Terms and Conditions - South Africa
- Agreement
1.1 The supply of the Goods and Services to you, including your use of, and access to, the Pods and the Platform and your use or supply (as applicable) of the products, services, messages, data, information, text, graphics or other material or content available through, or as a result of your use of, the Pods or Platform (Content) is subject to, and conditional on, your acceptance and compliance with these Terms.
1.2 By clicking the ‘I accept’ button or otherwise confirming your acceptance electronically and in consideration of mPort allowing you to use the Pods and the Platform you agree that: (a) you have read, understood and will be bound by the Terms; and (b) you are a person who is eligible to use the Pods and the Platform as set out in clause 2.
1.3 If someone is entering into these Terms as your parent, guardian or other representative, they warrant to mPort that they have full legal authority to bind you to these Terms.
2.1 You will only be eligible to use the Pods and the Platform if:
(a) subject to clause 2.2, you are aged 13 years or older;
(b) you are not a competitor of mPort (in the sole opinion of mPort) and do not intend on using the Services to compete with mPort or otherwise commercially exploit the Pods or Platform;
(c) you do not have another current account with mPort for access to and use of the Pods and the Platform; and
(d) you are not otherwise restricted from accessing the Pods and the Platform or otherwise prohibited from holding an account with mPort.
2.2 If you are aged between 13 years and 18 years, you will only be entitled to use the Pods and the Platform if your parent or guardian has provided consent for you to use the Pods and the Platform.
2.3 If you are aged between 13 years and 18 years, please do not provide personal information to mPort or otherwise use the Pods or the Platform unless a consent has been provided by your parent or guardian.
3.1 Upon acceptance of these Terms, you will:
(a) be able to use the Pods; and
(b) be granted access to the Platform through which you will, amongst other things, be able to manage your account and the Content, as set out in the Purchase Order.
3.2 Your access to the Platform will be via a secure login username and password issued to you by mPort (Password).
You are responsible for:
(a) providing and maintaining accurate, current and complete information about you as may
be required by any registration forms on the Platform; and
(b) the security of the Password and mPort will not be responsible for any unauthorised access to the Platform or misuse of any usernames or Passwords.
3.3 You must notify mPort of any change in username or Password and of any suspected or actual unauthorised access to a username or Password.
3.4 mPort reserves the right to cancel a username or Password at any time in its absolute discretion.
4.1 You must not violate or attempt to violate the security of the Platform (or Website more generally) and, without limiting the foregoing, you must not hack into the Platform or Website, our computer systems or the computer systems of other users of the Platform or Website. For the purposes of this clause “hacking” includes unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
4.2 mPort takes no responsibility and assumes no liability for any Content which is posted by you or any third party to the Platform, or for any loss or damage thereto, nor is mPort liable for any mistakes, discrimination, defamation, omissions, falsehoods, obscenity, pornography or profanity you may encounter while using the Platform or Content.
4.3 You agree not to post any of the following to the Platform:
(a) any Content that is unlawful, discriminatory, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or is otherwise, in mPort’s opinion, objectionable, offensive or damages mPort, the Pods, the Platform or any other person (Unacceptable Content);
(b) any Content that would constitute, encourage or provide instructions for a criminal offence, breach any laws or regulations, infringe the legal rights of any person (including any intellectual property rights), be contrary to any relevant standards or codes or intimidate, harass or offend any person or be reasonably likely to do so;
(c) any Content that may infringe
any patent, trade mark, trade secret, copyright or other intellectual or proprietary right of any person;
(d) private or personal information of any third party, including, without limitation, health information, addresses, phone numbers and email addresses;
(e) any files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software;
(f) any Content that, in mPort’s sole discretion, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may
expose mPort or its affiliates or users to any harm or liability of any type.
4.4 You must not:
(a) post any Unacceptable Content through any social media or public forum in connection with your use of the Pods or the Platform;
(b) provide false information or misleading information to mPort or to any other person via the Website, the Platform or in respect of your use of the Platform including in any response to a question or request for information on the Website or Platform;
(c) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Platform;
(d) attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Platform;
(e) distribute any part of the Platform for commercial purposes or other otherwise sub-licence or resell the Platform;
(f) create derivative works from all or any part of the Platform;
(g) make any part of the Platform publicly available; or
(h) attempt to do any of the above or assist or permit any other person to do or attempt to do any of the above.
4.5 You must comply with all directions mPort gives to you regarding your access to or use of the Pods and the Platform (including directions posted on the Pods or the Platform).
4.6 You will be responsible for ensuring the use of the Pods and the Platform by you complies with all applicable rules, regulations and codes of conduct.
