VIRGIN MONEY SPOT LICENCE AGREEMENT AND TERMS OF USE (“AGREEMENT”)

 

READ THIS AGREEMENT CAREFULLY. BY REGISTERING FOR THE APP YOU AGREE TO THE TERMS OF THIS LICENCE AND TERMS OF USE WHICH WILL ACTIVATE THE SOFTWARE

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PROCEED WITH REGISTRATION

IF YOU ARE NOT 18 YEARS OF AGE OR OLDER DO NOT PROCEED WITH REGISTRATION. ONLY YOUR GUARDIAN MAY PROCEED WITH REGISTRATION ON YOUR BEHALF

 

1.           DEFINITIONS 

Unless a contrary intention clearly appears, the following terms shall have the following meanings assigned to them and cognate expressions shall have corresponding meanings, namely –

1.1                App” means the Virgin Money Spot mobile application through which the Services will be rendered on Your instruction;

1.2                App Store” means Your device’s application store from which You download the App;

1.3                Confidential Information” means all information and data of whatsoever nature (including the Intellectual Property), whether tangible, intangible, oral or in writing and in any format or medium that is obtained or learned by, disclosed to, or comes to the knowledge of You from Us during the course of or arising out of or in relation to this Agreement or Your use of the App and/or the Services, by whatsoever means, which by its nature or content is or ought reasonably to be identifiable as confidential or proprietary to Us, or which is provided or disclosed in confidence;

1.4                CPA” means the Consumer Protection Act 68 of 2008, as amended, varied, re-enacted, novated or substituted from time to time;

1.5                Documentation” means integrated electronic help published by Us, describing the Software’s functionality and intended operation;

1.6                EFT” means electronic funds transfer;

1.7                Exchange/s” means the third party platforms through which We facilitate the provision of the Services to You, including without limitation DoshEx and, on notice to You, such other platform We may determine in our discretion from time to time;

1.8                FICA” means the Financial Intelligence Centre Act 38 of 2001, as amended, varied, re-enacted, novated or substituted from time to time;

1.9                Intellectual Property” means, collectively, all and any intellectual property including, without limitation, patents, copyright, trademarks, designs, models, Know-How, inventions, trade and business secrets, sales and customer data, databases and rights in databases and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain, use or for the protection of same) which are used or held (currently or not) in connection with either Our business as applicable and/or by way of a licensing agreement and or right, title and interest;

1.10             Know-How” means: all ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used in connection with Our business; all available information regarding marketing and promotion of Our products and services (including the Services); and all and any modifications or improvements to any of them;

1.11             Mobile Phone” means a single mobile phone with a central processing unit capable of executing instructions from a software program, and which is owned or leased by You and on which the Software is installed;

1.12             Personal Information” has the same meaning as “personal information” as defined in POPIA;

1.13             POPIA” means the Protection of Personal Information Act 4 of 2013, as amended, varied, re-enacted, novated or substituted from time to time;

1.14             Processing” has the same meaning as “processing” as defined in POPIA, which for instance will include (subject to the provisions of POPIA, which may be amended from time to time): collecting, storing, collating, using, modifying, sending, distributing, deleting and destroying Personal Information;

1.15             Selected Merchants” means those merchants as selected by Us from time to time and with whom We have contracted to provide VAPs;

1.16             Services” means any of the services referred to in clause 3 of this Agreement;

1.17             Software” means the object code of and Documentation for the App;

1.18             VAPs” means the value-added products of one or more Selected Merchants;

1.19             Virgin Money Tokens” means the digital cryptographic tokens that are created and transferred using an ERC20 smart contract running on the private Exchange on the Ethereum blockchain, and which are purchased by or transferred to You in terms of this Agreement;

1.20             Wallet” means a User’s ring-fenced User account created and maintained by the Exchange and reconciled to Our virtual master wallet created and maintained on the Ethereum blockchain by the Exchange.  The Wallet is unique to each User and reflects the balance of a User’s Virgin Money Tokens (if any), and contains Personal Information of the User;  

1.21             We” or “Us” or “Our” shall mean  Virgin Money South Africa(Proprietary) Limited Registration Number: 2005/016196/07, 2nd Floor, 35 Ferguson Road, Illovo, Johannesburg 2190;

1.22             You” means the person who registers and creates a profile on the App and “”Your” and “User” shall have corresponding meanings; and

1.23             ZAR” means South African Rand.

2.           REGISTRATION

In order to use the App You need to register an account with Us by going through the registration process on the App. This will involve providing Us with certain information, including Your mobile number, identification number and email address. 

3.           SERVICES

3.1                The App enables a User to select one or more of the following Services:

3.2                Purchase of Virgin Money Tokens:

3.2.1                    You may elect to purchase for Yourself or for another User Virgin Money Tokens at a purchase price of  ZAR 1 (one) each by using Your debit card, credit card or by making an EFT into Our nominated business bank account the details of which is pre-loaded onto the App.

3.2.2                    Each Virgin Money Tokens will represent 1 (one) ZAR and will be allocated and stored in Your Wallet at all times.

3.2.3                    We reserve the right to reject or cancel Your request to purchase Virgin Money Tokens at any time in Our discretion.

3.2.4                    We may, in Our discretion and without prior notice to You, set daily and/or monthly limits for the purchase of Virgin Money Tokens.  Any such daily limits will appear on the App.

3.3                Transfer of Virgin Money Tokens:

3.3.1                    A User (the Sender) may transfer Virgin Money Tokens to another User (the Recipient).

3.3.2                    In order to transfer Virgin Money Tokens to the Recipient, the Sender must identify the Recipient and the value of the Virgin Money Tokens to be transferred into the Recipient’s Wallet.

