR
14.2.2 IN RELATION TO ANY OTHER CLAIM OR SERIES OF CLAIMS ARISING FROM THE SAME CAUSE OF ACTION, AN AMOUNT OF R100.00.
14.3 CLAUSES 14.1 AND 14.2 ARE ALSO CONTRACTED BY YOYO AND AGREED TO BY YOU, FOR AND IN FAVOUR OF ANY PERSON FOR WHOM YOYO MAY BE LIABLE IN LAW AND IN THIS REGARD THESE CLAUSES CONSTITUTE A CONTRACT FOR THE BENEFIT OF A THIRD PARTY.
14.4 SAVE AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE WEBSITE, THE MAKING OF PURCHASES AND/OR GIFT CARDS ARE PROVIDED ON AN AS-IS BASIS AND, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, YOYO EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, IN RESPECT OF THE WEBSITE, THE MAKING OF PURCHASES AND/OR GIFT CARDS.
14.5 Nothing in this clause 14 shall be interpreted or construed to exclude or limit Yoyo's liability for death, illness or personal injury or any loss of or physical damage to property, caused to You by any act or omission of Yoyo, save to the extent permitted by the CPA.
15.1 The parties choose as their addresses at which legal notices may be served and legal process may be executed, for all purposes in terms of this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following -
Physical: Unit 207, Second Floor, Block 2, Northgate Park, Section Road, Brooklyn, 7405, Cape Town, Western Cape, Republic of South Africa
Postal: Unit 207, Second Floor, Block 2, Northgate Park, Section Road, Brooklyn, 7405, Cape Town, Western Cape, Republic of South Africa
Fax: not applicable
15.1.2 You, if You are a Registered User:
the addresses selected by You for this purpose during the process of applying to become a Registered User, as amended by You in accordance with this Agreement.
15.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
15.3 Either party may by notice to the other party change the physical address chosen as its address at which legal notices may be served and legal process may be executed, to another physical address where postal delivery occurs in the Republic of South Africa, or its postal address or its fax number or its e-mail address, provided that the change shall become effective on the 5th Business Day from the deemed receipt of the notice by the other party. UNTIL THE CHANGE BECOMES EFFECTIVE ALL COURT PROCESS, NOTICES AND OTHER DOCUMENTS AND COMMUNICATIONS OF WHATSOEVER NATURE THAT HAVE BEEN SERVED AND EXECUTED AT THE THEN CURRENT ADDRESS SHALL BE VALID AND EFFECTIVE AGAINST THAT PARTY EVEN IF THEY DO NOT COME TO THE ATTENTION OR KNOWLEDGE OF THAT PARTY.
15.4 A notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its address at which legal notices may be served and legal process may be executed, to which post is delivered, shall be deemed to have been received on the 5th Business Day after posting (unless the contrary is proved).
15.5 A notice to a party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its address at which legal notices may be served and legal process may be executed, shall be deemed to have been received on the day of delivery.
15.6 A notice to a party sent by fax to its chosen fax number, shall be deemed to have been received on the first Business Day following the date of dispatch (unless the contrary is proved).
15.7 A notice to a party sent by e-mail to its chosen e-mail address, shall be deemed to have been received on the first Business Day following the date of dispatch (unless the contrary is proved).
15.8 Notwithstanding the aforegoing, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address at which legal notices may be served and legal process may be executed.
15.9 Each party appoints any responsible person at its chosen address at which legal notices may be served and legal process may be executed, to receive for and on its behalf, service of process in such jurisdiction in any legal action or proceedings regarding this Agreement. Nothing herein shall affect the right to serve process in any other manner permitted by law.
If Force Majeure causes delays in or failure or partial failure of performance by a party of all or any of its obligations, this Agreement, or as the case may be the affected portion thereof, shall be suspended for the period during which the Force Majeure prevails, but if they affect any material part of the Agreement it shall be suspended only for a maximum period of 21 days after which any affected party shall be entitled on 3 days' written notice to cancel this Agreement. Written notice of a Force Majeure event specifying its nature and commencement date shall be dispatched by the party seeking to rely on it (on whom the onus shall rest) as soon as reasonably possible after its commencement. Written notice of the cessation of the Force Majeure event shall be given by the party who relied on it, within 3 days after such cessation.