5.1 You acknowledge and agree that the:
(a) Pods and Platform may interact with Third Party Applications to be used
to provide particular features or functionality;
(b) mPort does not monitor or have any control over, and makes no
claim, representation or warranty regarding Third Party Applications and you agree that you use Third Party
Applications at your own risk;
(c) mPort is not related or associated with the providers of any Third Party
Applications;
(d) the inclusion of any link to or integration with any Third Party Application does not constitute
or imply any affiliation with, or sponsorship, endorsement or approval by mPort of the Third Party Application or
the provider of the Third Party Application;
(e) you will abide by any obligations imposed upon you by the provider
of the Third Party Application; and
(f) access to Third Party Applications is at your risk and mPort will in no way
be responsible for any Loss that may result from your use of any Third Party Application, notwithstanding that any such Third Party Application may interface or interact with the Pods or Platform.
6.1 From time to time a Pod or the Platform may be unavailable for access or use (including for the undertaking of maintenance and upkeep of the Pod, Platform or Website) and mPort will not be held liable for the consequences of any Pod or Platform unavailability and does not make any representations or provide any warranties regarding the availability of the Pods or Platform or the timeframes within which any unavailability in respect of the Pods or Platform will be resolved.
6.2 Subject to clause 11, you acknowledge that mPort has no obligation whatsoever to furnish any maintenance and support services with respect to any Pod or the Platform.
6.3 While mPort will take all reasonable steps to ensure the security of the Platform, data transmissions over the internet cannot be guaranteed to be totally secure and mPort does not warrant and cannot ensure the security of any information or Content provided through the Platform.
6.4 You acknowledge that mPort does not provide back up or other similar services in respect of the Content and you are solely responsible for implementing your own back up and data retrieval procedures in respect of the Content.
6.5 You acknowledge that nothing in these Terms impose obligations on mPort to develop, release or install any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Pods or the Platform (Updates), provided however that if mPort does develop or release any Updates, it may require that all such Updates be used by you. You also acknowledge that nothing in these Terms impose obligations on mPort to provide any services to you in respect of the Pods or Platform other than the Services.
7.1 mPort may from time to time introduce new features and functions to the Pods or Platform or modify, suspend, discontinue features, functions and other benefits available to you.
7.2 You acknowledge and agree that mPort retains the sole discretion regarding the features, functions and other benefits of the Pods and Platform and nothing in these Terms requires mPort to provide any features, functions and other benefits of the Pods or Platform or maintain any features, functions or other benefits in respect of the Pods or Platform. You acknowledge and agree that mPort may discontinue or alter any such features, functions or other benefits as mPort sees fit from time to time.
8.1 mPort owns all of the intellectual property rights in the Pods, Platform and Website (including any modification, alteration, development, new use or other change to Pods, Platform or Website) and any Content on the Platform and Website, other than any Content posted by a third party or any Third Party Application, and you agree not to infringe any intellectual property rights in the Pods, Platform, Website or any Content on the Platform or Website (whether owned by mPort or a third party).
8.2 Any intellectual property in respect of the Pods, Platform or Website created by you is assigned to mPort immediately upon its creation.
8.3 If you post any Content to the Platform, you:
(a) grant mPort a nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Content throughout the world in any media, now known or hereafter devised in connection with the Pods or the Platform; and
(b) represent and warrant that:
(i) you own and control all of the rights to such Content or you otherwise have the lawful right to post such Content to or through the Platform;
(ii) such Content is accurate and not misleading; and
(iii) posting of such Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity including any obligation of confidentiality.
8.4 Otherwise than as provided for in clause 8.3, mPort will not, without your consent, commercially exploit or use any Content you post to the Platform.
8.5 Content posted by you will be considered non-confidential and mPort is under no obligation to treat such Content as proprietary information.
8.6 Subject to clause 8.4 but without limiting clause 8.5, mPort reserves the right to use the Content as it deems appropriate, including, without limitation, deleting, editing, modifying, rejecting, or refusing to post it and mPort is under no obligation to offer you any payment for Content that you post or the opportunity to edit, delete or otherwise modify Content once the it has been posted.
8.7 Nothing in these Terms grants you any ownership of or rights to use the trademarks of mPort and you must not adopt, register or attempt to register or use any trademarks which are identical or deceptively similar to the trademarks owned by mPort.
mPort cannot guarantee that any file or program available for download and/or execution from or via the Platform or Website is free from viruses, malicious code or other conditions which could damage or interfere with data, hardware or software with which it might be used and you assume all risk of use of all programs and files on the Platform and Website, and you release mPort entirely of all responsibility for any consequences of its use.
The Platform may be accessed throughout Australia and overseas and mPort makes no representations that the Content or the Platform complies with the laws (including intellectual property laws) of any country outside Australia.
