1. Acceptance of Terms & Conditions – warranty of capacity to contract
Use of this website is entirely at your own risk, to the maximum extent permitted by law.
This website is made available to you by MTN Zakhele Futhi (RF) Limited (“MTN Zakhele Futhi”) conditional upon your acceptance, without modification, of these Terms and Conditions as amended from time to time.
The Terms and Conditions set out below apply to every person who uses, accesses, refers to or views this website (“you” or “your”). Your access to and use of this website constitutes your agreement to and acceptance of these Terms and Conditions.
You hereby warrant to MTN Zakhele Futhi that you have the required legal capacity to enter into and be bound by a contract. Black minors must be assisted by their parents or legal guardians when reading these Terms and Conditions. Black groups must be represented by an authorised representative. If you are unsure whether you have the legal capacity to enter into contracts, please ask someone to assist you with this information before continuing to use this website. If you do not agree with any provision contained in these Terms and Conditions, please stop using or accessing this website immediately.
MTN Zakhele Futhi reserves the right, in its sole discretion, to amend (including without limitation, by the addition of new Terms and Conditions) these Terms and Conditions at any time and from time to time without notice to you. Any such amendments shall come into effect immediately and automatically. You undertake to review these Terms and Conditions regularly prior to use of this website for any such amendments.
2.1. The following terms shall have the corresponding meanings assigned to them:
2.1.1. “ECTA” means the South African Electronic Communications and Transactions Act No. 25 of 2002 (as amended or replaced from time to time).
2.1.2. “Intellectual Property” means, collectively, the patents, rights of copyright (and associated moral rights), Trade Marks, brands, names, trade names, designs, graphics, icons, domain names, hyperlinks, Know-How, trade secrets and any other type of intellectual property rights (whether registered or unregistered including applications for and rights to obtain or use same) which are owned by, licensed to, used and/or held (whether or not currently) by MTN Zakhele Futhi on or in connection with this website.
2.1.3. “Know-How" means all the know-how, models, ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used by MTN Zakhele Futhi in connection with this website, as well as, all available information regarding marketing and promotion of the products and services described in this website, as well as all and any modifications or improvements to any of them.
2.1.4. “MTN Zakhele Futhi ” means MTN Zakhele Futhi (RF) Limited, its affiliates, subsidiaries and their subsidiaries. Any reference to MTN Zakhele Futhi will include the employees, officers, advisers, service providers, suppliers and content providers of MTN Zakhele Futhi.
2.1.5. “Terms and Conditions” means these Terms and Conditions.
2.1.6. “Trade Marks” means those trade marks owned by MTN Zakhele Futhi and any other trade marks, designs, logos, style names and slogans which MTN Zakhele Futhi owns or has the right to use or any derivative service offerings of, and applications for, any of same.
2.1.7. “Website Material” means the contents of this website, including without limitation, all and any information, data, documents, content, Intellectual Property, material, products (including software) or services contained in, accessed through, or downloaded or obtained from this website, including but not limited to the prospectus issued by MTN Zakhele Futhi (RF) Limited (“MTN Zakhele Futhi”) in relation to an invitation to qualifying Black people and Black groups to subscribe for up to a certain number of ordinary shares in MTN Zakhele Futhi at a certain price per MTN Zakhele Futhi share (the “Prospectus”), and the relevant application form in relation to such shares annexed to such prospectus (the “Application Form”).
3.1. Unless the context requires otherwise or it is expressly stated to the contrary, any words and phrases:
3.1.1. defined in these Terms and Conditions will bear the same meaning throughout these Terms and Conditions;
3.1.2. not defined in these Terms and Conditions but defined in ECTA will bear the same meaning given to them in ECTA.
3.2. A copy of ECTA can be viewed and downloaded here.
3.3. The headings used in these Terms and Conditions are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the whole or any part of these Terms and Conditions.
3.4. No term or provision contained in these Terms and Conditions is to be interpreted or construed so as to exclude any rights granted by Chapter VII of ECTA to any natural person who enters or intends entering into an electronic transaction with MTN Zakhele Futhi on this website.
