TERMS AND CONDITIONS



FATTi - TERMS AND CONDITIONS

  1. GENERAL TERMS AND CONDITIONS OF USE

  1. INTRODUCTION

    1. These Terms and Conditions are binding on all persons that sign up for, access or make use of the FATTi Wi-Fi Service through the FATTi Portal, and persons that download the FATTi App (in its Device-native Format) or that access the FATTi App (in its Web-based Format), without qualifications or exceptions. By signing up for, accessing or making use of the FATTi Wi-Fi Service through the FATTi Portal, by downloading the FATTi App (in its Device-native Format) or by entering the FATTi App (in its Web-based Format) the User agrees to be bound by and shall be deemed to have accepted these Terms and Conditions, which the User acknowledges to have read and understood. If the User does not agree to any of the Terms and Conditions, the User may not download or access the FATTi App or sign up for, access or make use of the FATTi Wi-Fi Service.

    2. All defined terms used in these Terms and Conditions have the meanings ascribed to them in Part C, unless otherwise defined herein, and these words will begin with a capital letter.

    3. Clauses that may constitute a potential risk to the User are indicated in capital letters and marked in bold and the User is advised to pay particular attention to such clauses and consider the risks before accepting these Terms and Conditions.

    4. A copy of these Terms and Conditions can be found at the following link http://www.newtownjunctionmall.co.za/ should the User wish to access the Terms and Conditions at any time.

  2. DEFINITIONS

    1. The headnotes to the clauses of these Terms and Conditions are for reference purposes only and shall in no way govern or affect the interpretation of nor modify nor amplify these Terms and Conditions nor any clause hereof.

    2. Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:

      1. Affiliates shall mean Newtown or any entity standing in a similar relationship to FATTi;

      2. Business Day shall mean any day other than a Saturday, Sunday or a public holiday in South Africa;

      3. Device shall mean the device used by the User to sign in for and access the FATTi Wi-Fi Network through the FATTi Portal, or to download the FATTi App in its Device-native Format or to access the FATTi App in its Web-based Format, such as a smart phone or tablet or similar device;

      4. Device-native Format shall mean the format of the FATTi App which can only be accessed by the User by downloading it from the relevant Online Store and installing it on his Device;

      5. Effective Date shall mean the date upon which a User downloads the FATTi App;

      6. FATTi shall mean fatti 365 pty Ltd

      7. FATTi App shall mean the multi-device software application, whether in a Web-based Format or Device-native Format, to which these Terms and Conditions are linked and through which the User has access to the Services;

      8. FATTi Group shall mean FATTi, its affiliates, associates, subsidiaries, and divisions and FATTi’s holding company and its affiliates, associates, subsidiaries and divisions;

      9. FATTi Portal shall mean the web page (also known as a captive portal) to which a User is directed when attempting to access the FATTi Wi-Fi Service in the Shopping Centre using his Device and which prompts the User to sign up with his personal details or, once he has signed up, to sign in with his personal details on every occasion thereafter, before granting that person access to the FATTi Wi-Fi Network;

      10. FATTi Wi-Fi Network shall mean the wireless network established by FATTi in the Shopping Centre by using wireless networking technology that uses radio waves to provide wireless high-speed internet connectivity;

      11. FATTi Wi-Fi Service shall mean the provision by FATTi of wireless high-speed internet connectivity to the User by providing access to the FATTi Wi-Fi Network or other similar means;

      12. Intellectual Property shall mean all intellectual property subsisting in, pertaining to or used on the FATTi App including, without limitation, patents, designs, inventions, Trade Marks, service marks, domain names and URL’s, sales and user data, databases, trade secrets, methods and know-how, as well as copyright, including, without limitation, all copyright in any logos, devices, designs, multimedia works, software (including both source and object code and any programmers’ or developers’ notes, flow charts, memoranda and design documents), as well as any goodwill and rights of reputation attaching to any of the above;

      13. Mobile Payment Services shall mean the service provided by FATTi in Shopping Centres whereby it facilitates the process of payment by the User of parking fees in respect of the parking area in the Shopping Centre through a third party service provider;

      14. Online Store shall mean the application store available on the User’s device and operated by the relevant Operator running the operating system on the User’s Device;

      15. Operator shall mean the owner of the operating system through which a User’s Device runs a particular Online Store, which shall either be Apple or Android;