3.3.3                    A Sender may, if his or her debit card or credit card is linked to the App, purchase Virgin Money Tokens and transfer the purchased Virgin Money Tokens directly to the Recipient’s Wallet. Alternatively, a Sender may transfer some or all of his or her Virgin Money Tokens to the Recipient.  In this case, the Sender’s Wallet will be debited by the value of the Virgin Money Tokens transferred to the Recipient, and the Recipient’s Wallet will be credited with the relevant value of Virgin Money Tokens.

3.3.4                    The Recipient will receive a notification via the App that his or her Wallet has been credited with the relevant value of Virgin Money Tokens, and can elect to:

3.3.4.1                       keep the Virgin Money Tokens in his or her Wallet; or

3.3.4.2                       cash-out the Virgin Money Tokens (see clause 3.5 below); or

3.3.4.3                       use the Virgin Money Tokens to purchase VAPs (see clause 3.6 below).

3.4                A User can only purchase Virgin Money Tokens from Us and Virgin Money Tokens can only be sold to Us.

3.5                Cash-out of Virgin Money Tokens:

3.5.1                    A User may elect to cash-out all or a portion of the User’s Virgin Tokens. 

3.5.2                    By electing to cash-out all or a portion of a User’s Virgin Money Tokens, the User shall make an irrevocable offer to sell such Virgin Money Tokens back to Us, and if and when we accept that offer We shall pay into the User’s nominated bank account the value (in ZAR) of such Virgin Money Tokens (e.g. if the User elects to cash-out 200 Virgin Money Tokens, then We will pay ZAR 200 into the User’s bank account).

3.5.3                    Daily and/or monthly maximum cash-out amounts apply and may change from time to time without prior notice to You.

3.5.4                    It may take up to 2 (two) days for cashed-out Virgin Money Tokens to reflect into the User’s nominated bank account.

3.6                Purchase of VAPs

3.6.1                    A User may instruct Us to purchase a VAP from any of the Selected Merchants made available on the App on the User’s behalf.

3.6.2                    Although We may, following Our receipt of Your instruction to do so, purchase a VAP on Your behalf, the VAP is made available to You by the applicable Selected Merchant and not by Us.  We will not be liable for any complaint, claim or dispute you might have in relation thereto. You may be asked to agree to the terms and conditions of the relevant Selected Merchant before purchasing the VAP.  We suggest that you read those terms and conditions carefully as these will govern all of your rights in relation to the VAP that you have bought, against the relevant Selected Merchant.

3.6.3                    We will not charge a fee for purchasing a VAP on Your instruction and on Your behalf.  

3.6.4                    We will buy the required number of Virgin Money Tokens back from You, equivalent to the value to be paid for the VAP, and use the money so released to pay the VAP provider on your behalf. As a result You will only notice that Your Virgin Money Tokens held in Your Wallet will be reduced by the value of the VAP purchased.

3.6.5                    We shall be entitled, without prior notice to You, to add or remove one or more Selected Merchants.  The details of Our Selected Merchants appear on our website.  You should visit Our website regulatory to check who Our Selected Merchants are.

3.7                We shall be entitled, without prior notice to You, to add or remove the Services available from time to time.  Where any of the Services are removed, We will ensure that there is no negative impact to Your Virgin Money Tokens. 

3.8                As a condition to the rendering of any Service by Us to You, You must provide Us with the information and documentation referred to in clause 4 below.  Accordingly, We will only render a Service to You following receipt of the information and documentation referred to in clause 4 below.

4.           ANTI-MONEY LAUndERING AND OTHER ACTIVITIES

4.1                You acknowledge and understand that We are an approved financial services provider (FSP number: 31730) in terms of the Financial Advisory and Intermediary Services Act 37 of 2002 and therefore an accountable institution in terms of FICA.

4.2                In terms of the anti-money laundering and counter-terrorist financing legislation applicable to Us (including FICA), We are obliged to identify and verify the identities of all Our clients.

4.3                You agree to provide Us with all such information and supporting documentation as We may require/request from You in terms of applicable anti-money laundering and counter-terrorist financing legislation (including FICA) or any other relevant legislation.

4.4                If such information and/or documentation is not so provided, We shall not render any Service to You.

4.5                Accordingly, You agree that You will provide Us with any of the following information and/or documentation as may be requested by Us prior to Us rendering any Service to You:

Information required

Documentation required

Full Name(s)

Date of Birth

Country of Citizenship / Nationality

Identity Number

For South African Citizens:

        Official bar-coded identity document (green) or identity card (smart-ID-card)

For foreign residents:

        Valid passport

Current Residential (Physical) Address

Recent documentary evidence of Your residential address (i.e. a copy of Your utility bill, or any of the other documents referred to the “Schedule of acceptable documents” that appear at the end of this Agreement)

 

4.6                You consent to Us disclosing any such information provided by You in terms this clause as may be required in terms of applicable anti-money laundering and counter-terrorist financing legislation (including FICA) or any other relevant legislation.

4.7                You shall not use the App and/or Services to commit any of the following acts:

4.7.1                    any act which undermines Our reputation, privacy, intellectual property and other rights;

4.7.2                    any act which assists in, allegedly results in, or may actually result in, money laundering, terrorist financing or impermissible or illegal trading;

4.7.3                    any act which involves Your use of an invalid credit or debit card or the credit or debit card of another person or User without such other person’s or User’s consent;

4.7.4                    any act which involves Your use of an invalid bank account or the bank account of another person or User without such other person’s or User’s consent;

4.7.5                    any act that We or any EFT payment network reasonably believe to be an abuse of the card system or a violation of card association or network rules or any other rules governing or applicable to such payments network, as may be updated from time to time.

5.           PROVISIONS OF THE CONSUMER PROTECTION ACT, 2008

5.1                The provisions of this Agreement contain assumptions of risk and/or liability by You and limit and exclude liabilities, obligations and legal responsibilities, which We will have towards You and other persons. The provisions of this Agreement also limit and exclude Your rights and remedies against Us and place various risks, liabilities, obligations and legal responsibilities on You. These provisions may result in You being responsible for paying additional costs and amounts and We may also have claims and other rights against You.