3.5. References to "writing" or notices "in writing" by MTN Zakhele Futhi in these Terms and Conditions only includes writing on paper signed in ink by an authorised representative of MTN Zakhele Futhi and specifically excludes any writing which may be in electronic form.
3.6. Any reference in these Terms and Conditions to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.
4.1. Subject to the provisions of these Terms and Conditions, you may only download, view and print the Website Material restrictively for your own personal use and only for non-commercial purposes. This permission does not extend to the source code of this website or to the source code of any software or computer program that forms part of the Website Material.
4.2. You may not alter, modify, decompile, reverse-engineer, copy, reproduce, distribute, transfer, sell, transmit, display, broadcast, publish, exploit, license or create derivative works from the Website Material.
4.3. You may not use this website or the Website Material for any illegal or unlawful purposes or as prohibited by these Terms and Conditions, the Prospectus or the Application Form.
4.4. You may not link to any page on this website or frame this website or any of the pages on this website in any way whatsoever without the prior written permission of MTN Zakhele Futhi. Recognising the global nature of the Internet, you agree to comply with all local laws, rules and regulations regarding online conduct.
4.5. This website is Copyright © 2016 MTN Zakhele Futhi. All rights reserved. You must get MTN Zakhele Futhi’s prior written approval if you wish to copy, reproduce, distribute, transmit, display, broadcast or publish any Website Material, whether electronically or otherwise. Unless the relevant additional Terms and Conditions provide otherwise, requests for approval must be submitted to: For attention: c/o Nedbank Share Administration, 5th Floor, Block D, 135 Rivonia Road, Sandown, Sandton, 2196, telefax no: (011) 294 8018. MTN Zakhele Futhi is entitled, in its sole discretion, to withhold or grant consent and may also impose any conditions on any consent which is granted.
4.6. To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Website Material may be expressly permitted by MTN Zakhele Futhi (such permission to be interpreted in its most restrictive sense) you may do so, provided that all Trade Marks, trade names and all copyright, ownership, proprietary and confidentiality notices as are included on the original are retained and displayed without alteration or modification and not in any manner obscured or removed.
4.7. You acknowledge that you do not acquire any ownership rights or rights of use in or to any Website Material by downloading that Website Material or by copying, reproducing, distributing, transmitting, displaying, broadcasting or publishing that Website Material where permitted to do so.
4.8. You may not transfer any rights or obligations in terms of these Terms and Conditions to any other person or entity.
4.9. You are solely responsible for obtaining and maintaining all facilities, services, products and equipment which may be required by you for the exercise of your rights of permitted use of this website.
5.1. You may not use this website to obtain or distribute:
5.1.1. copyrighted material or material protected by laws relating to intellectual property rights without the permission of MTN Zakhele Futhi;
5.1.2. material containing viruses or any other destructive materials or data or code which is able to corrupt, interfere with, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation of a computer system or hardware or software;
5.1.3. material which is defamatory, unlawful or contains hate speech; or
5.1.4. bulk e-mail, whether solicited or unsolicited.
5.2. You must not interfere with or jeopardise the functionality or the operation of any part of this website or attempt to interfere with or jeopardise, disrupt, disable, harm or otherwise impede in any manner the functionality or operation of any part of this website or of the Website Material.
5.3. You are strictly prohibited from using this website for "spoofing", "hacking", "flaming", "cracking", "phishing" or "spamming".
5.4. You may not intercept any information transmitted to or from MTN Zakhele Futhi or this website which is not intended by MTN Zakhele Futhi to be received by you.
5.5. You must respect other users of this website at all times.
6.1. The Intellectual Property is owned by MTN Zakhele Futhi or used under license or with permission. Trade Marks displayed on this website are either trade marks owned by MTN Zakhele Futhi or belong to their respective owners. You may not copy, reproduce, display or use any Intellectual Property in any manner whatsoever without MTN Zakhele Futhi’s prior written permission and nothing contained on this website should be construed as granting any licence or right of use of any Intellectual Property.
6.2. Where any of the Website Material has been licensed to MTN Zakhele Futhi or belongs to any third party, your rights of use will also be subject to any Terms and Conditions which that licensor or third party imposes from time to time and you agree to comply with such Terms and Conditions.