      16. Parties shall mean FATTi and the User and “Party” shall, as the context requires be a reference to any one of them;

      17. Personal Information shall mean information which relates to a User (whether an identifiable living natural person or identifiable, existing juristic person), including, but not limited to, information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the User; information relating to the education or the medical, financial, criminal or employment history of the User; any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the User; the biometric information of the User; the personal opinions, views or preferences of the User; correspondence sent by the User that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; the views or opinions of another individual about the User; and the name of the User if it appears with other personal information relating to the User or if the disclosure of the name itself would reveal information about the User, the User’s location based data tracked through the GPS functionality on the User’s Device and any other personal information obtained by way of tracking a User’s location through his device’s GPS or through the FATTi Wi-Fi Network or any such information of the User which is available to the general public, whether on a social media network or otherwise;

      18. Process shall mean any operation or activity, whether automated or not, concerning Personal Information, including, without limitation, collection of, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation, use, dissemination by means of transmission, distribution or making available in any other form, merging, linking as well as blocking, degradation, erasure or destruction of information, and Processing will have a corresponding meaning;

      19. Services shall mean the services provided by FATTi through the FATTi App, including, amongst others, the FATTi Wi-Fi Service, Mobile Payment Services, the provision by FATTi of shopping discount tokens to Users and the conducting by FATTi of shopping promotions via the FATTi App;

      20. Shopping Centre shall mean the shopping centre at which the FATTi Wi-Fi Service is made available to Users;

      21. Terms and Conditions shall mean the general terms and conditions of use (as set out in Part A) and the privacy policy (as set out in Part B);

      22. Trade Marks shall mean all registered and unregistered trade marks, trade names, symbols, signs, insignia, emblems, logos and slogans utilised on the FATTi App;

      23. User shall mean the user of the FATTi App or the user of the FATTi Wi-Fi Service accessed through the FATTi Portal, in terms of these Terms and Conditions;

      24. Web-based Format shall mean the format of the FATTi App which can be accessed by the User through his Device’s web browser by entering a particular website.

    3. Unless inconsistent with the context or save where the contrary is expressly indicated:

      1. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this clause 2, effect shall be given to it as if it were a substantive provision of these Terms and Conditions;

      2. any reference in these Terms and Conditions to an enactment is to that enactment as at the Effective Date and as amended or re-enacted from time to time;

      3. any reference in these Terms and Conditions to these Terms and Conditions or any other terms and conditions or document shall be construed as a reference to these Terms and Conditions or, as the case may be, such other Terms and Conditions or document as same may have been, or may from time to time be, amended, varied novated or supplemented;

      4. no provision of these Terms and Conditions constitutes a stipulation for the benefit of any person who is not a Party to these Terms and Conditions;

    4. Unless inconsistent with the context, an expression which denotes:

      1. any one gender includes the other genders;

      2. the singular includes the plural and vice versa.

    5. Where any term is defined within the context of any particular clause in these Terms and Conditions, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this clause 2.

    6. The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

    7. These Terms and Conditions shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed these Terms and Conditions in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.

    8. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

  3. PROPRIETARY RIGHTS

    1. The FATTi App and all Intellectual Property subsisting therein are owned by FATTi and the User acknowledges that FATTi or its licensors are the proprietors of the FATTi App and all Intellectual Property.

    2. The content of the FATTi App is protected by South African and international law. The owners of such content reserve all such rights therein unless provided otherwise in these Terms and Conditions.

    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 the Trade Marks or which marks are likely to be associated with the 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 do or cause to be done any act or thing in any way impairing or tending to impair, weaken, damage or be detrimental to any part of FATTi’s rights, title and interest in and to the Intellectual Property, or the reputation and goodwill associated therewith;

      3. not to challenge FATTi’s rights to its current or future Intellectual Property in any county;

      4. not in any way to make unauthorised use of the Intellectual Property or to represent that it has any rights of any nature in the Intellectual Property or any registrations thereof;

      5. not to copy, republish, distribute, adapt, modify, alter, decompile, reverse engineer, or attempt to derive the source code of or create a derivative of works or otherwise attempt to reproduce the FATTi App or its contents, including any and all content belonging to third parties that are found on the FATTi App or to which the FATTi App provides a link.

    4. Without limiting the generality of the provisions of clause 3.3, the User undertakes not to make any unauthorised use, reproductions or copies of any work or material displayed or made available on the FATTi App and to adhere to and comply with all policies, conditions of use and rules that may apply to the use of such work or material.

  4. GENERAL USE OF THE FATTi APP

    1. In order to use the FATTi App, the User must register for the FATTi App by following the prompts displayed on the FATTi App after downloading the FATTi App (in its Device-native Format) or after entering the FATTi App (in its Web-based Format).

