THE TERMS AND CONDITIONS GOVERNING USE OF THE “ONTAPTV” SERVICE BY INDIVIDUALS FOR THEIR PRIVATE USE
LAST UPDATED: 11 SEPTEMBER 2015
(Please note in particular the clauses in these terms and conditions which are in uppercase and/or bold, which might limit our risk or liability, require you to indemnify us or to assume risk and liability for certain issues, or to acknowledge certain facts)
1 In these Terms and Conditions the following terms will have the following meanings –
1.1 “Affiliate” in relation to us means any person which is –
1.1.1 controlled by us;
1.1.2 controls us; or
1.1.3 is under common control with us;
1.3 "Applicable Laws" means the applicable provisions of any applicable laws;
1.4 "Billing Period" means the period ‑
1.4.1 beginning on the first day of your subscription to the Service; and
1.4.2 ending thirty (30) calendar days later, which is also the Monthly Due Date;
1.5 “Content” means the audiovisual, audio and/or data material provided by us on the Service;
1.6 "Content Rights" means the copyright and other Intellectual Property rights to Content;
1.7 "Coverage Area" means the geographical area of South Africa in which the Service is available;
1.8 "CPA" means the Consumer Protection Act, 2008;
1.9 "ECT Act" means the Electronic Communications and Transactions Act, 2002;
1.10 "Device" means the personal computer, tablet, smart phone, SmartTV, game console and other similar receiving equipment required in order for you to receive, access and use the Service and, if applicable, relay it to an enabled viewing device and registered to your Profile;
1.11 "your Fees" means either the fees payable by you in respect of your transactional purchases from the TVOD Offering or the subscription fees payable by you in respect of the SVOD Offering (inclusive of VAT), as reflected in your Request Record and amended from time to time by us on notice to you, which fees are payable to us directly or through one of our authorised representatives, or in any manner authorised by us from time to time;
1.12 "Gateway", "we" or "us" means Gateway Communications (Pty) Ltd and its successors in title;
1.13 "General Amendment" means an amendment of these Terms and Conditions by us from time to time on notice to you;
1.14 "Intellectual Property" means any and all rights, title and interest in intellectual property (whether registered or not), including past and future copyright, related rights, patents, utility models, trademarks, trade names, service marks, designs, databases, graphics, icons, semi-conductor topography, know-how, trade secrets and inventions (whether patentable or not), goodwill and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property which are owned, licensed to, used and/or held (whether or not currently) by us, our Affiliates or our Content suppliers;
1.15 "Monthly Due Date" means the date each month by which we must receive payment of your Fees, being the date referred to in clause 1.4.2 above;
1.16 "Package" means a genre and/or theme package of audiovisual, audio and/or data material offered by us on the SVOD Offering;
1.17 "Payment Instruction" means the instruction by you to your bank to pay your Fees by way of a recurring payment;
1.18 “Personal Information” means private information about an identifiable person including, but not limited to, name, date of birth, age, banking details, phone numbers, e‑mail address, viewing habits, views, opinions or preferences and online identifiers;
1.20 “Profile” refers to the user profile created of you when you registered as a registered user of the Service on the Site and which is made up of your Personal Information;
1.21 "Related Products" means the various systems which we may use or deem necessary for or associated with the provision of the Service, and the facilities used by us for or ancillary to the Service, including but not limited to technical services, the Content security management system, the software operating system, software applications and subscriber management services and business systems;
1.22 "the Service" means the over the top video on demand service owned and operated by us, known as “ONTAPtv.com®”, which is accessed through the internet from the Site (including through the mobile application downloaded onto your Device), and its Related Products, associated services, features, facilities and applications provided by us;
1.23 “Site" means the website located at www.ontaptv.com, or any other uniform resource locator (URL) used by us from time to time and includes access of the Site and the Service through the Service application downloaded onto your SmartTV, tablet or mobile device;
1.24 “SVOD Offering” refers to the Packages, which is offered to you either (a) on a rolling month to month subscription basis or (b) on a month to month pay as you go basis and which on subscription permits you to stream and/or download available Content from your chosen Package for viewing on your Device during the available viewing period;
1.25 "System Rights" means the copyright and other Intellectual Property rights in the Device and in the Service, including the software incorporated therein;
1.26 "Terms and Conditions" means the terms and conditions contained in this document, as amended from time to time, such Terms and Conditions being freely available to you on the Service or on request to us at any time;
1.27 “TVOD Offering” means the Content on the Service which is offered to you on a download to rent basis in consideration for a one off transactional fee for viewing on your Device during the available viewing period;
1.28 "VAT" means Value-Added Tax as provided for in the Value-Added Tax Act, 89 of 1991 or any similar consumption based tax which we or our agents may be obliged to levy and/or collect;
1.29 "You" or "your" refers to a person who has requested access to the Service on these Terms and Conditions;
1.30 "your Physical Address" means the physical address recorded in your Request Record (being the physical address furnished by you in your Request, as amended from time to time on notification by you to us);
1.31 "your Request" means your request, which request may have been made by you in the following ways:
1.31.2 by making use of the Site;
1.31.3 if applicable, via your Device; or
1.31.4 in any other manner authorised by us from time to time;
to purchase Content from the TVOD offering and/or to subscribe to the SVOD Offering;
1.32 "your Request Record" means the electronic record kept by us of your Request, as updated from time to time, and containing:
1.32.1 your Personal Information;
1.32.2 your Fees and your preferred method of payment;
1.32.3 your Device details; and
1.32.4 your election in respect of marketing communications.
