T&C
Merchant Agreement
-Last Updated: March 2021-
PLEASE ENSURE THAT YOU’VE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THE THE MALL WEBSITE OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THIS 1) THE MALLMERCHANT AGREEMENT, THE 2) THE MALLACCEPTABLE USE POLICY, THE 3) THE MALLELECTRONIC COMMUNICATIONS DELIVERY POLICY AND, THE 4) THE MALLPRIVACY POLICY AND 5) THE MALLWEBSITE TERMS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR ANY OF THE POLICIES MENTIONED HEREIN, PLEASE DO NOT ACCESS OUR WEBSITE OR USE OUR SERVICES.
- OUR AGREEMENT
1.1. THE PARTIES TO THIS AGREEMENT: This Agreement describes a contractual relationship between you (“you” or “your”) and inTouch Interactive Marketing (Proprietary) Limited (“The Mall” “inTouch”, “we”, “us”, “our”) regarding your use of our services, concerning the services and/or products you provide to consumers. Using our services means that you must accept all of the terms and conditions contained in this Agreement and the agreements listed on our Legal Agreements page, including but not limited to, the The Mall Acceptable Use Policy, The Mall Electronic Communications Delivery Policy and the The Mall Privacy Policy.
1.2. CHANGES MADE TO THIS AGREEMENT: We may unilaterally decide to change the provisions contained in these terms and conditions and the policies mentioned above from time to time, provided, however, that such changes will not impose additional obligations on you concerning actions you had taken before the change became effective unless you specifically agree to such changes. If The Mall makes any changes to this Agreement that it deems to be material, it will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted on our website from time to time to see if it has been changed.
1.3. THE DEFINITIONS AND RULES OF INTERPRETATION APPLICABLE TO THIS AGREEMENT: The definitions and rules of interpretation contained in our The Mall Legal Definitions document are applicable to this Agreement.
- WHAT IS SAY The Mall?
2.1. OUR SERVICE: The Mall was founded in the midst of the Covid-19 pandemic. The Covid-19 pandemic has placed unprecedented strain on our local economy and may cause irreparable harm to small and medium-sized enterprises (‘SME’s). Our primary aim is to provide financial relief to SME’s during the Covid-19 pandemic through the sale of vouchers and products that will entitle consumers to a discount on goods and/or services when redeemed at a future date and subject to these terms and conditions. You will be entitled to determine your offering to The Mall Consumers within the parameters set by us.
2.2. HOW TO BECOME A MERCHANT: To become a Merchant and make use of The Mall Services, you must create a The Mall Merchant Account. By opening a Merchant Account and accepting the terms as outlined in this Agreement, you attest that you are establishing the Account to enable yourself to offer vouchers related to your goods and/or services to The Mall Users.
- HOW THE MALLWORKS FOR YOU:
3.1. HOW THE MALLWORKS: The Mallis an online marketplace that provides a platform to enable you to offer The Mall Users the opportunity to purchase vouchers and/or products related to your goods and/or services. The sale of these vouchers will be subject to your terms and conditions, however, they may be vetted by us prior to us listing same on our website for sale. There is a standard set of terms and conditions that your vouchers need to comply with in order for us to list them, these minimum requirements may be communicated to you when you apply to open your Merchant Account.
3.2. TAX OBLIGATION: It is your responsibility to determine what if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. The Mallis not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
3.3. YOUR REFUND POLICY AND PRIVACY POLICY: We recommend that you have a published cancellation policy, returns policy and a published privacy policy on your website or easily available to The Mall Users. We reserve the right to suspend your access to the The Mall Services until such time as you have these policies in place.
3.4. CONSUMER PROTECTION: The sale of vouchers through our platform may be subject to the consumer laws of the Republic of Namibia, in particular the provisions of the Consumer Protection Act, 2008 or the National Credit Act, 2005. It is your responsibility to ensure that policies are compliant with all applicable laws. The Mallis in no way responsible for ensuring that you are compliant with the laws of the Republic of Namibia.