5.2                In particular, amongst others, please make sure to consider the provisions of clauses 12 to 15 very carefully, because they have an impact on the risks You carry in making use of the Software, the App and the Services, and on Our liability to You.

5.3                To the extent that any Services provided under this Agreement are governed by the CPA, no provision in this Agreement is intended to contravene the applicable provisions of the CPA, and therefore all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure that the applicable provisions of the CPA are complied with.

6.           REFERRALS TO OTHER USERS

6.1                We will identify anyone who uses Your code to register with Us as a User, and We may allocate Virgin Money Tokens to You and to that User so referred, at no cost to You nor such referred User. 

6.2                The value of Virgin Money Tokens that may be allocated to Us shall be based in Our sole discretion and may be changed from time to time without prior notice.

6.3                A code can be obtained on the App under the “Refer and Earn” tab or can be shared by the User in an SMS or via other messaging / communications channels.

6.4                You acknowledge and understand that Virgin Money Tokens allocated to You in terms this clause shall expire within 7 (seven) days of allocation if not used.  By “use”, We mean that the recipient must successfully download the App and successfully complete his or her registration.  If not completed successfully the Virgin Money Tokens will be reversed and ownership will vest with Us.

7.           GENERAL TERMS RELATING TO VIRGIN MONEY TOKENS

7.1                You acknowledge and understand that:

7.1.1                    Your resignation as a User, and Your election to purchase and/or transfer Virgin Money Tokens, does not represent an investment with Us in any manner whatsoever;

7.1.2                    Virgin Money Tokens are not, and do not, represent currency or legal tender;

7.1.3                    once You have paid money to Us for the purchase of Virgin Money Tokens and We have sold a Virgin Money Tokens to You, then the money You paid becomes Our asset and the Virgin Money Tokens becomes Your asset.  You have no claim on the money You paid for the Virgin Money Tokens and the only way to receive money from Us is to sell the Virgin Money Token(s) back to Us and to be paid by Us for those sold Virgin Money Tokens;

7.1.4                    any transfers of money to purchase Virgin Money Tokens from Us are made at Your own risk and We do not accept any liability for any loss, damage (whether direct or consequential), or delays experienced in relation to the purchase, transfer, or cash-out of Virgin Money Tokens;

7.1.5                    We will keep a record of all the Virgin Money Tokens You purchased, transferred or cashed-out which record You can access via the App; and

7.1.6                    Any Virgin Money Tokens held in Your Wallet shall expire within three (3) years from the date on which the Virgin Money Tokens was purchased by You and/or transferred to You.  We therefore recommend that You ensure that You take all reasonable steps to prevent any expiry of Your the Virgin Money Tokens by cashing out or transferring Your Virgin Money Tokens as per this Agreement prior to the expiry date of the affected Virgin Money Tokens.

8.           APPSTORE TERMS

The ways in which You can use the App and the Services may also be controlled by the rules and policies of the app store from which You download the App. Such rules and policies will apply instead of these terms where there are differences between the two.

9.           OPERATING SYSTEM REQUIREMENTS

This App requires a smartphone device with internet connection to be operational. 

 

10.        ELECTRONIC TRANSMISSION OF INFORMATION

10.1             The transmission of data or information (including communications by e-mail) over the Internet or other publicly accessible networks may not always be secure, and is subject to possible loss, interception, or alteration while in transit. Accordingly, We do not assume any liability, without limitation, for any loss or damage You may experience or costs You may incur as a result of any transmissions over the Internet or other publicly accessible networks, including but not limited to transmissions involving the Software, App, Services or e-mail to Us containing Your Personal Information.

10.2             We will take commercially reasonable steps to safeguard the privacy of and keep confidential the information You provide to Us and will treat such information in accordance with the provisions of this Agreement. In no event, unless and only to the least extent required otherwise by applicable law, will the information You provide to Us create any fiduciary obligations for Us, or result in any liability for Us in the event that, in spite of Us taking reasonable steps to prevent it, such information is lost, damaged or destroyed, or accessed or processed by third parties, without Your or Our consent.

11.        SOFTWARE LICENCE 

11.1             We hereby grant You a personal, non-exclusive, non-transferable, fully paid up license (with no right to sub-license, transfer or assign) to install a single instance of the Software onto either the hard drive or primary memory of a single Mobile Phone, and to use the Software in conjunction with that Mobile Phone, in the Republic of South Africa, for Your own internal data processing purposes, strictly upon the terms and subject to the conditions of this Agreement.

11.2             The Software and the Services are not automatically supported and the license does not entitle You to any updates, upgrades, new releases or support services for the Software or the Services, and We may provide these in Our discretion from time to time. You agree that the terms of this Agreement shall apply to any updates, upgrades or new releases provided to You. If You think the Software or the Services are faulty or misdescribed, please go to www.virginmoney.co.za to contact Us talktous@virginmoney.co.za.

11.3             Any return, exchange or refund relating to the Services will be on the basis of Our return, exchange and refund policy. Note that any return, exchange or refund relating the VAPs / Selected Merchants can be found on www.virginmoney.co.za under the “Merchant” tab on the App.

11.4             You undertake to always use the latest version of the App. The App Store may notify You of any upgrades/updates that are available to You. The upgrades and updates provided are, amongst other things, to ensure that the App is as secure as possible and as a result We strongly encourage You to install such upgrades and updates as soon as possible after they are made available by the App Store.  Subject to the remainder of this Agreement, We shall not be liable for any security / data bugs that You may experience if You fail to install the latest version of the App.