2 Any reference in these Terms and Conditions to –
2.1 the singular includes the plural, and vice versa; and
2.2 one gender includes the other gender.
3 Please note that you may be entitled to certain rights in terms of Applicable Laws. For the avoidance of any doubt, no term or provision contained in the Agreement is to be interpreted or construed so as to directly or indirectly –
3.1 exclude, limit, waive or deprive you of any rights which you may have in terms of Applicable Laws;
3.2 avoid any obligation or duty which we may have in terms of Applicable Laws;
3.3 set aside or override the effect of any applicable provision of Applicable Laws; or
3.4 authorise us to do anything that is unlawful in terms of Applicable Laws or fail to do anything that is required in terms of Applicable Laws,
to the extent that it is impermissible to do so.
Place of Agreement, Commencement and Duration
4 The Agreement is deemed to be concluded at our principal place of business in Woodmead, South Africa, and commences on the date on which we, after receiving full and valid payment of your Fees in terms of the Agreement, accept your Request by activating your access to the Service.
5 Subject to the breach provisions in these Terms and Conditions, the Agreement is binding on you and us unless and until terminated by you or by us as follows –
5.1 If and to the extent that s 42 (2) of the ECT Act applies, you will have a 7 day cooling-off period from the date of your Request. If and to the extent that s16 of the CPA applies, if you conclude a transaction on the Service as a result of any direct marketing by us, you will have a 5 day cooling-off period from the date of your Request. Note that due to the nature of the TVOD Offering, neither s42 (2) of the ECT Act or s16 if the CPA applies to the TVOD Offering; or
5.2 we notify you (in any manner, whether telephonically, electronically, in writing or in person) that we are terminating the Agreement with effect from a specified future date, which we may do at any time subject to clause 7; or
5.3 you notify us (in any manner, whether telephonically, electronically, in writing or in person) that you are terminating the Agreement with effect from a specified future date, which you may do at any time, subject to clause 7.
6 The termination of the Agreement will not affect –
6.1 our rights or remedies, or yours, for the period prior to termination; or
6.2 those rights and obligations which, in terms of the Agreement, either expressly or by implication, will survive beyond termination.
7 If either party terminates the Agreement in terms of clause 5 -
7.1 In the case of clause 5.1 and subject to clause 7.3, such termination will take effect immediately on receipt of notification of termination;
7.2 in the case of clause 5.2 and clause 5.3 –
7.2.1 where your Fees are payable by way of a recurring payment then, subject to clause 7.4, such termination will take effect from the last day of the Billing Period in which the termination notice is received; or
7.2.2 where your Fees are payable by way of the pay as you go method of subscription then such termination will take effect once your subscription period expires.
7.3 In the case of termination in accordance with clause 5.1 or 5.2, you will receive a refund of your Fees within 30 days less the pro rata Fees of the number of days of subscription prior to expiry.
7.4 In the case of termination in accordance with clause 5.3 read with clause 7.2.1 or clause 7.2.2 then you will not receive a refund of your Fees and your subscription and access to the Service will continue until the last day of the Billing Period.