    2. The User may not use, reproduce, adapt, distribute, publish or in any other way deal or interfere with the FATTi App’s contents without FATTi’s prior written consent.

    3. The User may not establish a hyperlink, frame, metatag, similar reference, whether electronically or otherwise, or any other reference to the FATTi App without the prior written consent of FATTi.

    4. FATTi reserves the right to make any changes to the FATTi App, its content and/or services offered through the FATTi App at any times and without notice.

    5. The current version of these Terms and Conditions will govern the Parties’ respective rights and obligations in relation to the use by the User of the FATTi App.

    6. FATTi shall have the right to terminate the FATTi App, or a User’s registration to the FATTi App, at any time without notice to the User and in doing so all rights granted to the User in terms of these Terms and Conditions shall cease immediately.

    7. The User agrees that it will only use the FATTi App in accordance with these Terms and Conditions, including any terms and conditions incorporated herein by reference and applicable laws, rules and regulations.

    8. The User acknowledges that no third party has any obligations to provide maintenance or support in relation to the FATTi App.

    9. The display of content via the FATTi App may differ depending on the Device the User is using to access the Services.

    10. Content published on the FATTi App reflects the views of the author and does not necessarily constitute the official opinion of FATTi unless stated otherwise.

    11. No content that is illegal, unlawful, obscene, defamatory, discriminatory, disparaging of others, derogatory, inflammatory, harassing, insulting, offensive or likely to promote violence or hatred against others or that contains abusive, offensive or profane language may be posted on the FATTi App.

    12. The FATTi App may contain links to third party websites. Neither FATTI nor its Affiliates have any control over such websites, they do not review their content and will not be liable for their content or accuracy. The User accesses such websites at the User’s own risk and discretion.

    13. THE FATTI APP IS PROVIDED “AS IS” WITH NO REPRESENTATION, GUARANTEE OR WARRANTY OF ANY KIND AS TO ITS FUNCTIONALITY OR THE SERVICES MADE AVAILABLE BY IT. ALTHOUGH ALL EFFORTS WILL BE MADE TO HAVE THE FATTI APP AVAILABLE AT ALL TIMES, IT MAY BECOME UNAVAILABLE DUE TO MAINTENANCE OR REPAIRS, LOSS OF CONNECTIVITY OR SOME OTHER FORM OF INTERRUPTION AND FATTI AND ITS AFFILIATES DO NOT WARRANT AGAINST NOR WILL IT BE HELD LIABLE FOR SUCH DOWNTIME AND IS HEREBY INDEMNIFIED FROM ANY LOSS, DAMAGE, CLAIMS, COSTS OR PENALTIES INCURRED AS A RESULT OF SUCH UNAVAILABILITY. THE USER RUNS THE RISK THAT IF IT SUFFERS ANY LOSSES OF ANY NATURE OR KIND IN RELATION TO THE FUNCTIONALITY OF THE SERVICES OR THE AVAILABILITY OF THE FATTI APP, IT CANNOT HOLD FATTI LIABLE FOR SUCH LOSSES.

    14. If the User chooses or is provided with identification codes, usernames, passwords or any similar form of identification information as part of the FATTi App’s security systems, such User must keep this information secret and confidential and not allow anyone else to use it. The User shall be responsible for all access to the FATTi App with the User’s user username and password. When the User’s username and password has been used in order to gain access to the FATTi App, FATTi shall be entitled to assume that such use and all related communications emanate from the User. FATTi and its Affiliates shall not be liable for any loss or damage arising from unauthorised use of the User’s identification information. The User shall log out of the FATTi App after using it to prevent anyone else from using it.

    15. In the event that the User becomes aware of a breach of the confidentiality of the User’s user username and password, the User must immediately communicate this to FATTi with subsequent confirmation in writing. The compromised user username and password will be deactivated as soon as reasonably possible and new username and password will be issued to the User. FATTi may, at its sole and absolute discretion and for any reason, require the User to change the User’s user identity and password at any time.

    16. If the User commits any breach of these Terms and Conditions or in any other way interacts with or uses the FATTi App in an unlawful or unauthorised manner, FATTi shall be entitled, at its sole and absolute discretion, to terminate the User’s access to the FATTi App immediately, without prior notice, without any liability on FATTi’s part and without prejudice to FATTi’s rights in terms of these Terms and Conditions or at law, in doing so all rights granted to the User in terms of these Terms and Conditions shall cease immediately.

    17. Standard data charges will be levied by the relevant data service provider when the User accesses the FATTi App or downloads the FATTi App to its Device.

