TERMS AND CONDITIONS

1. INTRODUCTION

1. The Flexer mobile application and the associated web-based desktop interface (the Service) is owned and provided by Flexer Trading Proprietary Limited (Registration Number: 2019/597365/07), a company duly incorporated in the Republic of South Africa, with its registered at 777 Rubenstein Drive, Moreleta Park, Pretoria, 0044 (Flexer). 
2. These terms and conditions (the Terms) are binding on any person who accesses or uses the Service and/or signs up for a subscription (the User). By accessing the Service and/or making use of the subscription offered by Flexer, the User agrees to be bound by and shall be deemed to have accepted these Terms, which the User acknowledges to have read and understood.  If the User does not agree to any of the Terms, the User should not download, install, view, use or sign up for a subscription plan on the Service. 
3. On Flexer’s website (the Website), the User can obtain more information regarding the specific service offerings and subscription plans which are offered from time to time. 

2. AMENDMENTS TO TERMS

1. Flexer reserves the right to amend, modify, or revise any part of the Service, the related Terms and/or Privacy Notice and any additional terms which may be applicable to the User at any time and without prior notice. The User agrees to be bound by such amendments, modifications, or revisions.  The User must review the Terms on a continual basis and remain up to date in respect of any changes. Such amendments, modifications, or revisions shall be effective immediately. 

3. ACCOUNTS 

1. The Service features a User is entitled to access will depend on their level of access and the relevant subscription type. More information can be found on the Website. 
2. The User acknowledges that they shall be required to capture personal information upon registration to create an account with which the User can access the Service. When creating an account, the User must provide accurate and complete information. 
3. If the User chooses or is provided with identification codes, usernames, passwords or any similar form of identification information as part of Flexer’s security systems, the User must keep this information secret and confidential and must not permit anyone else to use it.  The User shall be responsible for all access to the subscription services with the User’s username and password.  When the User’s username and password have been used to gain access to the subscription services, Flexer shall be entitled to assume that such use and all related communications emanate from the User. Flexer shall not be liable for any loss or damage arising from unauthorised use of the User’s identification information.
4. If the User becomes aware of a breach of the confidentiality of the User’s username and password, the User must immediately communicate this to the Flexer Helpdesk with subsequent confirmation in writing. The compromised username and password will be deactivated as soon as reasonably possible and a new username and password will be issued to the User.  Flexer may, in its sole and absolute discretion and for any reason whatsoever, require the User to change his username and password at any time. 

4. SUBSCRIPTION

1. Flexer currently offers a range of subscription plans. More information about the pricing, entitlements and features associated with each subscription plan is available on the Website.
2. By making use of the Service and/or the subscription services offered by Flexer, the User represents and warrants that:
1. they are legally capable of entering into binding contracts and are at least 18 years of age; 
2. if the User is a company or other juristic entity, that the person representing the User in its transaction with Flexer is duly authorised to do so; 
3. the User agrees to be bound by these Terms; and 
4. the User accepts that Flexer will rely on the User’s representation that the User has unfettered legal capacity to contract and/or that the User is over 18 years of age.
3. Flexer will in no way be held liable to provide a subscription service at an expired price or where the subscription service concerned is no longer available.  

5. PRICES

1. The subscription fee will depend on the particular subscription plan chosen and as stipulated in Flexer’s agreement with its corporate customers (where applicable).
2. Flexer reserves the right to adjust the prices of subscription plans and to correct any pricing errors that may inadvertently occur at any time and without giving the User any advance notice.
3. All prices shall only apply during the validity period of the relevant subscription and shall only be valid once the subscription order has been processed and confirmed by Flexer. If the price for a subscription plan no longer appears on the Service, such subscription plan shall no longer be available for purchase at that price.
4. All prices quoted on the Service are listed in South African Rands (ZAR) and will be exclusive of value added tax imposed in terms of the Value Added Tax Act, 1991 (VAT) and any other applicable taxes. 