8 You must be 18 years of age to use the Service. Individuals under the age of 18 may use the Service only with the involvement of a parent or legal guardian, under such persons Profile and otherwise subject to the Terms and Conditions.
9 The Service, and any Content viewed through the Service, are for your personal and non-commercial use only. Dependent on whether you are using the TVOD or the SVOD Offering on the Service, we grant you a limited, non-exclusive, non-transferable, license to access the Service and view Content through the Service on a streaming and/or download or on a download to rent basis for that purpose. We may offer you free trial packs from time to time. The free trial period lasts for 30 days only, or as otherwise specified during registration. Free trials may not be combined with any other offers. We reserve the right, in our absolute discretion, to determine your free trial eligibility.
10 You may only access the Service in the Coverage Area. We will use technologies to verify your geographic location.
11 On subscription to the SVOD Offering you will be entitled, dependent on the indicated rights of the Content and dependent on the Package(s) you have subscribed to, to either stream and/or download Content onto your Device. If you download Content, such Content will only be available for viewing on your Device for 48 hours from initial download. You will have access to the Content in your subscribed Package for download or streaming for the entire Billing Period. On expiry of the Billing Period (a) if you have subscribed to the SVOD Offering on a pay as you go basis we must receive payment of your Fees on or before expiry of the Billing Period in order for your subscription to be renewed and you may not be able to view any Content previously downloaded and available for viewing on your Device after the expiry or (b) if you have subscribed to the SVOD Offering on a rolling month to month basis then your subscription will be automatically renewed for another Billing Period provided we receive payment of your Fees by way of your Payment Instruction.
12 On receipt of your Fees for Content purchased on the TVOD Offering you will be entitled to either stream such Content immediately (subject to network capability) and/or download such Content on your Device. On receipt of your Fee, such Content will only be available for viewing on your Device for 48 hours from receipt of your Fee.
13 You must register your Device against your Profile in order to stream and/or download Content on that Device. The number of Devices on which you may stream and/or download Content is limited. Go to “Profile” to see the number of Devices on which you may stream and/or download Content. The number of Devices on which you may stream and/or download may change from time to time at our discretion and dependent on the rights we have in Content.
14 The number of streams and/or downloads that you can activate simultaneously across your Devices is limited to one stream. If you commence streaming and/or downloading of Content on one Device and parallel you commence streaming and/or downloading of Content on a second Device, the stream and/or download on your first Device will stop and the second Device will take precedence. This does not apply to Content that is already downloaded on your Devices and which can be viewed at any time within the available viewing period.
15 We continually update the Service, including the Content library. In addition, we continually test various aspects of the Service, including the Site, service levels, plans, promotional features, availability of Content, delivery and pricing. We reserve the right, and by using the Service you agree that we may, include you in or exclude you from these tests without notice. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we offer and operate the Service.
16 The quality of display of the Content may vary from Device to Device and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your internet connection. The time it takes to begin watching Content will vary based on a number of factors including your location, available bandwidth at the time, the Content you have selected and the configuration of your Device.
17 We may make some Content available for download in a higher resolution format. While we recommend a higher resolution format when you intend to view Content on a large screen such as your television screen we make no guarantee that your Device will be able to download the Content in a higher resolution (due to storage or network issues) nor do we guarantee picture quality when tethering your Device to a larger screen.
18 You may limit the maturity level of Content viewable by other household members with the parental control feature accessible within the sub-account function from the “Profile” page on the Service.
19 You are responsible and have access and control over your Profile. Your control is exercised through your password and therefore to maintain exclusive control, you should not reveal the password to anyone (including any member of our Customer Support). If you share your password or allow others to access your Profile, you agree to be responsible for assuring that such persons comply with these Terms and Conditions and you will be responsible for the actions of such person.
20 The Service is provided on a pre-paid basis.
21 When purchasing Content available on the TVOD Offering you must make, and we must receive, payment of your Fees at the time of purchase in order for you to stream and/or download the Content onto your Device and commence watching.
22 When subscribing to the SVOD Offering you must make, and we must receive, payment of your Fees at the time of subscription in order for you to download and/or stream the Content onto your Device and commence watching. You may subscribe either on a rolling month to month basis or on a pay as you go basis. In order to have continued access to the Service after your initial Billing Period you must make, and we must receive, payment of your SVOD Fees in advance and thereafter on or before the Monthly Due Date. If you have subscribed on a rolling month to month basis this will be automatically received by way of your Payment Instruction.