7. MTN Zakhele Futhi may, in its sole discretion, change, amend, suspend, withdraw or discontinue any aspect, feature, product, service or information contained on this website at any time without any prior notice to you. MTN Zakhele Futhi may also impose limits on certain features and services or restrict your access to any or all of the website or Website Material without notice or liability.
8.1. To the maximum extent permitted by law, your use of this website and reliance on any Website Material or services available on this website is entirely at your own risk, and this website, including all Website Material, is provided “as is” and MTN Zakhele Futhi will not be liable for any unavailability, interruption, downtime, malfunction, or failure of this website or the Website Material for any reason whatsoever.
8.2. MTN Zakhele Futhi does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed on, linked to or distributed through this website or the Website Material. You acknowledge that any reliance upon any such opinion, advice, statement or information shall be at your sole risk. MTN Zakhele Futhi reserves the right, in its sole discretion, to correct any errors or omissions in any portion of this website and the Website Material.
8.3. Information, ideas and opinions expressed on this website and in the Website Material should not be regarded as professional advice or the official opinion of MTN Zakhele Futhi and you are strongly advised to seek professional advice before taking any course of action related to them. More specifically, certain information such as share price data, interest rates and exchange rates constitute guidelines only and the provision of this data may be delayed by a period of time. Accordingly, you are strongly advised to consult your professional adviser before acting on such information. Calculators (if any) supplied on this website are for indicative values only and MTN Zakhele Futhi shall not be responsible or liable for any inaccuracies or miscalculations arising out of defects or incorrect use.
8.4. Subject to the provisions of ECTA and to the fullest extent permissible by law, MTN Zakhele Futhi disclaims all warranties of any kind, whether express or implied, including without limitation to the implied warranties of merchantability or fitness for a particular purpose, in respect of this website and the Website Material. MTN Zakhele Futhi does not warrant that the functions contained in this website or the Website Material will meet your requirements; will be uninterrupted, timely, secure or error free; will meet your requirements or operate in every combination selected by you for use; that any defects or errors will be corrected; or that this website or the Website Material or the server that makes them available is free of viruses or other harmful components. MTN Zakhele Futhi does not warrant that this website or the Website Material will provide specific results from use of this website or the Website Material or any content, search or link within them or that the results that may be obtained from the use of this website will be accurate or reliable.
8.5. Whilst MTN Zakhele Futhi takes reasonable precautions in its operation of the website, neither MTN Zakhele Futhi nor its agents or representatives will assume any responsibility and neither MTN Zakhele Futhi nor its agents or representatives (in whose favour this constitutes a stipulatio alteri) shall be liable for any damages to or for viruses that may infect your computer equipment or other property on account of your access to, use of or browsing of this website or the Website Material or your downloading of any materials, data, text images, video or audio from this website or the Website Material. Any material downloaded or otherwise obtained through the use of this website or the Website Material is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
8.6. To the extent that information displayed on this website relates to any stock exchanges, financial markets, financial products, securities, derivatives, units, funds, currencies and/or exchange rates, you acknowledge that this information may not be accurate or complete. You further acknowledge that any assessment or reflection of the performance of any security, unit, fund, product, stock exchange, derivative or financial market does not mean that such performance will be repeated or should be relied upon in any way.
8.7. To the maximum extent permitted by law, you agree that under no circumstances whatsoever, including as a result of MTN Zakhele Futhi’s negligent (including grossly negligent) acts or omissions or those of its servants, agents or contractors or other persons for whom in law MTN Zakhele Futhi may be liable, shall MTN Zakhele Futhi or its servants, agents or contractors or other persons for whom in law MTN Zakhele Futhi may be liable (in whose favour this constitutes a stipulatio alteri) be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), including but not limited to any loss of profits, loss of revenue, loss of operation time, corruption or loss of information or data and/or loss of contracts sustained by you, your directors, servants, dealers or customers, resulting from your use of or inability to use the website or the Website Material.