11.5             If We have to contact You, for instance in relation to maintenance and support of the Software or the Services, We will do so by email, or SMS or telephonically, using the contact details You have provided to Us.

11.6             You can only transact through the App in line with the banking facilities available to You through Your personal bank account.

11.7             All ownership rights (including Intellectual Property rights) in and to the Software (including updates, upgrades and new releases) and the App and all Intellectual Property, are and shall remain vested in Us, Our licensor(s) or a party nominated by Us and shall never pass to You. You shall not during or at any time after expiry or termination of this Agreement, question or dispute Our ownership of the Software, App or Intellectual Property. Except as and to the extent authorised in this Agreement, You shall have no right to use Our Intellectual Property in any manner whatsoever.

11.8             You may not make a copy of the Software or App for back-up purposes. Other than as expressly provided for herein, You may not in any manner copy or otherwise reproduce the Software (wholly or partially) or the App.

11.9             Except as expressly set out to the contrary herein, You will not, and will not assist any third party to, copy, reproduce, transmit, distribute, sell, resell, license, sub-license, rent, lease, transfer, assign, disclose, de-compile, reverse compile, reverse engineer, disassemble, modify, publish, create derivative works from, perform, incorporate into another website, computer program or product, or in any other way reduce to human-perceivable form or exploit all or any part of the App, the Software or the Intellectual Property. If You sell any device on which the App is installed, you must remove the App from it.

11.10          You irrevocably undertake and agree that upon termination for whatever reason of this Agreement and/or any license granted under this Agreement, You shall –

11.10.1              immediately cease all use of the Software and any other Intellectual Property;

11.10.2              immediately de-install or delete (as appropriate) every copy (including partial copy) of the Software and any other Intellectual Property acquired or made by You from wherever it is installed;

11.10.3              destroy every copy (including partial copy) of the Software and any other Intellectual Property acquired or made by You, by no later than 3 (three) days thereafter.

11.11          Third party software provided with the Software is licensed to You on its accompanying license terms, including warranties and remedies.

11.12          You agree that any breach by You of any provision of this clause 11 shall be a material breach of this Agreement.

12.        RISKS AND RESPONSIBILITIES

12.1             You agree to use the Software, App and/or Services in accordance with the terms of this Agreement and to comply at all times with all applicable laws, regulations and ordinances.

12.2             Blockchain and other distributed ledger technology networks and Exchanges may go offline as a result of bugs, hard forks, or a number of other unforeseeable reasons, and this may affect Your Virgin Money Tokens and Your ability to make use of Your Virgin Money Tokens. While We will do Our best to prevent this, We do not assume the risk of losses arising as a result of these causes.

12.3             Except as regards Your reliance on the Software and the Services to do so, You accept the risk of sending and receiving Virgin Money Tokens. In entering into any transaction involving any Virgin Money Tokens, including sending any Virgin Money Tokens to or receiving Virgin Money Tokens from any User, You represent that You have been, are, and will be solely responsible for making Your own independent appraisal and investigations into the risks of the transaction. You represent that You have sufficient knowledge, and experience to make Your own evaluation of the merits and risks of any transaction.

12.4             You agree that if anything goes wrong in relation to the Exchanges (including if an Exchange fails or becomes temporarily or permanently dysfunctional), Our rights and remedies will be limited by the terms and conditions of the Exchanges, and this will affect Our ability to provide Services, and otherwise comply with this Agreement. You understand and agree that if anything goes wrong that is in any way related to the functioning of or services provided by any Exchange, or is otherwise controlled by any Exchange, We will only be obliged to take steps or pay any amount to You to the extent that We have received relief from the applicable Exchange.

12.5             You are responsible for complying with applicable law. You must ensure that You are fully aware of all laws that may apply to You in relation to Your access to and use of the Software and the Services and to the transactions envisaged in or related to this Agreement, and agree that You are fully responsible for complying with such laws. You agree that We are not responsible for determining whether or which laws may apply to Your transactions, including any tax laws, transfer pricing rules or exchange control regulations; and are not responsible for ensuring that You comply with such laws. You are solely responsible for compliance with applicable laws, including notifying, withholding, collecting, reporting and remitting any taxes and duties that are payable as a result of Your access to and use of the Software and the Services and any transactions You may be involved in.

12.6             You are aware of and accept the risk of operational challenges. We may experience cyber-attacks, cyber-security breaches, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions in the Service or Your access to the App, and may even affect Your Wallet. While We will do Our best to minimise the inconvenience and losses sustained as a result of such circumstances and will take reasonable steps to guard against them, You accept the risk of transaction failure resulting from such operational or technical difficulties, including those resulting from sophisticated attacks. You agree not to hold Us accountable for any related losses, unless it was clearly Our fault.

12.7             We do not advise on trading or any other financial activity. Our Services do not include, and it is not Our intention to give You any form of investment or financial advice, or professional advice of any kind. You should seek Your own independent financial advice before opening a Wallet, purchasing any Virgin Money Tokens or otherwise entering into any transactions with Us. You acknowledge that You have been free to secure independent legal, financial and other advice as to the nature and effect of the Services and Your making use thereof, and of all of the provisions of this Agreement and the relevant Exchanges’ terms and conditions, and that You have either taken such independent advice or dispensed with the necessity of doing so.

12.8             We must comply with applicable law. Applicable law, regulation, and/or orders or rulings by regulatory and other governmental bodies may require Us to freeze transactions, withdrawals or contributions (or any combination thereof), or provide information (including Personal Information) regarding Your identity, location and/or Your Wallet. Further, Our record-keeping and customer verification procedures are subject to change at any time as required by law, or industry practices. We must comply with applicable law and regulation and You accept any inconveniences to You or other consequences resulting from Our compliance.