23 We may offer discounts dependent on certain purchasing rules. For example we may grant you a discount if you subscribe to more than one Package of the SVOD Offering. If we do so your Fees will be discounted according to the discount rule applicable at the time of your subscription. Please read the “Review your order” page carefully before proceeding to checkout to ensure you understand how you will be invoiced. We reserve the right to withdraw any discounts published provided that we will not withdraw a discount offered to you once you have subscribed based on a discount offered.
24 If we do not receive payment of your Fees as contemplated in clause 21 and 22 above, we will cancel your Request.
25 In addition to your Fees, you will be liable to pay any data or other charges levied by a third party service provider to enable you to use the Service, including a mobile operator, if applicable.
26 If your subscription to the SVOD Offering is suspended, we will not reactivate your use to the Service until we have received payment of your Fees.
27 We may from time to time review and amend the fees payable in respect of access to the Service. We will notify you of such an amendment as soon as practicable prior to implementing it, so that if you wish to terminate the Agreement you may do so.
28 We may alter the Payment Instruction under which you pay your Fees to correspond with any change in your Fees to us, if any, if the amount payable by you to us should change for any reason or in particular when you subscribe to additional Packages.
29 We may use payment systems owned and operated by third parties ("Payment System Providers") to facilitate the collection of fees and other amounts payable by you in respect of the Service.
30 If a piece of Content becomes unavailable following a transaction but prior to download, your sole remedy is to receive replacement content. If technical problems prevent or unreasonably delay delivery of the Content, your sole remedy is to receive replacement content.
31 We may waive our right to demand and/or receive payment of the whole or part of your Fees for any component of the Service, Billing Period, and/or persons (or categories of persons), taking into account any factors determined by us. If we waive any of our rights in terms of this clause, such waiver will be without prejudice to any other rights, interests or expectations that we may have, and you will have no right or expectation that we will waive our rights again in the future. If we waive our right to demand and/or receive payment in terms of clause 31, we may, at any time, withdraw, in whole or in part, that waiver and exercise our right to demand and receive payment of your Fees in terms of these Terms and Conditions, provided that –
31.1 we will give you reasonable notice that we intend to demand payment in the future; and
31.2 we will require payment only from the date specified in the abovementioned notice, which date will be a reasonable time after the date of the notice.
32 If we withdraw a waiver in terms of clause 31, you must pay, and we must receive, your Fees on or before the next Monthly Due Date.
33 All subscriptions and rentals of Content are final.
Copies of your Request Record
34 We will make available to you a copy of the Request Record on the Site for your access at any time, alternatively you may at any time request a copy of the Request Record through our call centre and we will send it to you electronically, if you have provided us with the relevant electronic contact details.
35 If you need assistance with your Profile, click on the “Support” link at the bottom of the Site at any time. There you will find the answers to many frequently asked questions and information on reaching a live Customer Support representative.
Your Personal Information
38 In consideration for your payment of your Fees, and subject to you complying with the Agreement, we will provide you with access to the Service in accordance with the Agreement.
39 Subject to your compliance with the Agreement, your access to the Service will continue until it is suspended or the Agreement is terminated in terms of these Terms and Conditions.
Restrictions on access to and use of the Service
40 You may access and use the Service only for private use.
41 You may not use the Service in any manner or for any purpose other than as set out in the Agreement. Nor may you negligently or intentionally permit any other person to do so. Without limiting the restrictions in clause 41, you may not attempt to or –
41.1 access any component of the Service other than those components to which you are authorised to access;
41.2 use the Service, or any component thereof, for any commercial purpose;
41.3 exhibit or provide the Service to the public, whether or not admission fees are charged;
41.4 charge any person a fee to access any component of the Service;
41.5 copy any of the audiovisual, audio and/or data material in the Service;
41.6 hire-out, sell, redistribute, relay, retransmit or rebroadcast any of the audiovisual, audio and/or data material in the Service;
41.7 hack, reverse engineer or otherwise compromise the security of the operating software or encryption software used in the Service; or
41.8 permit, facilitate or condone any other person doing any of the prohibited activities in this clause, whether using your Device or otherwise.