6. PAYMENT

1. The User can make payment for the subscription service using the payment methods that are designated by Flexer from time to time. Flexer will not accept any payment by cheque or cash. Only online payments will be accepted.
2. When making payment, the User undertakes to pay the final purchase price (including VAT and any other charges reflected).  
3. Notwithstanding any other clause contained in these Terms, shall have no duty to provide the User with access to the Service until the User’s payment has been cleared by the relevant bank and has become available in Flexer’s bank account. 
4. Flexer may suspend the User’s access where payment is not processed by the relevant bank and credited to Flexer’s bank account.

7. STATUTORY RIGHTS

1. No provision stated in these Terms regarding the cancellation policy will affect or be interpreted to deny the User any of the User’s unalterable statutory rights, to the extent applicable. If and to the extent that the Consumer Protection Act, 2008 (CPA) applies, Users shall be entitled to the relief outlined in the CPA’s provisions.

8. WARRANTIES AND LIABILITY

1. The User makes use of the Service at their own risk. 
2. The User acknowledges that software, mobile applications and websites in general are not error free.
3. The Service and all information, content, materials and services included or otherwise made available to the User therein are provided on an “as is” and an “as available” basis.  Flexer makes no warranties or representations of any kind, express or implied, as to the operation of the Service or the available information, content, materials or services included on or otherwise made available to the User.  
4. To the extent permitted by law, Flexer will have no liability for any loss, damage, cost, expense, injury, claim or penalty of whatsoever nature, including, but not limited to, indirect and consequential loss of damage and loss of profits, however arising out of or in connection with these Terms or the subscription services, whether caused by latent or patent defects in the subscription services, or the use of the subscription services otherwise. 
5. Flexer shall not be liable and the User hereby indemnifies Flexer against any and all liability, loss, damage, penalty, cost or claim of any nature whatsoever suffered by the User or any third party in relation to any act or omission of the User in relation to the Service or the use thereof or arising from the provisions of these Terms.
6. The User agrees that if incorrect data is captured using the subscription services, or if data is captured incorrectly, the information conveyed by the subscription services will be incorrect. Flexer shall not be responsible for incorrect data captured, or data captured incorrectly by the User using the subscription services. 
7. The User acknowledges that Flexer shall not be responsible for incorrect or inaccurate data which have been captured by other users of the Service. Each User of the Service is responsible for the correctness and accuracy of the data captured by them on the Service.  
8. Except to the extent expressly provided for in these Terms, Flexer gives no warranties or representations, whether expressed or implied, in relation to the Service.
9. Flexer will not be held liable for any delay, failure, breach or non-compliance with its obligations under these Terms if such delay, failure, breach or non-compliance is beyond the reasonable control of Flexer.
10. These Terms do not intend to, nor shall they be interpreted to, limit the liability of Flexer in any way which would be illegal for Flexer to exclude or attempt to exclude or where such exclusion is prohibited by the Consumer Protection Act, 2008 or the Electronic Communications and Transactions Act, 2002, or any other law in force from time to time in the Republic of South Africa.

9. USE OF THE SERVICE

1. The User may not use, reproduce, adapt, distribute, publish or in any other way deal or interfere with the Service’s contents or the proper functioning of the Service without the prior written consent of Flexer.  
2. Flexer reserves the right to make any changes to the Service, its content and/or products offered through the Service at any time and without prior notice.
3. Although every effort will be made to always have the Service available, the Service may become unavailable for reasons including (without limitation) maintenance or repairs, loss of connectivity or some other form of interruption.  Flexer does not warrant against nor will it be held liable for such downtime and the User indemnifies Flexer against any loss, damage, claims, costs or penalties incurred as a result of such unavailability. 
4. If the User commits any breach of these Terms or in any other way interacts with or uses the Service in an unlawful or unauthorised manner, Flexer shall be entitled, in its sole and absolute discretion, to terminate the User’s access to the Service immediately, without prior notice, without any liability on Flexer’s part and without prejudice to Flexer’s rights in terms of these Terms or at law.  
5. Furthermore, the User represents and warrants that the content and any personal information submitted to the Service is accurate and usable and will not breach any clause of these Terms or any law. 
6. The User shall indemnify Flexer from and against all loss by any person which results from a breach of these representations or warranties. 