3.5. PAYMENT REVIEW: Payment Review is a process by which The Mall reviews certain potentially high-risk transactions. If a payment is subject to Payment Review, The Mall will place a hold on the payment and provide notice to the User and the Merchant. The Mall will conduct a review and either clear or cancel the payment. If the payment is cleared, The Mall will provide notice to the User and the Merchant. Otherwise, The Mal lwill cancel all payments initiated.
- MERCHANT PAYMENTS
4.1. SETTLEMENT TIMES: The funds from transactions typically settle into our external bank account 14 (Fourteen) to 30 (Thirty) business days after the The Mall User purchases a voucher. Once a merchant has a balance of N$1000 (One Thousand Namibian Dollar) or more in their account, the merchant is able to request a withdrawal from within the store manager on the The Mall platform. Withdrawal requests received on or before a Friday each week are eligible for processing on the following cycle. Depending on interbank processing times, it usually takes 2 (Two) to 5 (Five) business days for withdrawals to be settled in the merchant’s bank account. Withdrawals are processed on Tuesday every week.
- OUR FEES
5.1. FEES OVERVIEW: Some fees are expressed as a percentage of the payment amount. All Fees are in Namibian Dollar unless otherwise stated. We reserve the right to adjust your future Fees at our sole discretion upon 30 days written notice to you. Unless an overriding agreement states otherwise, our fees are described below.
5.2. PAYMENT PROCESSING FEE: Our standard payment processing fee is 6.5% (Six point Five Percent) on the value of the vouchers you have sold through our platform to The Mall Users. We reserve our right to vary the standard payment processing fee depending on your risk profile. You will be notified via email following the approval of the application if the rate varies from our standard payment processing fee.
5.3. We reserve the right to increase processing fees in the future if our view of the Merchant’s risk profile changes. If a decision is made to increase the processing rate for the Merchant, The Mall will notify the Merchant via email.
5.4. REFUND FEES: In the event that you refund a payment to a User, The Mall retains the original payment processing fee.
- MARKETING AND PRIVACY
6.1. USE OF YOUR NAME, BRAND MARK, SOCIAL AND PUBLIC ASSETS: By signing up with The Mall you are agreeing to let us use your company name, brand mark, social and public assets in The Mall marketing materials and communications.
6.2. MARKETING: If you receive Information about a User through The Mall Services, you must keep the Information confidential and only use it in connection with The Mall Services. You may not disclose or distribute a User’s Information to a third party or use the Information for marketing purposes unless you receive the User’s express consent to do so.
6.3. SECURITY: You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that you use to access The Mall Services.
6.4. AUTHENTICATION: You authorize The Mall directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to provide your date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying your Information against third party databases or through other sources. We may also ask to see your identity documentation at any time. The Mal lreserves the right to close, suspend, or limit access to your Account and/or The Mall Services in the event we are unable to obtain or verify your information and satisfy ourselves as to your true identity.
- RESTRICTED ACTIVITIES AND LIABILITY
7.1. In connection with your use of our website, your Account, The Mall Services, or in the course of your interactions with us, other Users, or third parties, you agree and undertake that you will not:
7.1.1. Breach this Agreement, the Acceptable Use Policy or any other agreement or policy that you have entered into with us;
7.1.2. Violate any law, statute, ordinance, or regulation;
7.1.3. Infringe The Mall’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
7.1.4. Sell illegal and/or counterfeit goods/services;
7.1.5. Act in a manner that is defamatory, threatening or harassing to The Mall, The Mall Users, other The Mall Merchant or any third party;
7.1.6. Provide false, inaccurate or misleading information to The Mall and/or The Mall Users and/or the general public;
7.1.7. Send or receive what we reasonably believe to be potentially fraudulent funds;
7.1.8. Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
7.1.9. Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
7.1.10. Conduct your business or use The Mall Services in a manner that results in or may result in complaints, disputes, fees, fines, penalties or other liability to The Mall Users, third parties or you;
7.1.11. Have a credit score from a credit reporting agency that indicates a high level of risk associated with your use of The Mall Services;
7.1.12. Use your Account or The Mall Services in a manner that The Mall or any other EFT network reasonably believes to be an abuse of the EFT system or a violation banking law;
7.1.13. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website, mobile App or The Mall Services;
7.1.14. Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
7.1.15. Use The Mall Services to test payment behaviours;