13.        ATTACKS

13.1             While We will take all reasonable steps to prevent and mitigate attacks, there will sometimes be attacks on blockchain networks, the Exchanges, the Software or the Services in spite of Us taking such steps, and in the event of such an attack there may be nothing that We can reasonably do to prevent its consequences. With respect to the Software, if We are able to confirm that any Virgin Money Tokens or that Your Wallet has been compromised or is under attack, We may immediately halt the provision of the Services, the functioning of the Software, and any transactions involving the Virgin Money Tokens, or Your Wallet. In the event of such an attack, We shall do Our best to do what a reasonable person in Our place would have done, considering the circumstances and what is commercially viable and reasonable.

13.2             No technology is ever perfect and there is no way of Us preventing all cybersecurity attacks. Accordingly, We make no representation and do not warrant the safety or security of the Software or the Services and are not liable for any lost value or stolen property, unless and only to the extent that We willfully or grossly negligently failed to implement reasonably security measures.

14.        BLOCKCHAIN NETWORKS AND UNDERLYING PROTOCOLS AND SOFTWARE

14.1             We do not create, own, control or adapt any of the underlying protocols or software of blockchain networks. In general, such underlying software will be open source software that can be used, copied, modified, and distributed by any person. Accordingly, You acknowledge and agree that We are not responsible for operation of the underlying software and networks that support the Virgin Money Tokens, and make no guarantee of functionality, security, or availability of such software and networks. You acknowledge and agree that We are not in any way responsible for any of the underlying protocols or software.

15.        WARRANTIES AND DISCLAIMERS 

15.1             We warrant that the Software shall operate substantially in accordance with its published functional specifications for 90 (ninety) days from date of its installation, provided that it is used in accordance with all minimum configuration and environmental conditions specified in the Documentation. Software under warranty may require ongoing support and the warranty provided is not a substitute for support.

15.2             We warrant that We are the owner of or have valid title to the Software and are entitled to grant the rights to You as envisaged in this Agreement.

15.3             Should any fault arise in the Software during the aforesaid warranty period, You shall immediately notify Us in writing describing the defect. We shall at Our sole option and within a reasonable period of time, repair or replace the defective Software. Except to the extent that this is prohibited by applicable law, this clause states Our entire liability and Your exclusive remedy for non-conformance with any warranty.

15.4             We do not warrant that the Services, the Software or App will be completely free from errors or that errors will be corrected completely, nor that it will meet Your requirements, nor that it will operate in all combinations selected for use by You.

15.5             You acknowledge that whilst We take reasonable care to exclude then-known viruses, malware, worms and Trojan horses from the Software, no warranty is given that the Software is free of viruses, worms or Trojan horses.

15.6             You agree that We shall not be responsible for any malfunction, non-performance or degradation of performance of the Software which is caused by or results from, directly or indirectly, any alteration to, adjustment of, attachment to, or modification of the Software by anyone other than Us.

15.7             Subject to clause 11.3 and except as expressly provided in this clause 15 and except as required by applicable law, the Services, the Software and the App are provided “as-is”. Warranties given by Us in terms of this Agreement extend solely to You and are not transferable.

15.8             You must ensure that the correct User recipient is selected when you transfer Virgin Money Tokens to another User. We will not be responsible for any losses if You fail to correctly select the User recipient.

15.9             We will also not be responsible if You insert the incorrect amount for the cashing-out of Virgin Money Tokens.

15.10          The App is only intended to be used for payment for goods and/or services as contemplated expressly in this Agreement, and We accept no liability otherwise.

15.11          You warrant that You are the lawful owner of the bank account whose details are registered to You in the App.

16.        confidentiality

You shall treat all confidential information as strictly confidential and not use it for any purpose other than performing Your obligations or exercising Your rights upon the terms of this Agreement. You shall not disclose confidential information to any person.

17.        PRIVACYAND USE OF PERSONAL INFORMATION AND DATA 

This section sets out how We use and protect any information provided by You when registering for and making use of the App.

 

17.1             We are committed to ensuring that Your privacy is protected. All information requested will be used within the terms of this Agreement.

17.2             We may collect the following information, which We need in order to provide You with the Services and access to the Software:

17.2.1                 name, surname and ID Number;

17.2.2                 contact information including cellular number and email address;

17.2.3                 geographic information using GPS functionality;

17.2.4                 transactional history and any other related information.

17.3             We shall process Your Personal Information in accordance with the conditions for lawful Processing as set out in POPIA.

17.4             You have the right to access Your Personal Information and, should the information be inaccurate, You may request Us to correct Your Personal Information.

17.5             You consent to Us using the information gathered to: create and administer Your Wallet; provide Services to You; meet legal or other regulatory obligations imposed on Us; audit usage of Our App and services (including the Services); understand Your needs and to provide a better service, and in particular for internal record keeping; transaction verification and authentication; detect fraud and manage risk; improve Our internal operations and efficiencies;  improve Our products and services;  send You promotional communications about new products, special offers or other information which We think You may find interesting using the email address which You have provided; to do a credit bureau look up on the ID number You provided; and otherwise perform Our obligations and exercise Our rights under this Agreement.

17.6             To the extent the relevant provisions of POPIA are in effect in relation to such rights, You may object to Our Processing of Your Personal Information in accordance with the provisions of POPIA. If you do so and We are not able to Process Your Personal Information then We may not be in a position to provide You with the Services.

17.7             It should also be noted that if some of the Services provided by Us to You require Us to Process the Personal Information of someone else, and that person has not consented to Us doing so, this will affect Our ability to provide the Services to You and may mean that We are not in a position to provide those Services to You. Any recipient of your Virgin Money Tokens must accept the provisions of this Agreement and, if they have not done so, We will not facilitate transactions between You and such recipient. For the avoidance of doubt, Our failure to provide the Services to You in such instances will not be a breach of this Agreement by Us and will not give rise to liability on Our part.