10. DISCLAIMER 

1. Any information transmitted by the Service is not verified by Flexer and Flexer does not guarantee the accuracy or the validity of such information. The User must take the necessary steps to ensure that it is allowed to upload and transmit any third party’s personal information using on the Service.  The User indemnifies Flexer from and against any and all liability and responsibility arising in this regard, and including any and all possible consequences which may emanate from such information or the use of the Service. 

11. PROPRIETARY RIGHTS

1. The User acknowledges that Flexer and its licensors are the proprietors of any and all intellectual property subsisting in, pertaining to or used on the Service including, without limitation, patents, inventions, copyright, trade marks, goodwill and/or trade secrets (Intellectual Property) associated with, related to or appearing on the Service.
2. The content of the Service, including but not limited to any pictures, photos, text, presentations, names, titles, brands, drawings and associated software are protected by South African and international law.  The owners of such content reserve all such rights therein unless provided otherwise in these Terms.
3. The User undertakes:
1. not to use or register any trade marks, trade names or other devices which are or incorporate marks which are the same as or confusingly similar to any of Flexer’s trade marks or which marks are likely to be associated with the such trade marks or where such use would take unfair advantage of or be detrimental to the distinctive character or the repute of the trade marks;
2. not at any time to do or cause to be done any act or thing in any way impairing or tending to impair any part of the rights, title and interest in and to the Intellectual Property; and
3. not in any way to make unauthorised use of the Intellectual Property or to represent that the User has any rights of any nature in the Intellectual Property or any registrations thereof.
4. Without limiting the generality of the provisions of clause 11.3, the User undertakes not to make any unauthorised use, reproductions or copies of any work or material displayed or made available on the Service and agrees to adhere to and comply with all policies, conditions of use and rules that may apply to the use of such work or material. 
5. Website graphics, logos, page headers, button icons, scripts and service names are the property of Flexer.  Flexer’s trade marks and trade dress may not be used in connection with any product or service that is not provided by Flexer or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Flexer. The User may not use any of the Intellectual Property without Flexer’s prior written consent. 
6. All other trade marks not owned by Flexer that appear on the Website or in relation to the Service are the property of their respective owners who may or may not be affiliated with, connected to, or sponsored by us. The User may not use such trade marks without prior written consent from the relevant owners. 

12. PROHIBITIONS, MALICIOUS SOFTWARE AND OFFENSES

1. The User may not:
1. sub-license the Service or the rights granted by way of these Terms;
2. translate, adapt, vary, modify, disassemble, decompile or reverse engineer the subscription services or the Service;
3. create derivate works based on the subscription services or the Service;
4. copy, reproduce or publish the subscription services or the Service, except as provided for in these Terms;
5. use the Service otherwise than in compliance with these Terms;
6. interfere with the contents of the Service without prior written consent of Flexer;
7. sell, transfer, distribute or make the subscription services, the Service or any copies thereof available to any unauthorised third party; or
8. alter or remove any notices or trade marks on the subscription services or the Service.
2. The User warrants that:
1. the User will not use the Service in any way that causes, or is likely to cause, the Service and access to the Service to be interrupted, damaged or impaired in any manner;
2. no form of virus, Trojans, worms, logic bombs, or other malicious coding, virus or software will be introduced onto the Service or into Flexer’s system which may cause any form of technological harm or any other form of harm in any manner or respect;
3. the User will not attempt to gain unauthorised access to the Service, including through the theft of any third party’s username and password; and
4. the User will not attempt to gain unauthorised access to the Service’s server, databases, computers or any other device associated with the Service and will not attack the Service through a denial-of-service attack or a distributed denial-of-service attack.
3. Any breach of these Terms regarding malicious software and offenses may be reported to the relevant law enforcement agencies and Flexer may co-operate in all respects with those law enforcement agencies, including by way of disclosure of the identity and identification information of the User.
4. If the User commits any breach of these Terms or in any other way interacts with or uses the subscription services or the Service in an unlawful or unauthorised manner, Flexer shall be entitled, in its sole and absolute discretion, to terminate the User’s access to the Service immediately, without prior notice, without any liability on Flexer’s part and without prejudice to Flexer’s rights in terms of these Terms or at law.   
5. Although Flexer and its representatives will use reasonable efforts to ensure that no malicious content can be received from the Service, Flexer does not warrant that the Service is free of malicious content or viruses and Flexer will not be held liable for any loss resulting from a distributed denial-of-service attack, or any malicious content as described in clause 12.2.2. which may infect any User’s computer or device, computer equipment, data or any other propriety material where such loss is or may be attributed to the User’s use of the Service. 
6. The User warrants that they will not use the Service in any manner that will break any law enforceable in the Republic of South Africa or their territory, or cause any annoyance, unnecessary anxiety or inconvenience to any person.

