1. Introduction: These terms and conditions (the "Terms") govern the relationship between you (“Brand Owner” or “you”) and Touchsides SA (Pty) Ltd ("Touchsides", "we" or "us") relating to your use of the Hola Club Rewards Programme in order to offer members of the Hola Club Rewards Programme (“Members”) various promotional and marketing offers (“Campaign” or “Campaigns”) from time to time, and / or the provision of data insight online dashboards (“Dashboards”) and / or and data insight reports (“Reports”). These terms apply whether the Hola Club Rewards Programme is branded under the “Hola Club” brand, or otherwise (your own brand).
2. Acceptance of Terms: By registering for the Hola Club Rewards Programme and running a Campaign, you agree to be bound by these Terms.
4. Commencement and Duration: These Terms shall commence immediately upon on the date of your registration or the commencement of a Campaign, whichever is the earlier. The Terms will be binding on you and shall continue indefinitely, until terminated by you or Touchsides as provided for below.
5. Costs and Payment:
5.1 All promotional costs, including rewards being offered, relating to any Campaign will be invoiced in full in advance. Full payment is to be received prior to the start of any Campaign.
5.2 All fees relating to Reports will be invoiced monthly as and when the service is consumed.
5.3 Invoices are payable on presentation.
6.1 In order to commence a Campaign, you will need to notify us in writing of the proposed Campaign, setting out all relevant details in order to enable us to understand your requirements. We will not run any Campaign until the terms of the Campaign have been agreed to in writing (including electronic communication).
6.2.1 Each Campaign strictly complies with all applicable laws and is not immoral, offensive or could otherwise be potentially harmful to Touchsides in any way;
6.2.2 You will provide Touchsides with the relevant terms and conditions for each Campaign within a reasonable time period before the launch of such Campaign;
6.2.3 Any reward, coupon, voucher, airtime, unit of value or other benefit offered as part of a Campaign (“Reward”) is honoured by the Brand Owner at all times and that the Members are able to redeem such Rewards at all reasonable times during a Campaign;
6.2.4 You will provide us with complete and accurate information with respect to any Reward and Campaign to be run in the retailers, taverns, or other traders (“Outlets”) that participate in the Hola Club Rewards Programme;
6.2.5 You will provide, at your sole cost, all relevant marketing materials (including point of sale and electronic materials) required for use at Outlets in relation to a Campaign and ensure that they are printed, delivered and installed timeously prior to the launch of all Campaigns;
6.2.6 You will comply with all lawful instructions of Touchsides from time to time in relation to the Hola Club Rewards Programme.
7.1 Rewards are issued and fulfilled by you and, as such, Touchsides is never responsible for any Rewards in any way whatsoever. Further, Touchsides is never responsible for any incorrect messages sent to Members as part of a Campaign. You accordingly waive any right to claim compensation of any nature (including damages, expenses, costs or any other losses) under these circumstances described in this clause 7.1.
7.2 Where applicable, you will communicate all information relating to the Rewards, rules and mechanics of any Campaign prior to its start to any Outlet.
8. Data Privacy: You agree and acknowledge that all data related to the Members and their spending habits shall be the exclusive property of Touchsides. Touchsides will never disclose any personal information of any Member to you.
9.1 Touchsides shall provide you with access to the Dashboards, setting out all relevant Campaigns, for the duration of a Campaign(s).
9.2 The Reports and Dashboards that are available are subject to change at the sole and absolute discretion of Touchsides. The Reports and Dashboards that are provided by us, and the contents thereof, are dependent on the commercial arrangement between us and you.
9.3 Touchsides does not warrant or represent that the supply of data via the Dashboard, Reports or otherwise will be free of interruption or restriction and does not warrant the timeliness, sequence or accuracy of completeness of the data.
9.4 Touchsides may interrupt, restrict or prevent access or use of any data if it needs to as a result of operational or other reasonable conditions, or if Touchsides, in its reasonable discretion considers it necessary or desirable for any other reason.
9.5 All data provided on the Dashboard and in Reports is anonymised data relating to the Members spending habits at participating Outlets. At no time will you be given access to or ownership of any Member’s data.
9.6 Access to the Dashboard and Reports, and the data provided, is intended for your internal use only and cannot be disclosed or sold to any person, including a third party, for any reason whatsoever.