If you access the Platform from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Platform.
11.1 Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the South African Consumer Protection Act (CPA)
11.2 Subject to clause 11.4, if you are not a Consumer then, to the extent permitted by law, mPort excludes all liability for any Loss incurred by you in connection with the Goods and Services provided under these Terms.
This clause applies even if mPort knew or ought to have known that it was possible or foreseeable that you would incur such Loss.
11.3 Notwithstanding clause 11.2, if you are a Consumer and the Goods or Services are Non PDH Goods or Services, mPort’s liability to you is limited at mPort’s option to:
(a) in the case of the Goods:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) in the case of the Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
11.4 Notwithstanding clause 11.2, if you are a Consumer and Goods or Services supplied under these Terms are PDH Goods or Services, mPort excludes all liability for any Loss incurred by you as a result of these Terms to the extent such Loss is not the result of a breach of a Consumer Guarantee.
11.5 Without limiting any other provision in these Terms, mPort is not liable for any Loss you suffers as a result of:
(a) improper use or consumption of the Goods or any Pod; and
(b) misuse or neglect of the Goods or any Pod or any other use or consumption of the Goods or any Pod which is outside of the ordinary commercial application of the Goods or any Pod or is otherwise inconsistent with mPort’s instructions in relation to the use or consumption of the Goods or any Pod.
11.6 Subject to clause 11.1 and the rest of this clause 11, the aggregate liability of mPort to you arising out of or in connection with these Terms will in no event exceed an amount equal to the amount of any fees paid by you to mPort for the Goods or Services.
You indemnify mPort and hold mPort harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which mPort incurs as a direct or indirect result of:
(a) recovering any amounts you owe to mPort;
(b) any breach of the Terms by you (including any breach of the warranties provided by you);
(c) any damage caused either directly or indirectly by you; and
(d) any negligent or wilful act or omission by you.
You acknowledge and agree that you have not relied on any representations, inducements or statements made to you by mPort regarding the supply of the Goods or Services and you have satisfied yourself that the Goods and Services are fit for the purpose you requires them for.
14.1 You acknowledge that you have read and understood mPort’s privacy policy (which privacy policy is available on the Website or on request from mPort) (Privacy Policy) and you agree to mPort collecting, storing, using, disclosing and otherwise handling your Personal Information, for any purpose set out in the Privacy Policy or otherwise in accordance with law.
14.2 You understand that:
(a) you do not have an obligation to provide any Personal Information to mPort, or agree to these Terms, but in the event that you do not, mPort will be unable to register you to use the Pods and the Platform and provide you with our services; and
(b) you may make enquiries or complaints about our handling of your Personal Information in accordance with the Privacy Policy.
14.3 You acknowledge that mPort may, at its discretion, de-identify or destroy any of your Personal Information which mPort holds.
15.1 mPort may terminate these Terms at any time and without cause by providing you with written notice of termination or by terminating your access to the Platform.
15.2 mPort shall not be liable to you for any Loss (including Consequential Loss) incurred by you as a result of the termination of these Terms.
15.3 Upon the termination of these Terms taking effect mPort may restrict your access to:
(a) the Pods; and
(b) certain parts of the Platform or to all of the Platform and may delete any Content posted by you to the Platform.
15.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
16.1 You agree that the Platform and the Content are provided to you on an “as is” basis, and may contain errors, faults and inaccuracies and may not be complete and current or provided on an uninterrupted basis.
16.2 mPort makes no representations, warranties or guarantees of any kind, express or implied, as to the operation or suitability of the Platform or the Content, except as otherwise provided under applicable laws and we do not warrant or guarantee that the Platform will be compatible with, or capable or being used on or in connection with, your computer and communications systems.
You must keep confidential any Content provided to, or accessed by, you through the Pods or the Platform unless that information is publicly available, other than as a result of a breach of any obligation of confidentiality and you must not commercially exploit any such Content.
18.1 mPort may amend these Terms at any time and all amendments will take effect immediately upon the posting by mPort of the amended Terms on the Website.
18.2 You are responsible for regularly reviewing these Terms and your continued use of the Pods or Platform constitutes your agreement to any such amended Terms. If you do not agree to any amended Terms, you must stop using the Pods, Platform and Content.
19.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(e) headings are inserted for convenience and do not affect the interpretation of these Terms;
(f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(g) all monetary amounts are in South African Rands and a reference to payment means payment in South African Rands
19.2 Unless otherwise specified in these Terms, in the event of an inconsistency between these Terms and the Purchase Order, the Purchase Order shall prevail to the extent of the inconsistency.
19.3 You must not assign or otherwise deal with any of your rights or obligations under these Terms without mPort’s prior written consent. mPort may assign, subcontract or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time and without any requirement to notify you.