  5. USE OF THE FATTi APP IN ITS DEVICE-NATIVE FORMAT

    1. The provisions of this clause 5 shall only apply to the User if he downloads and uses the FATTi App in its Device-Native Format.

    2. The User may only download and use the FATTi App if its Device meets the requirements specified for the FATTi App as per the information shown on the FATTi App’s interface or as set out on the relevant Online Store’s terms of service and which Device has the latest version of the relevant operating software installed on the User’s Device.

    3. The User must ensure that he uses the latest version of the FATTi App at all times, whether notified by the relevant Online Store or not and the User undertakes to regularly check whether he is using the latest version of the FATTi App. If you do not install the latest version, the FATTi App may not function correctly, experience security and/or data flaws, for which FATTi and its Affiliates will not be liable under any circumstances.

    4. Upon acceptance of these Terms and Conditions by downloading the FATTi App in its Device-native Format, FATTi grants the User a non-exclusive right to use the FATTi App, which the User may not assign, sub-license, transfer and which license is granted to the User only and which license will not confer any rights of use of the FATTi App to any third party.

    5. The license will commence as soon as the FATTi App is downloaded by the User in its Device-native Format to his Device and will terminate upon the deletion by the User of the FATTi App from his Device, or if terminated by FATTi in accordance with these Terms and Conditions.

    6. The User shall delete the FATTi App from his Device if the User changes his Device or disposes of it.

    7. Notwithstanding the fact that these Terms and Conditions are entered into between FATTi and the User, the User acknowledges that the relevant Operator is a third party beneficiary under these Terms and Conditions and will also have the right to enforce these Terms and Conditions against the User.

    8. To the maximum extent possible in law, the Operator does not give or enter into any warranty, condition, or other term in relation to the FATTi App and will not be liable to the User for any claims, losses, costs or expenses of whatever nature in relation to the FATTi App or as a result of the User or anyone else using the FATTi App or relying on its content.

    9. Any claims relating to the licence granted to the User to use the FATTi App or the possession or use of the FATTi App are between the User and FATTi and not between the User and the relevant Operator.

    10. In the event of any claim by a third party to the effect that the User’s possession or use FATTi App infringes any intellectual property rights of such third party, the relevant Operator will not be responsible or liable to the User in relation to such claim.

  6. USE OF THE FATTi WI-FI SERVICE

    1. By signing up (and on each occasion thereafter signing in) through the FATTi Portal or by downloading the FATTi App in its Device-Native Format or by accessing the FATTi App in its Web-based Format, the User will gain access to the FATTi Wi-Fi Service.

    2. A Wi-Fi compatible Device or a Device that supports Wi-Fi connectivity must be used to connect to the FATTi Wi-Fi Network.

    3. The User will not be able to connect to the FATTi Wi-Fi Network if his/her Device does not support wireless LAN technology.

    4. ALTHOUGH FATTI WILL USE ITS REASONABLE ENDEAVOURS TO KEEP THE FATTI WI-FI SERVICE AVAILABLE AT ALL TIMES, FATTI AND ITS AFFILIATES SHALL NOT BE LIABLE TO THE USER OR ANY OTHER PERSON WHATSOEVER IN RESPECT OF ANY LOSS OR DAMAGES CAUSED BY OR ARISING FROM THE UNAVAILABILITY OF, OR ANY INTERRUPTION IN THE FATTI WI-FI SERVICE FOR ANY REASON WHATSOEVER.

    5. NEITHER THE USER NOR ANY OTHER PERSON SHALL HAVE ANY CLAIM AGAINST FATTI FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL LOSS OR DAMAGES INCLUDING (WITHOUT BEING LIMITED TO) BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS, ARISING FROM THE UNAVAILABILITY OF, OR INTERRUPTION IN THE FATTI WI-FI SERVICE, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, DELICT, BREACH OF IMPLIED WARRANTIES OR OTHERWISE AND EVEN IF THE POSSIBILITY OF SUCH LOSS OR DAMAGES COULD HAVE BEEN FORESEEN OR IF FATTI OR ITS AFFILIATES WERE NEGLIGENT, AND THE USER HEREBY INDEMNIFIES FATTI ACCORDINGLY. THE USER RUNS THE RISK THAT IF IT SUFFERS ANY LOSSES OF ANY NATURE OR KIND IN RELATION TO THE USE OF THE FATTI APP, IT CANNOT HOLD FATTI LIABLE FOR SUCH LOSSES.