42 You agree that we may, from time to time, and on reasonable notice, delay or interrupt the distribution or reception of the Service, or any aspect thereof, if this is reasonably necessary for any purpose related to our business, including in order to support the provision, operation, maintenance, improvement and security of the Service, or any aspect thereof.
43 You will only be able to access the Service in the Coverage Area.
44 You acknowledge that certain aspects of the Service may only be available in conjunction with certain Devices and/or subject to additional terms and conditions.
45 You may only access the Service by using the Devices and in accordance with its applicable user manual.
46 You undertake to comply with the user manual and any warnings and instructions included with the Device when you use the Service.
Warranties and limitation of liability
47 Subject to any Applicable Laws, we make no warranty or representation, whether expressly or implicitly –
47.1 that you will be able to access or continue to access the Service using the Device, or that such access will be continuous and/or uninterrupted;
47.2 as to the quality of reception by you of the Service, or any aspect thereof, in the Coverage Area to the extent that this depends upon factors beyond our control; or
47.3 that the software used to provide the Service, including our system software and software applications, is error-free, flawless or without fault.
48 Subject to any Applicable Laws, we are, in the absence of our gross negligence or wilful misconduct or that of any person acting for or controlled by us, not liable -
48.1 to any person for the Content and/or the use of materials constituting the Service, whether provided by us or a third party, and you agree that the Service may contain images and/or Content that may be regarded as unsuitable or offensive by some viewers.
49 You agree that –
49.1 the Content Rights and the System Rights are either owned by, or licensed to, us or our Affiliates and that by entering into the Agreement you acquire no right or interest in such rights; and
49.2 you will not infringe our rights or interests, or those of our suppliers or licensors, in the Content Rights and the System Rights, in the course of your access to and use of the Service. Nor may you negligently or intentionally permit any other person to do so.
50 You acknowledge that the provision of the Service includes and relies on a technological security framework ("security framework") designed to protect the Service against unauthorised use, which security framework will be automatically implemented, maintained and modified from time to time.
51 You agree to such implementation, maintenance and modification of the security framework, which may include the disconnection or discontinuation of any features of the Device which facilitate unauthorised use of the Service.
52 Our failure to implement the whole or part of the security framework will not constitute a waiver of any of our rights resulting from the unauthorised use of the Service.
Amendments to and variations in the Service
53 The nature, composition and Content of the Service are determined by us in our sole discretion, and may be changed from time to time, subject to any Applicable Laws, and subject to your right to terminate the Agreement in accordance with these Terms and Conditions.
54 The various Related Products or other systems necessary for or associated with the provision of the Service are determined by us and are subject to ongoing innovation and change and may be amended from time to time, subject to any Applicable Laws and subject to your right to terminate the Agreement in accordance with these Terms and Conditions. Without limiting the above you agree that we may –
54.1 amend the software which is part of the Service by means of software downloads, to address any system errors or other problems relating to the software, to improve security, or to provide additional features or functionality;
54.2 recommend that you upgrade, reconfigure, swap-out, change or replace ("upgrade") at your cost if applicable one or more of the hardware components of any of the Device used by you to access the Service, if your continued access to the Service will be negatively affected if the upgrade, reconfiguration or swap-out does not happen. You acknowledge that the inherent nature of technology is such that as a result of technological development and innovation obsolescent over time, your Device may become outdated over time;
54.3 disable the Service, if we have reason to believe or if we suspect that your age is below the prescribed age restriction or that the Service is being made accessible to persons who are below the prescribed age restrictions; and/or
54.4 disable or remotely alter your access to the Service to prevent you from copying certain Content, programmes or channels, or otherwise infringing our, our Affiliates' or a third party's rights or interests, if we become obliged to do so or if we deem it necessary to do so.
Amendment of the Terms and Conditions
55 Subject to the terms of the Agreement and any Applicable Laws, you agree to be bound by a General Amendment from the date specified in the General Amendment notice, which date will be a reasonable time after the date of the General Amendment notice.