10.1 “Confidential Information” means any proprietary and/or confidential information disclosed by one of us (“Disclosing Party”) to the other (“Receiving Party”).
10.2 Undertaking: The Receiving Party hereby irrevocably agrees and undertakes, in favour of Disclosing Party: (i) not to use or disclose the Confidential Information for any purpose other than as is strictly necessary in order to perform its obligations in terms of these Terms; (ii) to ensure that any person to whom the Receiving Party discloses any Confidential Information to as provided for in terms of these Terms is bound by a written agreement protecting the confidentiality of the Confidential Information on terms that are no less stringent than that of these Terms; and (iii) not to copy, adapt, alter, modify or change any of the Confidential Information.
10.3 Exceptions: The above undertakings by the Receiving Party will not apply to information which:
(i) is lawfully in the public domain at the commencement date of these Terms; or
(ii) lawfully comes into the public domain after the commencement date of these Terms otherwise than as a result of the conduct of the Receiving Party ; or
(iii) the Receiving Party is compelled to disclose in terms of a court order;
(iv) is approved for release upon the written confirmation of Disclosing Party; and
(v) is required by law to be disclosed by the Receiving Party.
11.1 All intellectual property rights, including the Confidential Information, trademarks, trade secrets, copyright, designs, patents, know-how and any other proprietary rights (“Intellectual Property”) owned by one of us shall be exclusively owned by that person and nothing in these Terms shall constitute a transfer, cessions or assignment of such rights.
11.2 Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any Intellectual Property or any part thereof that does not belong to you is strictly prohibited, unless specifically authorised by Intellectual Property owner.
11.3 We hereby grant you a limited non-exclusive and non-transferrable license to access the Dashboard and use our trademarks, including “TOUCHSIDES”, “HOLA CLUB REWARD PROGRAMME” and “HOLA CARD” in relation to the marketing and promotion of any Campaign and/or Reward. You hereby grant us a limited non-exclusive and non-transferrable license use your trade mark for marketing and promotional purposes and also to fulfil our obligations in terms of these Terms.
12. Warranties: You hereby warrant that –
12.1 your Intellectual Property, the Rewards and/or the Campaign do not infringe, or constitute an infringement or misappropriation of, any intellectual property or other any other right of Touchsides or any third party;
12.2 you will only market, offer and sell Campaigns to persons over the age of 18;
12.3 you will market and promote the Campaigns in a professional manner and shall in no way (whether by act or omission) do anything that could harm the Hola Club Rewards Programme or Touchsides or their reputations;
12.4 you will honour all valid Rewards timeously and will ensure that such Rewards are at all relevant times capable of being fulfilled and/or supplied to qualifying Members;
12.5 you are and shall remain for the duration of these Terms, fully cognisant of and compliant with any relevant legislative or regulatory requirements (as may be amended from time to time) and/or rulings or codes of practice of any competent authority or industry body that has jurisdiction over and/or is relevant to the performance of its responsibilities under these Terms;
12.6 you will strictly comply with your obligations in terms of clause 6.2 above and all clauses of these Terms;
12.7 you will for the duration of these Terms comply with any applicable Touchsides policies and procedures which Touchsides notifies you of from time to time.
13.1 You hereby indemnify Touchsides, including its directors, shareholders and employees and hold us harmless against all losses, liabilities, costs, expenses, fines, Penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties) (“Losses”):
(i) arising from or in relation to any Campaign and/or Reward; or
(ii) attributable to your failure to perform your obligations in terms of clause 6 and all other clauses in this agreement with due care and exercising the degree of skill, diligence, prudence, responsibility and foresight reasonably expected from an experienced person, in relation to the disciplines for which it is responsible; or
(iii) which result from or which may be attributable to any breach of any of the warranties as provided for in clause 12 above.
13.2 We will never be responsible for any indirect, special or consequential damages.
14. Termination by us:
14.1 You agree that Touchsides may, at its sole discretion, suspend or terminate your access to all or part of our services on no less than 30 (thirty) days prior written notice.
14.2 Notwithstanding the above, should Touchsides suspect any illegal, immoral or other behaviour that could potentially bring its reputation into disrepute or otherwise suspect abuse of the system or data, Touchsides in its sole and absolute discretion, may immediately and unilaterally terminate the relationship between us on written notice to you. Any monies paid to Touchsides will not be refunded.