    6. In order to ensure the secure and reliable operation of the FATTi Wi-Fi Service, FATTi hereby reserves the right to take whatever action FATTi finds necessary to preserve the security and reliability of its network, and in particular reserves the right to intercept and monitor all usage of and flow of communications through the FATTi Wi-Fi Service.

    7. The User may not utilise the FATTi Wi-Fi Service in any manner which may compromise the security of FATTi's network or tamper with the FATTi Wi-Fi Service or the network in any manner whatsoever.

    8. FATTi cannot be held responsible for security breaches occurring on the User’s Device, which may result due to the lack of adequate virus protection software or spyware that the User may have installed on his Device.

    9. It is the User’s responsibility to take precautions and provide security measures that are suited to his situation and his intended use of the FATTi Wi-Fi Service and FATTi strongly recommends that the User takes measures to secure his hardware, software and internet communications, whether through the use of virtual private networks, personal firewalls, anti-virus software, encryption or otherwise. FATTi does not offer or provide these solutions and therefore cannot guarantee or be held responsible for their effectiveness.

    10. FATTi reserves the right to throttle all traffic types consumed using the FATTi Wi-Fi Network that FATTi deems to be abusive traffic.

    11. The User shall not:

      1. utilise the FATTi Wi-Fi Service to gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect Personal Information about third parties without their knowledge or consent;

      2. violate the privacy of any person or attempt to gain unauthorised access to the FATTi Wi-Fi Service or any other network, including (without being limited to) through hacking, password mining or any other means;

      3. use the FATTi Wi-Fi Service to engage in any illegal or unlawful activity;

      4. send excessive numbers of e-mails or excessively large files which, in FATTi’s sole and absolute discretion, negatively affects the performance of the FATTi Wi-Fi Network;

      5. provide network services from the User’s account;

      6. employ automated electronic or mechanical processes designed to defeat network inactivity time-outs, such as repetitive pinging of the host;

      7. use resource-intensive programs which negatively impact other customers or the performance of the FATTi Wi-Fi Network; or

      8. resell bandwidth from the FATTi Wi-Fi Service.

    12. Should the User, in FATTi's sole and absolute discretion, engage in any one or more of the above practices, FATTi shall be entitled, without prejudice to any other rights it may have, to suspend the User’s access to the FATTi Wi-Fi Service or the FATTi App without notice to the User.

    13. FATTi shall be the internet service provider in relation to the use by the User of the FATTi Wi-Fi Service only, facilitated through the FATTi Wi-Fi Network. The User acknowledges that if, at any time, its wireless internet connection is not obtained through the FATTi Wi-Fi Network, but through a third party internet service provider, such as MTN, that FATTi and its Affiliates shall not have any responsibility or liability in relation to the wireless network connection obtained through such third party internet service provider.

  7. WARRANTIES

    1. The User hereby represents and warrants that:

      1. it has full contractual capacity and it has not been declared mentally unfit by any court of competent jurisdiction;

      2. it has read and understands these Terms and Conditions before downloading the FATTi App; and

      3. any information submitted to FATTi on the FATTi App or the FATTi Portal, is true and accurate.

  8. NO LIABILITIES AND INDEMNITY

    1. THE USER MAKES USE OF THE FATTI WI-FI SERVICE, THE FATTI APP AND THE SERVICES OFFERED THROUGH THE FATTI APP AT THE USER’S OWN RISK.

    2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, FATTI AND ITS AFFILIATES SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE, COST, CLAIM OR PENALTY OF WHATSOEVER NATURE, INCLUDING BUT NOT LIMITED TO INDIRECT AND CONSEQUENTIAL DAMAGES AND LOSS OF PROFITS, HOWEVER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, THE FATTI WI-FI SERVICE OR THE FATTI APP AND WHETHER CAUSED BY LATENT OR PATENT DEFECTS IN THE FATTI APP OR THE USE OF THE FATTI WI-FI SERVICE, THE DOWNLOADING OR USE OF THE FATTI APP AND INFORMATION CONTAINED ON THE FATTI APP OR OTHERWISE.

    3. THE USER HEREBY INDEMNIFIES FATTI AND ITS AFFILIATES AND HOLDS THEM HARMLESS AGAINST ANY AND ALL LIABILITY, LOSS, DAMAGE, PENALTY, COST OR CLAIM OF WHATSOEVER NATURE SUFFERED BY ANY THIRD PARTY IN RELATION TO ANY ACT OR OMISSION BY THE USER OR THE USER’S MEMBERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR ASSIGNS OR ANY THIRD PARTY IN RELATION TO THE FATTI APP OR THE FATTI WI-FI SERVICE AND THE USE THEREOF BY THE USER, AND/OR ARISING FROM THE PROVISIONS OF THESE TERMS AND CONDITIONS.