Breach of Agreement
56 If any party ("the Defaulting Party") breaches any provision of the Agreement and fails to remedy such breach within 7 calendar days of receipt of written notice from the other party ("the Aggrieved Party") requiring it to do so, then the Aggrieved Party will be entitled, at its option –
56.1 to claim immediate specific performance of any of the Defaulting Party's obligations under the Agreement, whether or not such obligation is then due; or
56.2 in the event of the breach of a material provision of the Agreement in circumstances where the remedy of specific performance or damages would not adequately prevent the Aggrieved Party from being prejudiced, to cancel the Agreement, in which case the Aggrieved Party must give the Defaulting Party notice in writing of the cancellation, and the cancellation will take effect on the giving of the notice.
57 The cancellation of the Agreement will not affect –
57.1 our rights or remedies, or yours, for the period prior to cancellation; or
57.2 those rights and obligations which in terms of the Agreement, either expressly or by implication, will survive beyond cancellation.
58 The breach provisions in these Terms and Conditions are without prejudice to any other remedies to which a party may be entitled at law, including the right to claim damages.
59 In addition to our rights under clause 6060, if you materially breach the Agreement we may, without prejudice to any other remedy that we may have, immediately and without notice to you, suspend your access to the Service.
60 If we have suspended your access to the Service and you –
60.1 remedy your breach;
60.2 comply with the Agreement; and
60.3 make payment to us of your Fees,
then we will reactivate your access to the Service.
61 These Terms and Conditions, read with your Request Record –
61.1 constitute the sole and complete record of the Agreement between you and us in respect of your access to the Service; and
61.2 supersede any previous agreement between you and us, or between you and any other company, in terms of which you were authorised to have access to the Service.
62 Neither you nor we are bound by any express or implied representation, warranty (except any warranty implied by law), undertaking, promise or the like not recorded in the Agreement.
63 Any relaxation or indulgence which we may show you at any time in regard to the Agreement is without prejudice to, and does not constitute a waiver of, any rights we may have, either in terms of the Agreement or any Applicable Laws.
64 If any provision of the Agreement is found to be wholly or partly invalid, unenforceable or unlawful, then –
64.1 the Agreement will be severable in respect of the provision in question to the extent of its invalidity, unenforceability or unlawfulness; and
64.2 the remaining provisions of the Agreement will remain of full force and effect.
65 We may cede our rights in terms of the Agreement to any person without your consent.
66 You may not cede any of your rights or transfer/assign any of your obligations under the Agreement to any person without our prior written consent.
67 The Agreement is subject to, and will be interpreted, implemented and enforced in terms of the laws of South Africa.
68 The parties consent to the jurisdiction of the Magistrates’ Court in respect of all proceedings arising out of or pursuant to the Agreement. This notwithstanding, either party may institute any proceedings arising out of or pursuant to the Agreement in any Division of the High Court of South Africa having jurisdiction or any other forum having jurisdiction.
69 Subject to the Agreement, the parties choose the following addresses for the service of all notices and processes arising out of the Agreement –
69.1 Us: 1 Woodmead Drive, Building 12, Woodmead Estate, Johannesburg, 2121, Gauteng, South Africa.
69.2 You: Your Physical Address.
70 Either party may at any time by written notice to the other party vary its domicile address to any address within the Republic of South Africa.
71 A notice actually received by a party will be adequate notice to that party notwithstanding that it was not delivered to that party’s domicile address in terms of clause 69.
Resolution of disputes
72 If we are unable to resolve a dispute between you and us concerning the interpretation or application of these Terms and Conditions, any party who wishes to pursue that dispute may, subject to these Terms and Conditions, and without prejudice to any other remedy that such party may have, refer the dispute to arbitration in terms of the expedited rules of the Arbitration Foundation of Southern Africa.
73 Such arbitration proceedings shall be conducted in Johannesburg in English.
74 The arbitration ruling will be final and the unsuccessful party will pay the costs of the successful party on an attorney and own client scale.
75 The expedited rules of the Arbitration Foundation of Southern Africa may be downloaded from the following website: http://www.arbitration.co.za
76 We draw to your attention that you may be entitled to certain consumer rights in terms of the ECT Act and/or the CPA and other applicable laws.
77 No provision of these Terms and Conditions is to be interpreted or construed as excluding, limiting or waiving any rights which you may have, or avoiding any obligation which we may have, in terms of the ECT Act, the CPA or any other applicable laws, whether in South Africa or any other country having jurisdiction (unless such laws permit the parties to agree otherwise).