13. SUSPENSION AND DEREGISTRATION

1. Flexer reserves the right to at any time suspend or terminate the Service, the subscription services or any activity on the Service for any reason, including (without limitation) any unlawful use of the Service by any User or for any reasons relating to any law, legislation or regulation. 
2. In the event that the Service, any activity or event on the Service or any person’s purchase of any of the subscription services offered for sale on the Service is suspended or terminated, a person shall have no claim against Flexer for whatever reason.

14. PRIVACY

1. The Privacy Notice is separately made available on the Service and further describes the collection and use of information by Flexer on this Service.

15. ADDRESSES

1. Each Party chooses the addresses set out opposite its name below as its addresses to which all notices and other communications must be delivered for the purposes of this Agreement and its domicilium citandi et executandi (“Domicilium”) at which all documents in legal proceedings in connection with this Agreement must be served:
1. Flexer: As per clause 18;
2. The User: As per the address supplied when the User registered an account with the Service.
2. Any notice or communication required or permitted to be given to a Party pursuant to the provisions of this Agreement shall be valid and effective only if in writing and sent to a Party’s chosen address in accordance with the provisions of clause 15.1, provided that documents in legal proceedings in connection with this Agreement may only be served at a Party’s Domicilium.

16. GOVERNING LAW

1. The entire provisions of these Terms shall be governed by and construed in accordance with the laws of South Africa. Furthermore, the Parties hereto hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, Pretoria, in regard to all matters arising from these Terms.

17. GENERAL

1. Flexer shall not be bound by and the User shall not have any claim or right of action arising from any express or implied term, undertaking, representation, warranty, promise or the like which is not included or recorded in these Terms or the related contracts, whether it induced the contract and/or whether it was negligent or not.
2. The User shall have no right to rely on any variation, amendment or cancellation of these Terms or any provision or term hereof nor the settlement of any disputes arising under these Terms, unless reduced to in writing and signed by Flexer. No extension of time, waiver or relaxation or suspension of any of the provisions or terms of these Terms shall be binding on Flexer unless reduced to writing and signed by or on behalf of Flexer.  Any such extension, waiver or relaxation or suspension which is so given or made shall be construed as relating strictly to the matter in respect of which it was made or given.
3. Except as provided for under these Terms, the User shall not cede any of its rights or delegate any of its obligations under these Terms without the prior written consent of Flexer.
4. If any clause or term of these Terms should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of these Terms shall be deemed to be severable and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of these Terms.
5. If at any time there is a failure by Flexer to insist on strict performance of any of the User’s obligations under these Terms and related contracts, this shall not be construed to be a waiver of such rights and shall not relieve the User from compliance with such obligations. A waiver of any one default is not to be interpreted as a condonation of any other or further defaults. 
6. Any and all communications between the parties, whether legal or merely for notification purposes, correspondence or for any other reason will only satisfy any legal requirement if it is reduced to writing whether electronic or otherwise.

18. CONTACT DETAILS AND DISCLOSURE OF INFORMATION

Flexer Trading Proprietary Limited

Registration Number: 2019/597365/07

Physical address: 777 Rubenstein Drive, Moreleta Park, Pretoria, 0044

E-mail address: hello@flexer.co.za

Last updated: 31 May 2023