    4. THE USER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE FATTI APP AND THE FATTI WI-FI SERVICE AND FATTI AND ITS AFFILIATES DISCLAIM ALL LIABILITY FOR ANY LOSS, INJURY, DAMAGE, COST, PENALTY OR CLAIM RESULTING FROM THE USE OF THE FATTI APP OR THE FATTI WI-FI SERVICE, WHETHER DIRECT OR INDIRECT, AND WHETHER OR NOT FATTI OR ITS AFFILIATES HAVE BEEN ADVISED OF OR HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH LOSS, INJURY, DAMAGE, COST, PENALTY OR CLAIM RESULTING FROM THE USE OF THE FATTI APP OR THE FATTI WI-FI SERVICE, WHETHER DIRECT OR INDIRECT, AND WHETHER OR NOT FATTI OR ITS AFFILIATES HAVE BEEN ADVISED OR HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH LOSS, INJURY, DAMAGE, COST, PENALTY OR CLAIM.

    5. FATTI AND ITS AFFILIATES SHALL NOT INCUR ANY LIABILITY TO THE USER OR ANY OTHER PERSON OR ENTITY ASSOCIATED WITH THE USER FOR ANY COMPENSATORY, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, COMMERCIAL OR ECONOMIC LOSS, EVEN IF FATTI OR ITS AFFILIATES HAVE BEEN ADVISED OF SUCH DAMAGES OR LOSS, OR SUCH DAMAGE OR LOSS WAS REASONABLY FORESEEABLE.

    6. THE USER RUNS THE RISK BY VIRTUE OF THIS CLAUSE THAT IF IT SUFFERS ANY LOSSES OF ANY NATURE OR KIND IN RELATION TO THE USE OF THE FATTI APP, THE FATTI WI-FI SERVICE OR THE SERVICES IN GENERAL, IT WILL NOT BE ABLE TO HOLD FATTI OR ITS AFFILIATES LIABLE FOR SUCH LOSSES.

  9. NO WARRANTIES

FATTi and its Affiliates do not warrant that the FATTi App or the FATTi Wi-Fi Service will be error-free or will meet any particular criteria of accuracy, completeness, timeliness, suitability or reliability of information, performance or quality. FATTi and its Affiliates expressly disclaim, to the extent permitted by applicable law, all warranties whether express, statutory or implied, including, without limitation, warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.

  1. MALICIOUS SOFTWARE AND OFFENSES

    1. The User warrants that he will not use the FATTi App in any way that causes, or is likely to cause the FATTi App and access to the FATTi App to be interrupted, damaged or impaired in any manner.

    2. The User warrants that no form of virus, Trojans, worms, logic bombs, time-locks or other malicious coding, virus or software will be introduced into FATTi’s system which may cause any form of technological harm or any other form of harm in any manner or respect.

    3. The User warrants that he will not attempt to gain unauthorised access into the FATTi App or to the FATTi Wi-Fi Service, including through theft of another’s username and password.

    4. The User warrants that he will not attempt to gain unauthorised access to the FATTi App’s server, databases, computer’s, or any other device associated with the FATTi App and will not attack the FATTi App through a denial-of-service attack or a distributed denial-of-service attack.

    5. Any breach of these Terms and Conditions regarding malicious software and offenses will be reported to the relevant law enforcement agencies and the FATTi App owners will co-operate in all respects with those law enforcement agencies, including by way of disclosure of the identity and identification information of the User.

    6. Although the best efforts will be put into ensuring that no malicious content can be received from the FATTi App, FATTi and its Affiliates do not warrant that the FATTi App is free of malicious content or viruses and will not be held liable for any loss resulting from a distributed denial-of-service attack, or any malicious content as described in clause 10.2. that may infect any User’s device, equipment, data or any other material caused by the use of the FATTi App or downloads received from the FATTi App.

    7. The User warrants that he will not use the FATTi App in any manner that will break any law enforceable in South Africa or cause any annoyance, unnecessary anxiety or inconvenience to any person.

  2. GOVERNING LAW

The entire provisions of these Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic 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 and Conditions.

  1. GENERAL

    1. This document contains the entire agreement between the Parties in regard to the subject matter hereof.

    2. No Party shall be bound by or have any claim or right of action arising from any express or implied term, undertaking, representation, warranty, promise or the like not included or recorded in this document whether it induced the contract and/or whether it was negligent or not.