Neither party shall be entitled to cede, delegate, assign or in any other manner dispose of any of its rights or obligations arising out of this Agreement without the prior written approval of the other party which may withhold its approval in its sole and absolute discretion, provided that to the extent that any such cession, delegation, assignment or disposal relates to an amalgamation or genuine restructuring of the first-mentioned party or any group of companies of which it is part, then the other party's approval shall not be unreasonably withheld. This clause shall be binding on the liquidator, business rescue practitioner or trustee (whether provisional or final) of each party.
Nothing in this Agreement shall be deemed to constitute either party the partner or agent or legal representative of the other. It is not the parties' intention to create nor shall this Agreement be construed to create any commercial or other partnership. Neither party shall have any authority to act for or assume any obligation or responsibility on behalf of the other party nor hold itself out as partner or agent of the other party.
This Agreement has been concluded in the English language. In the case of any conflict between the English version of this Agreement and any translation version, the English version shall prevail. Notices required in terms of this Agreement shall be given in the English language.
20.1 This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
20.2 If this Agreement is concluded outside of the Republic of South Africa, or, where a party is domiciled in another country, the parties agree that this Agreement shall be governed by the substantive laws of the Republic of South Africa (if its prescription laws are not considered to be substantive laws, by the prescription laws as well but excluding its conflict of law principles), provided that if the major part of the Agreement is to be performed outside the Republic of South Africa, none of its laws which promote competition in the Republic of South Africa shall govern. All disputes, actions and other matters relating to this Agreement shall be determined in accordance with such law.
20.3 The United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement and transactions implemented pursuant to it.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it were not written herein, and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
22.1 THIS AGREEMENT CONSTITUTES THE WHOLE AGREEMENT BETWEEN THE PARTIES RELATING TO ITS SUBJECT MATTER AND REPLACES, SUPERSEDES AND CANCELS IN ITS ENTIRETY, ANY PRIOR AGREEMENTS WHATSOEVER (WHETHER WRITTEN OR ORAL) IN FORCE BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
22.2 No amendment or consensual cancellation of this Agreement or any of its provisions or terms or of any agreement or other document or instrument issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising out of this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement or other document or instrument issued pursuant to or in terms of this Agreement shall be binding unless performed in accordance with the terms of this Agreement or otherwise recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation).
22.3 Any extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document or instrument issued or executed pursuant to or in terms hereof, shall be strictly construed as relating strictly to the matter in respect whereof it was made or given, shall not operate as an estoppel (to preclude/prevent a person from asserting/denying a fact or a right) against any party in respect of its rights in terms of this Agreement, and, shall not operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this Agreement.
22.4 No failure or delay on the part of either party in exercising any right, power or privilege in terms of this Agreement shall operate as a waiver thereof, nor shall 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.
In addition to that already contained in this Agreement or on the Website, the following information is provided in terms of ECTA -
23.1 Telephone number: 0214489974.
23.2 Membership of self-regulatory or accreditation bodies to which Yoyo belongs/subscribes and their contact details: None.
23.3 Codes of conduct subscribed to by Yoyo and how they can be accessed electronically: None.
23.4 Office bearers: Bevan Ducasse, Owen Bruyns.
23.5 Place of registration: The Republic of South Africa.
23.6 Description of the main characteristics of the goods/services offered by Yoyo to enable a consumer to make an informed decision on the proposed electronic transaction: Yoyo operations comprise the development of an integrated technology platform which enables the conduct of electronic transactions between consumers and merchants in an in-store and on-line retail environment and in the licensing of this platform.
23.7 Alternative dispute resolution codes subscribed to by Yoyo and how they can be accessed electronically: None.
In addition to that already contained in this Agreement or on the Website, the following information is provided in terms of the CPA -
24.1 Public officers' contact details: Owen Bruyns. Contact number: 0214489974
24.2 The exact service to be rendered by Yoyo: Yoyo creates transactional software products that enable consumers to connect with businesses and brands
24.3 Costs which Yoyo is entitled to recover from You, and under what circumstances: None.
24.4 Yoyo will disclose any information, at any relevant time, which may be relevant to You when You are deciding whether to acquire the service offered by Yoyo, or whether to continue with an existing service.
24.5 Yoyo will disclose any information, at any relevant time, which may be relevant to You when You are deciding whether to acquire the service offered by Yoyo, or whether to continue with an existing service.
24.6 Yoyo has not been -
24.6.1 found guilty of any offence involving dishonesty which was punishable by criminal imprisonment without the option of a fine;
24.6.2 placed under sequestration, liquidation or business rescue proceedings.