7.1.16. Circumvent any The Mall policy or determinations about your Account such as temporary or indefinite suspensions or other limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional The Mall Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional The Mall Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s The Mall Account;
7.1.17. Circumvent any The Mall policy or determinations about your Account such as temporary or indefinite suspensions or other limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional The Mall Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional The Mall Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s The Mall Account;
7.2. ACTIONS BY THE MALL: If The Mal lin its sole and absolute discretion, believes that you may have engaged in any restricted activities, we may take various actions to protect The Mall Users, other third parties, or you from fees, fines, penalties and any other liability. The actions we may take include, but are not limited to, the following:
7.2.1. We may close, suspend, or limit your access to your Account or The Mall Services (such as limiting your ability to accept payments, make withdrawals, or remove financial Information);
7.2.2. We may contact Users you have interacted with, contact your bank, and/or warn other Users, law enforcement, or impacted third parties of your actions;
7.2.3. We may update inaccurate Information you provided us;
7.2.4. We may refuse to provide The Mall Services to you in the future;
7.2.5. We may hold any Balance for up to 180 Days if reasonably needed to protect us against the risk of liability or if you have violated our Acceptable Use Policy; and
7.2.6. We may take legal action against you.
7.3. YOUR LIABILITY: You are responsible for all fees, fines, penalties and other liability incurred by The Mall a User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of The Mall Services. You agree to reimburse The Mall a User, or a third party for any and all such liability.
7.4. ACTIONS BY THE MALL– COURT ORDERS OR OTHER LEGAL PROCESS: The Mall in its sole discretion, may take various actions including any limitation on your Account or the funds in it and/or releasing any or all of your funds in the event it receives notice of a court order or other legal process that restricts the use of or access to your funds or requires their release. The Mall will give notice of a limitation it makes to comply with a court order or other legal process, unless the court order or other process directs that The Mall does not provide you notice, in which case the court order or other process supersedes any notice obligation The Mall has undertaken or agreed to under the terms of this Agreement. The Mall has no obligation to contest or appeal from any such order or process.
7.5. ACTIONS BY THE MALL– ACCOUNT CLOSURE, TERMINATION OF SERVICE AND RELATED MATTERS: If we close your Account or terminate your use of The Mall Services for any reason, we will provide you with notice of our actions. Except as expressly provided otherwise in this Agreement, if we limit access to your Account, including through a Reserve or hold, we will provide you with notice of our actions; we will also provide you with an opportunity to request restoration of access if, in our sole discretion, we deem it appropriate.
7.6. LIMITATION OF LIABILITY: IN NO EVENT SHALL THE MALLIT’S, AFFILIATES, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, THE THE MALLSERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), UNLESS AND TO THE EXTENT PROHIBITED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MALL OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM:
7.6.1. YOUR USE OF OR YOUR INABILITY TO USE OUR SITES AND SERVICES;
7.6.2. DELAYS OR DISRUPTIONS IN OUR SITES AND SERVICES;
7.6.3. VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR SITES OR SERVICES OR ANY SITE OR SERVICE LINKED TO OUR SITES OR SERVICES;
7.6.4. GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR SITES OR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM;
7.6.5. THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES;
7.6.6. A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT;
7.6.7. YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS MERCHANT AGREEMENT OR OUR’S POLICIES.
THE MALLRESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS MERCHANT AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
7.7. No Warranty: THE THE MALLSERVICES ARE PROVIDED WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, TACIT OR STATUTORY. THE MALLOUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF THE MALLOUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The Mall does not have any control over the products or services that are paid for with The Mall Services and The Mall cannot ensure that the party you are transacting with will actually complete the transaction or is authorized to do so. The Mall does not guarantee continuous, uninterrupted or secure access to any part of The Mall Services, and operation of our site may be interfered with by numerous factors outside of our control. The Mall will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but The Mall makes no representations or warranties regarding the amount of time needed to complete processing because The Mall Services are dependent upon many factors outside of our control, such as delays in the banking system.