17.8             You hereby agree that We may send You information: for the marketing of goods and services to You, for the marketing of goods and services to You on behalf of third-party companies, when We believe that these offers may be of interest to You; and that We may provide de-identified or aggregated information to third-party companies for the provision of analytical ratings about Your transactional patterns behaviours and customer care data and information, including call centre reports and sales assistance information.

17.9             You have the right to request that We no longer contact You regarding the marketing of goods and services to You, whether for Our own purposes, or on behalf of third parties. Such request can be made through the contact details provided in clause 32 and upon receipt of such request, We shall desist in such direct marketing.

17.10          From time to time, We may also use Your information to contact You for market research purposes. You consent to Us contacting You by email or on Your cellular phone number. However, if You would like Us to refrain from doing so, please let Us know and We will comply with Your request.

17.11          We may use the information to customise the App according to Your interests.

17.12          We may elect to share Your personal information with:

17.12.1              service providers under contract with Us where this is necessary for Us to perform Our obligations under this Agreement;

17.12.2              parties where We are required to do so by law, court order, or in compliance with applicable identity verification or legal reporting obligations, and that, to the extent permitted or required under applicable law, We may do so even when Your relationship with Us is terminated  or Your Wallet is cancelled; and

17.12.3              other third parties, provided We have received Your explicit consent.

17.13          You expressly consent that We may process and further process your Personal Information to any of Our group companies, which may be located outside of South Africa for the above purposes (in which case, We will ensure that the location to which Your Personal Information is transferred will be a location with at least as onerous restrictions on the Processing of Personal Information as are applicable in South Africa ) and that We may disclose Your Personal Information to any person who provides services to Us or acts as Our agent to whom We have transferred or propose to transfer any of Our rights and/or duties in respect of Your  Wallet, pursuant to Our performance of this Agreement; and We will ensure that such persons agree to Our privacy policies in Processing Your Personal Information. Such policies can be accessed at: http://virginmoney.wpengine.com/our-privacy-policy/.

17.14          Upon termination of the Agreement, and upon Your written request, We shall delete or destroy all of Your Personal Information, unless and to the extent that We are required by law to retain records of Your Personal Information. You understand and accept that any of Your information stored on the blockchain may not be entirely anonymous due to the nature of blockchain technology, and You accept that by using Services You are making Your pseudonymous (indirectly identifiable) information available to third parties who are able to access the blockchain.

18.        YOUR CONSENT

You acknowledge that you accept clause 17, and specifically allow for the collection, storage, Processing and disclosure of Personal Information as described in this Agreement and for the purposes of this Agreement. Should You or We terminate use of the App, consent is still given to Our retention of the information We have already collected and for the uses as specified in this Agreement. If You do not consent to Us Processing your Personal Information, We cannot fulfill the terms of the Agreement.

19.        NON-PERSONAL INFORMATION 

Notwithstanding anything contained in this Agreement regarding Your information, the following information is not regarded as Personal Information for purposes of this Agreement, (a) information which cannot be linked back to You; and (b) non-personal statistical information i.e. information which has been aggregated and cannot be linked back to You.

20.        SECURITY 

20.1             We are committed to ensuring that Your information, including Your Personal Information and Your information relation to payments, is secure. In order to prevent unauthorised access or disclosure, We have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information We collect. We would be happy to provide further details on this to the extent reasonably requested by You.

20.2             In the event that an unauthorized person has accessed or acquired Your Personal Information, We shall notify You as soon as reasonably possible using the contact information You provided, unless prohibited in terms of applicable law or relevant authorities. Our notification shall contain sufficient information to allow You to take protective measures against the potential consequences of the security breach.

20.3             In no event, unless and only to the least extent required otherwise by applicable law, will the information You provide to Us create any fiduciary obligations for Us, or result in any liability for Us in the event that, in spite of Us taking reasonable steps to prevent it, such information is lost, damaged or destroyed, or accessed or processed by third parties, without Your or Our consent.

20.4             The cash-out shall be by way of EFT, which will be subject to the relevant gateway provider’s security validation and policies. 

21.        OTHER IMPORTANT INFORMATION 

21.1             You are responsible for maintaining the strict confidentiality of Your Wallet’s credentials, including without limitation Your login details, App PIN, email, wallet address, Wallet, and of all activity on Your account.

21.2             We will never ask You to disclose Your App PIN. You agree to report any message You receive that asks for Your account details, App PIN. It is advisable to change Your App PIN regularly (at least every 2 (two) to 3 (three) months) in order to reduce the risk of a security breach of Your account. Please choose a App PIN that will not be easy to guess or work out, and as far as possible has no meaning. Do not ever allow anyone to access Your Wallet or to watch You accessing Your Wallet. You agree to take all steps to ensure that Your login details are not stored by Your mobile device or cached or otherwise recorded, and should never use any functionality that allows login details or passwords to be stored by the computer You are using.

21.3             If You have any security concerns about Your Wallet, login details, App PIN, other security feature being lost, stolen, misappropriated, used without authorization or otherwise compromised, please change Your App PIN and contact Us immediately. Any undue delay in doing so will affect the security of Your Wallet , the Software and the Services, and may result in You being liable for any losses as a result.

21.4             You agree to ensure that Your e-mail account(s) are secure and only accessible by You, as Your e-mail address can be used to reset passwords or to communicate regarding the details and security of Your Wallet, the App and the Services. If any of the e-mail addresses registered with Your Wallet are compromised, please notify Us and contact Your e-mail service provider immediately.

21.5             In cases of theft or fraud, You should contact Your bank and lodge a case with the South African Police Services.

21.6             We shall not be liable for any fraudulent activity initiated through the downloaded copy of the App.

21.7             Neither We, nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this section of the App. You acknowledge that such information and materials may contain inaccuracies or errors and We expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.

21.8             Please ensure that You log out of the App when You are finished using it to prevent anyone else from utilising it without Your permission.