    3. FATTi reserves the right to change, modify, add to or remove from portions or the whole of these Terms and Conditions from time to time. Changes to these Terms and Conditions will become effective upon such changes being posted to this FATTi App. It is the User’s obligation to periodically check these Terms and Conditions on the FATTi App for changes or updates. The User’s continued use of this FATTi App following the posting of changes or updates will be considered notice of the User’s acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.

    4. No extension of time or waiver or relaxation of any of the provisions or terms of these Terms and Conditions shall operate as an estoppel against a Party in respect of its rights under these Terms and Conditions.

    5. No failure by any Party to enforce any provision of these Terms and Conditions shall constitute a waiver of such provision or affect in any way such Party’s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.

    6. If any term or provision of these Terms and Conditions should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of these Terms and Conditions shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of these Terms and Conditions.

  2. NOTICES

    1. FATTi chooses the address referred to in clause Fout: Bron van verwijzing niet gevonden below as the address where any legal document or notice must be served or delivered to us.

    2. FATTi will send any legal documents or notices to the User at the e-mail address provided by the User upon registration for the FATTi App or through any form of messaging system or functionality available on the FATTi App, which provides a direct line of communication between FATTi and the User, such as a mail dashboard, or similar functionality.

    3. FATTi may send any other written communication to the User’s e-mail address, cell phone number by SMS or through the aforesaid messaging system or similar functionality. FATTi will regard a communication sent by e-mail as having been received by the User one day after it was sent.

    4. The relevant provisions of the Electronic Communications and Transactions Act 35 of 2002 do not apply to legal documents or notices in relation to these Terms and Conditions and the FATTi App.

  1. PRIVACY POLICY AND USE OF PERSONAL INFORMATION

  1. INTRODUCTION

  1. FATTi is committed to protecting Users’ privacy and Personal Information and therefore warrants that no information collected will be used for any other purposes other than stipulated in these Terms and Conditions.

  2. By signing in for, accessing or using the FATTi Wi-Fi Service or by accessing the FATTi App in its Web-based Format or by downloading the FATTi App to the User’s Device in its Device-native Format, the User expressly consents to the collecting and Processing of its Personal Information by FATTi, which permission shall extend only to the collecting and Processing of the User’s Personal Information for the purposes set out in clause 2 below. The User may revoke this consent in writing at any time by sending an e-mail to this effect to the following e-mail address info@fattiengage.com, provided that FATTi shall have the right to prevent the use by the User of the FATTi Wi-Fi Service or the FATTi App should he decide to revoke such consent.

  3. FATTi will not collect or Process the User’s Personal Information for any purpose, other than the purposes disclosed to the User in clause 2 below, unless the User gives FATTi its express written consent to do so, or unless FATTi is permitted or required to do so by law, and FATTi shall at all times remain responsible for determining the purposes and means for Processing the User’s Personal Information and disclosing such purpose to the User to the extent that it has not done so in these Terms and Conditions.

  4. By signing in for, accessing or using the FATTi Wi-Fi Service or by accessing the FATTi App in its Web-based Format or by downloading the FATTi App to the User’s Device in its Device-native Format, the User provides its express written consent to the sharing of its Personal Information by FATTi (strictly for the purposes disclosed to the User in clause 2 below) within the FATTi Group, as well as the sharing of its Personal Information with trusted third parties who assist FATTi in operating the FATTi App, carrying out the operations contemplated in clause 2 below (such as marketing and research), conducting its business or servicing the User, including without limitation, service providers of FATTi, persons who act as FATTi’s agents or to whom FATTi has transferred or proposes to transfer any of its rights in relation to the User, so long as those parties agree to keep this information confidential and adhere to FATTi’s privacy policies.

  5. The User acknowledges that it has read these Terms and Conditions and in particular the privacy policy contained in this section B and that it understands and accepts the consequences of the consents with respect to its Personal Information given by it in clauses 1.2 and 1.4 above and that it is giving such consents voluntarily and without any undue influence from FATTi.

  6. The User acknowledges that non-personally identifiable information or depersonalised information may be provided to other parties for marketing, advertising, or other uses.