- ACCOUNT CLOSURE
You may close your Account at any time by following the instructions in your Account Profile or the instructions we may communicate to you from time to time. Please be advised that you shall not be entitled to close your Account to evade liability to any third party or investigation by any authority. If you attempt to close your Account while we are conducting an investigation, we may hold your Balance for a period of time to be determined by us in our sole and absolute discretion. You will remain liable for all obligations related to your Account even after the Account is closed. You agree to an extended funds settlement period to be determined by us, in our sole and absolute discretion, at account closure to ensure funds are available for returns and refunds.
- BREACH, TERMINATION & DISPUTES
9.1. BREACH AND TERMINATION RESULTING FROM BREACH: In the event that either Party (‘the Defaulting Party’), –
9.1.1. Commits any breach of any of its obligations in terms of this Agreement, and in the case of a remediable breach, fails to remedy that breach within 5 (Five) business days (or such longer period as may be agreed by the Parties) of receipt of a notice requiring that the breach be remedied;
9.1.2. Commits an act of insolvency, be placed under business rescue or be wound-up (whether provisionally or finally);
9.1.3. Compromises with any of its creditors or endeavours or attempts to do so;
9.1.4. Has made any incorrect or untrue statement or representation in connection with this Agreement, or its financial affairs, or any particulars thereof;
9.1.5. In the case of the Licensee, does or suffers to be done anything which might prejudice the Licensor’s rights in terms of this Agreement, or which might cause the Licensor to suffer any loss or damage, or allows the Payment Solution to be attached under any legal process issued against it; and
9.1.6. Ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due, then, subject to the remainder of the content of this Agreement, the other Party (‘the Innocent Party’) shall, without prejudice to any of its rights and remedies at law or in terms of this Agreement be entitled to cancel this Agreement and claim damages from the Defaulting Party.
9.2. Subject to the remainder of the content of this Agreement, the termination of this Agreement, for whatever reason, shall not affect the rights of either of the Parties at law or in terms of this Agreement –
9.2.1. that may have accrued before the termination of this Agreement; or
9.2.2. which specifically or by their nature survives the termination of this Agreement.
9.3. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
If a dispute arises between you and The Mall our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and The Mall regarding the The Mall Services may be reported to disputes@saysiyabonga.co.za.
- INDEMNIFICATION AND RELEASE
10.1. You irrevocably agree to defend, indemnify and hold The Mall our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of The Mall our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of The Mall Services, and/or your violation of any law or the rights of a third party.
10.2. If you have a dispute with one or more Users, you release The Mall and our, Affiliates, directors, agents, joint ventures, employees and suppliers, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
- INTELLECTUAL PROPERTY
11.1. INTELLECTUAL PROPERTY IN GENERAL: “The Mall” and all logos related to The Mall Services are either trademarks or registered trademarks of The Mall. You may not copy, imitate or use them without our prior written consent. Also, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of The Mall’s. You may not copy, imitate, or use them without our prior written consent. You may use HTML logos provided by The Mall through our Merchant services or affiliate programs without prior written consent for the purpose of redirecting web traffic to The Mall Services. You may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to The Mallor The Mall Services or display them in any manner that implies The Mall’s sponsorship or endorsement. All right, title and interest in and to the The Mall website, any content thereon, The Mall Services, the technology related to The Mall Services, and any and all technology and any content created or derived from any of the preceding is the sole and exclusive property of The Mall
11.2. THE MALLLICENSE GRANT: If you are using The Mall software such as an API, developer’s toolkit or other software application that you have downloaded to your computer, device, or other platform, then The Mall grants you a revocable, non-exclusive, non-transferable license to use our software in accordance with the documentation. This license grant includes the software and all updates, upgrades, new versions and replacement software for your personal use only. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all The Mall documentation accompanying The Mall Services. If you do not comply with The Mall’s implementation and use requirements you will be liable for all resulting damages suffered by you, The Mall and third parties. The Mall may change or discontinue any APIs upon notice to you. Yo agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software. You acknowledge that all rights, title, and interest to The Mall’s software are owned by The Mall’s. Any third party software application you use on the The Mall website is subject to the license you agreed to with the third party that provides you with this software. The Mall does not own, control nor have any responsibility or liability for any third party software application you elect to use on the The Mall website and/or in connection with The Mall Services. If you are using The Mall Services on the The Mall website, or other website or platform hosted by The Mall or a third party, and are not downloading The Mall’s software or using third party software applications on the The Mall website, then this section does not apply to your use of the hosted The Mall Services.