21.9             Should You be resident in any country where the use, license or disposition of the Software or App is prohibited by law, You should refrain from registering or using the Software or App in any manner.

22.        closure of your wallet

22.1             Subject to the provisions of clause 22.2 below, You may terminate this Agreement at any time by submitting a request to Us to spot@virginmoney.co.za close your Wallet. We will give effect to Your request to close Your Wallet after You have indicated to Us whether You want to a) transfer the remaining balance of Your Virgin Money Tokens to another User;  b) cash-out the balance in terms of this Agreement.  Your request to close Your Wallet will be treated as You having advised Us of Your intention to terminate this Agreement. This Agreement will be terminated upon Us closing Your Wallet.  You agree and understand that after Your Wallet has been closed by Us, You will no longer have any access to the Wallet.

22.2             You may not cancel Your Wallet if We believe in Our reasonable discretion that such cancellation is being performed in an effort to evade an investigation or any liability (criminal or otherwise), or in an effort to avoid paying any amounts otherwise due to Us or any relevant governmental or regulatory authority. In this instance, We reserve may not act upon Your request to purchase or transfer Your Virgin Money Tokens.

22.3             You may also cancel this Agreement without reason and without Us imposing a penalty on You within 7 (seven) days of the conclusion of this Agreement by notifying Us of the cancellation in writing through the contact information in clause 32. If you (or We) cancel this Agreement then you must also uninstall the App and delete all copies of the Software and Confidential Information acquired or made by You in terms of this Agreement.

23.        RECORDS

A copy of an invoice reflecting each of Your transactions with Us will be sent to Your registered email address.

24.        fees, charges and COSTS 

24.1             We do not charge a fee for rendering a Service.  Should We decide to charge fees in future, then We will notify You of this, as well as of any additional terms and conditions which may be applicable in relation to the fees.

24.2             You will also be responsible for all standard data costs associated with the download and use of the App.

24.3             All Services provided to You are executed on the Exchange and accordingly, once authorised by You, are automatic and cannot be reversed.  Once You select Your Service it cannot be reversed so please ensure that all information is correctly inserted and that You make the correct / intended decision in relation to a Service, including as regards the recipient of Your Virgin Money Tokens and the number of Virgin Money Tokens being transferred.

24.4             You will indemnify Us against any losses resulting from:

24.4.1                 You failing to pay the relevant costs or fees;

24.4.2                 You providing the wrong recipient/payment information;

24.4.3                 Someone else carrying out a payment instruction without Your permission;

24.4.4                 The recipient of any Virgin Money Tokens using such Virgin Money Tokens for purposes other than foreseen or intended by You.

25.        LIMITATION OF LIABILITY 

25.1             To the fullest extent permissible by law, under no circumstances whatsoever, including as a result of Our negligent acts or omissions or those of Our servants or agents or other persons  for whom in law We may be liable (“Others”) –

25.1.1                 shall We or any Others be liable for any direct, indirect, special, or consequential loss or damages (for instance, loss that is too far removed from or not foreseen by the parties as being connected to this Agreement) howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), sustained by You, servants or agents, including any loss of profits, loss of revenue, loss of operation time, corruption or loss of information and/or loss of contracts;

25.1.2                 shall We be liable for loss of Your data regardless of how such loss is occasioned. You acknowledge that back-up of such data is Your responsibility and can be undertaken easily so as to recover any data which is lost. Accordingly, You indemnify and hold Us harmless against any losses, damage and damages incurred by You arising directly or indirectly out of or in connection with the loss of any of Your data.

25.2             To the fullest extent permissible by law (including consumer laws, where applicable) Our or any Others’ (in whose favour this constitutes a benefit for a third party) maximum aggregate liability for any direct loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by You, shall not exceed an amount equivalent to the value of the Virgin Tokens held in Your Wallet at the time the cause of action arises.

26.        Breach

26.1             Should You breach (or should You permit any third party making use of the App or the Services via Your Wallet to engage in conduct that would constitute a breach if performed by You) any provision or term of this Agreement and fail to remedy the breach within 7 (seven) days of receipt of notice requiring You to do so and warning that if it is not so remedied that We may exercise Our rights in terms of this clause, then We shall be entitled without further notice to You, and in addition to any other remedy available to Us in law or under this Agreement, to:

26.1.1                 cancel this Agreement; or

26.1.2                 claim specific performance of any obligation whether or not the due date for performance has arrived; or

26.1.3                 deactivate or suspend Your Wallet or access to the App or Services,

in either event without prejudice to Our right to claim damages.

26.2             You must cash-out or transfer the Virgin Money Tokens (if any) within 7 (days) after We have taken any of the steps referred to above (other than cancellation of this Agreement and/or restriction, suspension or cancellation of Your Wallet and/or use of the App as contemplated in clause 26.3 below).  Should you not cash-out or transfer the Virgin Money Tokens, as the case may be, within 7 seven days, then You will be deemed to have elected to cash-out the Virgin Money Tokens whereupon We shall make payment of the value of the Virgin Money Tokens (if any) into Your designated bank account.  

26.3             Notwithstanding anything else to the contrary in this Agreement,  We reserve Our right to cancel this Agreement and/or restrict, suspend or cancel Your Wallet and/or use of the App where We reasonably suspect that Your Wallet has been or is being used in relation to any criminal or otherwise illegal activity. In such event We will, unless We are prohibited from doing so in law, to take reasonable steps to provide You with notice of any decision to cancel this Agreement and/or restrict, suspend or cancel Your Wallet and/or use of the App.  We may be prohibited in law from cashing-out the balance of Your Virgin Money Tokens (if any), where We have  cancelled this Agreement, and/or suspended or cancelled Your Waller and/or use of the App in terms of this clause 26.1.3.