  1. PURPOSES FOR COLLECTING AND PROCESSING OF PERSONAL INFORMATION

    1. The following are the purposes for which FATTi will collect and Process the User’s Personal Information:

      1. to operate and administer the FATTi App, to allow FATTi to provide the Services (including the FATTi Wi-Fi Service), or any combination of services linked to the FATTi App, to the User, to personalise and tailor the Services for the User and to process instructions or requests by the User with respect to the Services and the use of the FATTi App;

      2. to monitor and analyse the User’s conduct in respect of the FATTi App and the FATTi Wi-Fi Service for fraud;

      3. for compliance and risk related purposes;

      4. to analyse the Personal Information collected for research and statistical purposes and once such Personal Information is analysed to send the User marketing and promotional material which FATTi believes are relevant to the User based on its analyses of the User’s Personal Information;

      5. to conduct market research, as well as academic research in respect of the Personal Information in order to identify potential markets and trends, to develop new products and services and to improve FATTi’s offerings to Users of the FATTi App and the FATTi Wi-Fi Service, as well as offerings, products and services by FATTi and the FATTi Group to its customers in terms of its business practices in general, whether in the ordinary course or otherwise;

      6. to aggregate and/or depersonalise the User’s Personal Information after analysing it for statistical purposes and/or conducting market and academic research in respect thereof, as aforesaid, and transferring or on-selling such depersonalised information to third parties for commercial or non-commercial means.

    2. All Personal Information collected for research, statistical and marketing purposes will be aggregated and/or depersonalised before on-selling or transferring such information to third parties, except as expressly agreed to by the User in clause 1.4 above.

  1. SECURITY OF PERSONAL INFORMATION

    1. FATTi takes all reasonable steps to protect the User’s Personal Information from loss of, damage to, unauthorised use of, or misuse or alteration of the User’s Personal Information. The Personal Information will be stored in databases that have built-in safeguards to ensure the privacy and confidentiality of that information.

    2. As a protection measure, when signing up on the FATTi Portal or FATTi Mall Webpage or registering for the FATTi App, the User will be given a user name and password which the User must always keep confidential and ensure that it is not disclosed it to anyone.

  2. INFORMATION QUALITY

    1. FATTi takes reasonably practicable measures to ensure that the Personal Information held by FATTi in respect of a User is at all times complete, accurate and updated.

    2. If the User wants to update or correct any of its Personal Information held by FATTi, the User can send an e-mail to FATTi at the following e-mail address info@fattiengage.com.

  1. COOKIES

    1. FATTi uses cookies, which are small files that the FATTi App transfers to the hard drive of a User’s Device through the User’s web browser (if the User allows this) and this enables FATTi to recognise the User’s browser and capture and remember certain information.

    2. FATTi uses cookies to help it remember, process and compile aggregate data about site traffic and site interaction so that it can offer better site experiences and tools in the future.

  2. THIRD PARTY LINKS AND SERVICES

Occasionally, at FATTi’s discretion, it may include references to or facilitate access to products offered or services rendered by third party service providers and provide links to the sites of third parties. These third party service providers and their sites have separate and independent terms and conditions and privacy policies applicable to its products, services and the sites. FATTI and its Affiliates have no responsibility or liability for the products offered or services rendered by the such third party service providers or the content and activities of the linked sites and makes no warranties or representations regarding the products offered or services rendered by the third party service providers or the content and activities of such third party sites whatsoever. For example, the FATTi App may provide a link to a third party site in terms of which a third party service provider will offer a service to the User which will enable the User to pay its parking fees in respect of the Shopping Centre. In this respect, FATTi merely facilitates the access to such third party’s service and site and does not itself offer the service in respect of which the User will actually pay the parking fees. From the point upon which the User accesses the third party site, FATTI and its Affiliates shall have no responsibility or liability for the payment services offered by such third party. The User acknowledges that FATTi offers no service for making payments of any nature whatsoever and that FATTi simply facilitates the access to such payment services.

  1. DIRECT MARKETING

    1. By accessing the FATTi App in its Web-based Format or by downloading the FATTi App to the User’s Device in its Device-native Format or accessing or making use of the FATTi Wi-Fi Service through the FATTi Portal, the User provides its express written consent to FATTi to send promotional and marketing material directly to the User, including, without limitation, information about products, services, and special offers from FATTi or other companies that may interest the User, based on the User’s Personal Information collected by FATTi. FATTi will do this by e-mail, text message or through any form of messaging system or functionality available on the FATTi App, which provides a direct line of communication between FATTi and the User, such as a mail dashboard, or similar functionality. If the User decides that it does not want FATTi to do this, the User can inform FATTi by sending an e-mail to info@fattiengage.com or visiting the following website http://www.newtownjunctionmall.co.za/ and upon doing so FATTi will no longer send such material to the User.

    2. The User acknowledges that it provides the above consent voluntarily and without any undue influence from FATTi, after having read these Terms and Conditions and that it understands the consequences of such consent.

    1. FATTi confirms that it complies with the relevant manufacturer’s application Opt-Out Criteria.

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