11.3. LICENSE GRANT FROM YOU TO THE MALL: When providing The Mall with content or posting content using The Mall Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and sub-licensable right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future. Further, to the fullest extent permitted by applicable law, you waive your rights and promise not to assert and enforce such rights against The Mall its sub-licensees or its assignees. You represent and warrant that none of the following infringe any intellectual property or other right: your provision of content to The Mall your posting of content using The Mall Services, and The Mall’s use of such content (including of works derived from it) in connection with The Mall Services.
11.4. LICENSE GRANT FROM RECIPIENTS TO THE MALL: If you are a Recipient, you hereby grant us a worldwide, non-exclusive, transferable, sub-licensable, and royalty-free right to use and display publicly, during the term of this Agreement, your trademark(s) (including but not limited to registered and unregistered trademarks, trade names, service marks, logos, domain names and other designations owned, licensed to or used by you) for the purpose of (1) identifying you as a The Mall, and (2) any other use to which you specifically consent.
- NOTICES
12.1. You agree that The Mall may give you notice about in respect of this Agreement and any ancillary matter electronically and in the manner described in our Electronic Communications Delivery Policy. Any electronic communications will be considered to be received by you within 1 hour after the time we post it to our website or email it to you.
12.2. In order to contact you more efficiently, we may at times contact you using calls or text messages at the telephone number(s) you have provided us. We may place such calls or texts to (i) provide notices regarding your Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we and our service providers may contact you using autodialled or pre-recorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these interests, but will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We and our service providers will not use autodialled or pre-recorded message calls or texts to contact you for marketing purposes at the telephone number(s) you designate unless we receive your prior express written consent.
12.3. You understand and agree that The Mall may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with The Mall or its agents for quality control and training purposes or for its own protection.
12.4. You acknowledge, understand and further agree that, while your communications with The Mall may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by us, and we do not guarantee that recordings of any particular telephone call will be retained or retrievable from us.
- GENERAL
13.1. STATUS OF AGREEMENT: This Agreement supersedes and replaces any and all agreements between the Parties and undertakings given to or on behalf of the Parties in relation to the subject matter hereof.
13.2. CONTINUATION OF CERTAIN RIGHTS: The expiration, cancellation or other termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.
13.3. WHOLE AGREEMENT: This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and save as may be expressly set out herein, no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
13.4. LENIENCY: No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights an enforcing the obligations of the other Party in terms of this Agreement.
13.5. NON-VARIATION: No addition to, alteration, cancellation, variation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
13.6. SEVERABILITY: Each of the provisions of this Agreement is separate and severable and enforceable accordingly. If any such term or condition is or becomes unenforceable for any reason whatsoever, that term or condition is severable from and shall not affect the validity of any other term or condition contained in this Agreement.
13.7. CESSION OF RIGHTS: You shall be entitled to cede, assign or delegate any of his rights and/or obligations in terms of or arising from this Agreement to any third party without the prior written consent of The Mall
13.8. FORCE MAJURE: Neither Party shall have any liability whatsoever to the other Party or be deemed to be in default of this Agreement as a result of any delay or failure in performing its obligations in terms of this Agreement to the extent that any such delay or failure arises from causes beyond the control of such Party, including but not limited to acts of God (including flooding and earthquakes), acts or regulations of governmental nature or supra national authority, war or national emergency, accident, fire, riot, strikes, lockouts and industrial disputes, provided that such Party shall give prompt notice to the other Party of such occurrence and shall make all reasonable efforts to eliminate the effect thereof to the extent possible.
13.9. GOVERNING LAW: This Agreement shall be governed by the laws of the Republic of Namibia.