15. Termination by you: You have the right to terminate your registration of the Hola Club Reward Programme on no less than 30 (thirty) days written notice to us. However, we will no longer be required to run any Campaign after the date of termination.
16.1 If a dispute of any nature arises between us in connection with these Terms, including any question regarding its existence, validity or termination, such dispute shall be submitted to and decided by arbitration in terms of this clause or, by agreement between the Parties, by a court of competent jurisdiction.
16.2 The dispute shall be referred to and finally resolved by arbitration under the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) for Commercial Arbitrations (the Rules), including the right to appeal, which Rules are deemed to be incorporated by reference into this clause.
16.3 There shall be 1 (one) arbitrator, whose identity shall be agreed in writing by both of us within 5 (five) business days following the declaration of a dispute by one of us in writing, failing which the arbitrator shall be appointed by AFSA from the senior legal practitioners on its panel in terms of the Rules, taking into account the value and complexity of the dispute under referral.
16.4 The seat, or legal place, of the arbitration shall be South Africa and any hearing shall be held in Johannesburg. The language to be used in the arbitral proceedings shall be English. Unless the Parties agree otherwise, the arbitration shall be conducted on an urgent basis in terms of the Rules.
16.5 Nothing contained in these Terms shall preclude either one of us from approaching a court of competent jurisdiction within the Republic of South Africa for interim relief on an urgent basis pending the final outcome of an arbitration referral under this clause.
16.6 The references to AFSA shall include its successor or body nominated in writing by it, in its stead.
16.7 We both agree and irrevocably undertake to keep the arbitration and all matters related thereto strictly confidential. Both of us (i) acknowledge and agree that we shall not disclose any such information to any person other than our own employees, members, officers, professional advisors and/or other divisions who need to know such information for the purposes of this clause (“Permitted Recipient”) or to third parties where it is required to do so by law or in terms of regulatory process; (ii) shall procure that each Permitted Recipient is made aware of and complies with its obligations of confidentiality in terms of this clause and (iii) shall give reasonable notice to the other party as and when any obligation for third party disclosure arises.
17.1 Benefit of these Terms: These Terms will also be for the benefit of and be binding upon the successors in title and permitted assigns of the parties to this agreement or either of us.
17.2 Severance: If any provision of these Terms, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
17.3 Entire Agreement
(i) These Terms constitutes the entire agreement between us in regard to its subject matter.
(ii) These Terms shall supersede all previous agreements entered into between us.
(iii) None of us shall have any claim or right of action arising from any undertaking, representation or warranty not included in these Terms.
17.4 Variations: No agreement to vary, add to or cancel these Terms shall be of any force or effect unless agreed to by or on behalf of both of us.
17.5 Waiver: Any indulgence that one of us may grant the other or any failure on the part of one of us to exercise any rights in terms of these Terms, will not prejudice that person’s rights nor will it be considered a novation or waiver of such rights.
17.6 Survival of Rights, Duties and Obligations: Termination of these Terms for any cause shall not release any party from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination. In particular, clauses 10, 11, 13, 16 and 17 shall survive the termination of these Terms and shall ensure indefinitely thereafter.
17.7 Governing Law and Jurisdiction: The Terms shall be governed by and construed in accordance with the laws of the Republic of South Africa without giving effect to any principles of conflict of law. You hereby consent to exclusive jurisdiction of the High Court of South Africa in respect of any disputes arising in connection with the services referred to herein, or the Terms or any matter related to or in connection therewith.
17.8 Assignment: Touchsides shall be entitled to cede, assign and delegate all or any of its rights and obligations in terms of the Terms.
17.9 Own risk: Your participation in the Hola Club Rewards Programme at your own risk and we make no representation or warranties about it.
Disclosures required in terms of section 43 of the Electronic Communications and Transactions Act 25 of 2002:
Full Name: Touchsides SA (Proprietary) Limited
Physical Address: The Oval West Wing, Wanderers Office Park, 52 Corlett Drive, Illovo, 2196
Telephone No.: +27 (10) 321 5100
Email Address: firstname.lastname@example.org
Registration No.: 2007/007727/07
Country of incorporation: South Africa
Last Edited: 25-06-2018