26.4             If a technical problem causes any Services (including access to the App) to become unavailable, any system outage or any Wallet errors, We may temporarily suspend access to the Services or the App until the problem is resolved.

27.        GOVERNING LAW, JURISDICTION AND LANGUAGE 

27.1             This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.

27.2             The parties hereby irrevocably submit to the jurisdiction of the High Court of South Africa (South Gauteng High Court, Johannesburg) (or any successor to that court) in respect of all and any matters arising out of or in connection with this Agreement.

27.3             This Agreement has been concluded in the English language. In the case of any conflict between the English and any other translation version, the English version shall prevail.

28.        CIRCUMSTANCES BEYOND OUR CONTROL

28.1             We shall be under no liability to You in respect of anything which, in the absence of this provision might constitute a breach of this Agreement, arising by reason of  circumstances beyond Our reasonable control, even if We should have foreseen the possibility of the occurrence or existence of those circumstances.

28.2             For the purposes hereof, this includes acts or omissions of any government, government agency, provincial or local or similar authority, civil strife, riots, sabotage, insurrection, acts of war or public enemy, illegal strikes, combination of workmen, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), prohibition of exports, inability on Our part due to such circumstances to obtain goods or services from its suppliers (including telecommunications suppliers and Selected Merchants), rationing of supplies, flood, storm, fire or any other circumstances (without limitation) beyond the reasonable control of the party claiming “Force Majeure” (which means unforeseeable circumstances that prevents someone from fulfilling a contract) and comprehended in the term Force Majeure.

29.        WHOLE AGREEMENT, AMENDMENTS AND UPDATES 

29.1             This Agreement constitutes the whole agreement between the parties relating to its subject matter, supersedes all prior or oral or written communications and representations with respect to the App and the Software, and, prevails over any conflicting or additional terms in any document or other communication between the parties leading up to and during the term of this Agreement.

29.2             We may amend this Agreement from time to time. Except where We specifically stated that We will not provide You with prior notice in this Agreement, We will provide You with 7 (seven) days’ advance notice of any changes to the Agreement.

29.3             You should regularly view this page to ensure that You are satisfied with any changes. The revised version of this Agreement will apply after expiry of the 7 (seven) day period. If You are not satisfied with the revisions made, You should stop using the App immediately.

29.4             To the extent permissible by law, We shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.

30.        SEVERABILITY 

Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent thereof and shall be treated as not written and severed from the balance of this Agreement, without invalidating the remaining provisions.

31.        INTERPRETATION 

In this Agreement –

31.1             clause headings are for convenience and reference only and shall not be used in interpreting, modifying or amplifying its terms or clauses;

31.2             unless a contrary intention clearly appears, words importing any one gender include the other two, the singular include the plural and vice versa, and, natural persons include created entities (corporate or unincorporate) and the state and vice versa;

31.3             any reference to an enactment is to that enactment as at the date of acceptance of this Agreement and as amended or re-enacted from time to time;

31.4             if a provision in a definition confers rights or imposes obligations on a party, effect shall be given to it as if it was a substantive provision in the body of the Agreement, notwithstanding that it is only in a definition;

31.5             any reference to “days” shall mean business / working days and shall be calculated by including the first day excluding 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 day which is not a Saturday, Sunday or public holiday;

31.6             its termination shall not affect those terms as expressly provide that they will operate after termination or which of necessity must continue to have effect after termination, notwithstanding that the clauses themselves do not expressly provide for this;

31.7             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, and You agree not to use or rely upon that rule in any proceedings in relation to this Agreement;

31.8             any reference to a party to it shall, if such party is liquidated or sequestrated, be applicable also to and binding on that party’s liquidator or trustee;

31.9             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 take effect as limiting the generality of any preceding words;

31.10          the words “other” and “otherwise” shall not be construed as being of the same kind or nature as any preceding words where a wider construction is possible.

32.        CONTACT 

Should You have any questions or concerns regarding this Agreement, the App, or the Services, please consider the information provided at www.virginmoney.co.za or please contact Us at  talktous@virginmoney.co.za; or at 1st Floor, 35 Ferguson Road, Illovo Johannesburg or 011 595 0895. If You have any banking related queries please contact your bank directly.

33.        ACCEPTANCE 

By registering for the App, You agree and acknowledge that You accept the terms and conditions of this Agreement and, further, represent and warrant that You are of full legal age (18 years), or are emancipated or have Your guardian’s or parent’s consent to enter into this Agreement.

 

SCHEDULE OF ACCEPTABLE ADDRESS VERIFICATION DOCUMENTS

Document Type

Document issue date

Validity Period

Bank statement/ correspondence from the Bank

Not less than three months

• Only acceptable from a bank operating from, or incorporated in, a Financial Action Task Force member country
• Must indicate an existing product relationship with the institution
• If obtained from a bank directly, it must include the bank enquiries stamp
• Please note that transaction history is not considered a bank statement

Expatriate declaration

Not less than three months

Letter on a company letterhead from the employer confirming employment, contract period (if not permanent) and address. Must be accompanied by a valid residency permit and/or work visa

Insurance company contract or Letter

Not less than one year

• Must be on the letterhead of the insurance company
• Letter or contract must confirm the existence of a long-term or short-term insurance policy

Lease or rental agreement

Must be in date

Must be signed by the client (tenant/lessee) and the landlord/lessor

Levy certificate issued by a body corporate, home owners association or managing agent

Not less than three months

• Applicable for properties in sectional title, cluster or share-block developments
• Must be on the letterhead of the applicable body corporate, home owner’s association or managing agent

Mobile phone account or Telkom account

Not less than three months

Mobile phone accounts only from South African mobile phone companies

Utility bill

Not less than three months

Can include pre-paid and metering services

Visitor’s (employee) declaration

Not less than six months

Standard template must be used and completed in full as well as signed and dated by the person conducting the site visit