19.4 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
19.5 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
19.6 These Terms and any Purchase Order constitute the entire agreement between you and mPort in respect of the supply of the Goods or Services and supersede all previous communications, representations, understandings or agreements.
19.7 These Terms are governed by the laws in force in South Africa, and the customer and the Company submit to the non-exclusive jurisdiction of the courts of Western Cape.
19.8 The provisions of clauses 11, 12, 14, 15 and 19 of these Terms survive the expiry or termination of these Terms.
19.9 Each party must: (a) do all acts necessary or desirable to give full effect to these Terms; and (b) refrain from doing anything which might prevent full effect being given to these Terms.
In these Terms and Conditions, the words below have the following meanings:
Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss opportunities.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
mPort means the licensee for mPort in South Africa (MC Design Studios Pty Ltd reg 2001/014798/07)
MyFashion Platform means the features and applications provided under the My Fashion title by mPort, which can be accessed from the mPort platform.
MyHealth Platform means the features and applications provided under the My Health title by mPort, which can be accessed from the mPort platform.
Non PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, and includes sensitive information.
Platform means the digital platform operated by mPort, including, but not limited to, the Website and Mobile App.
Pod means booths owned and operated by mPort which are able to:
(a) take measurements of, and collect data about, a person who is inside the booth using infra-red sensors to enable a 3D map of the person to be created; and
(b) process and analyse the measurements and data collected in accordance with paragraph (a). Privacy Act means the POPIA Act.
Purchase Order means an order or other request submitted by you to mPort for the provision of the Goods and Services on these Terms, which has been accepted by mPort. Services means any services provided by mPort to you as listed in the accepted Purchase Order and may include access to, and use of, the Pods and the Platform. Third Party Application means any Content, product, service, system, application or internet site that is integrated or interfaced with the Pods or Platform or otherwise interacts with the Pods or Platform and that is owned or operated by a third party. Terms means these Terms and Conditions. Website means http://mport.com and associated websites. Mobile App means the mPort mobile application.
mPort provides 3D mapping services and other content. Certain mPort services including the use of the mPod are provided to you free-of-charge. Other mPort services require payment before you can access them. The mPort services that may be accessed after payment are currently referred to as the “Premium Services”. The mPort service that does not require payment is currently referred to as the “Free Service”. You can learn more about our services by visiting our website.
From time to time, we or others on our behalf may offer trials of the Premium Subscription for a specified period without payment or at a reduced rate (a “Trial”). mPort reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PREMIUM SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, DEPENDING ON YOUR CHOSEN BILLING PERIOD (RECURRING MONTHLY OR YEARLY BASIS). BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PREMIUM SUBSCRIPTION THROUGH YOUR MPORT ACCOUNT’S SUBSCRIPTION PAGE (MyPlan page) OR TERMINATE YOUR MPORT ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED BASED ON YOUR BILLING PERIOD, YOU MUST CANCEL THE APPLICABLE PREMIUM SUBSCRIPTION THROUGH YOUR MPORT ACCOUNT’S SUBSCRIPTION PAGE (MyPlan page) OR TERMINATE YOUR MPORT ACCOUNT BEFORE THE END OF THE RECURRING PERIOD. PREMIUM SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, MPORT WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. THE LIMITATION SECTION SETS FORTH ADDITIONAL TERMS REGARDING CANCELLATION OF YOUR PREMIUM SUBSCRIPTION.
Premium Subscriptions can be purchased by paying a Once off, Quarterly or yearly subscription fee.
When you register for a Premium Subscription or Trial you consent to get access to mPort Premium services immediately. Your payment to mPort will automatically renew at the end of the subscription period, unless you cancel your Premium Subscription through your mPort Account Subscription page (MyPlan page) before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment or Premium Subscription and/or terminate any of the Agreements before the end of the current subscription period, we will not refund any subscription fees already paid to us.
If you wish to receive a full refund of all monies paid, you must contact Customer Support.
mPort may change the price for the Premium Subscriptions and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Premium Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the mPort Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by cancelling your Premium Subscription prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
From time to time, we or others on our behalf may offer a one time payment option to access certain content related to a user’s 3D Body map. mPort reserves the right, in its absolute discretion, to determine your eligibility for a one time payment option, and, subject to applicable laws, to withdraw or to modify the option at any time without prior notice and with no liability, to the greatest extent permitted under the law. By taking up this offer you acknowledge that you will not be charged on a recurring basis and will only have access to the specified content related to your 3D Body map.
For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit a ticket to our customer service department using the Customer Service contact form on the Contact Us section of our website. We will use reasonable endeavours to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.