8.8. You hereby indemnify MTN Zakhele Futhi and its officers, directors, employees, servants, agents or contractors or other persons for whom in law MTN Zakhele Futhi may be liable (in whose favour this constitutes a stipulatio alteri) from any loss, damage, damages, liability, claim or demand due to or arising out of your use of this website or the Website Material or your breach of these Terms and Conditions.
8.9. Links to and from this website to other websites belonging to or operated by third parties do not constitute an endorsement by MTN Zakhele Futhi of such linked websites or their contents nor do they constitute any association by MTN Zakhele Futhi with their owners or operators. MTN Zakhele Futhi has no control over such linked websites and is not responsible or liable for any content, goods or services available on or through any such linked websites or for any damage, damages or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods or services available on or through any such linked websites. You agree that where you access linked websites, you do so entirely at your own risk, to the maximum extent permitted by law.
8.10. Your interaction, correspondence or business dealings with third parties which are referred to or linked to or from this website entirely at your own risk and are solely between you and such third party including the acquisition, disposal, payment and delivery of any goods or services, and any terms, conditions, warranties or representations associated with such interaction, correspondence or business dealings. You are solely responsible for identifying and familiarising yourself with any Terms and Conditions which will govern your relationship with such third party. To the maximum extent permitted by law, you agree that MTN Zakhele Futhi shall not be responsible or liable for any damage, damages or loss caused or alleged to be caused by or in connection with your interaction, correspondence or business dealings with such third parties.
9.1. You may not use this website or the Website Material for any purpose not related to your application for MTN Zakhele Futhi shares through the website.
9.2. You can apply for MTN Zakhele Futhi shares in accordance with the Prospectus and by following the relevant steps on the website. Should you apply for MTN Zakhele Futhi shares , you will be bound by the terms and conditions of the Prospectus and any relevant documents referred to therein.
9.3. Except as expressly permitted by these Terms and Conditions or by separate written arrangement with us, you agree not to, and agree to ensure that no other party permits any other person, directly or indirectly, to, access, use or otherwise exploit the right and ability to use the Website Material in any way, including by permitting it to be either (i) distributed, sublicensed, loaned, transferred or provided to others in a similar way; or (ii) used as a hosted, bureau, outsourcing, or similar service, or to use or copy (irrespective of the extent of copying) the whole or any part of the graphic user interface or the website for incorporation into or the development of any software or other product or technology.
9.4. When accessing and using the Website Material or the website, you must: (i) not attempt to undermine the security or integrity of MTN Zakhele Futhi’s computing systems or networks or, where the Website Material or the website are hosted by a third party, that third party’s computing systems and networks; (ii) not use, or misuse, the Website Material or the website in any way which may impair the functionality thereof, or impair the ability of any other user to use it; (iii) not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Website Material or the website is hosted; (iv) not modify, translate, or create derivative works based on the Website Material or the website, nor reproduce, reverse assemble, decompile or reverse-engineer the Website Material or the website, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the Website Material or the website or any files contained in or generated by the Website Material or the website, nor may you permit any third party to do so; and (v) not merge or combine the whole or any part of the Website Material or the website with any other software or documentation without the prior written consent of MTN Zakhele Futhi.
9.5. We will use reasonable endeavours to keep access to the Website Material and the website available at all times. However, to the maximum extent permitted by law, you agree that we will not be liable to you 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 use of or access to the Website Material or the website for any reason whatsoever. We will use our best endeavours to notify you of any maintenance and repairs which may result in the Website Material or the website being unavailable, but do not warrant that such notice will be given in advance, especially in the case of unplanned maintenance or repairs.
10.1. Registration on the website may be required to make use of certain features of the website. By registering on or otherwise accessing the website, you consent to our use of the information provided by yourself for the purpose of facilitating and implementing the MTN Zakhele Futhi scheme as contemplated in the Prospectus and in accordance with our [Privacy Policy – hyperlink to Privacy Policy].
10.2. We reserve the right to suspend or cancel your account at any time or to refuse account applications for any reason that we, in our sole and absolute discretion, deem appropriate, including, without limitation: (i) providing false, inaccurate, outdated, incomplete or inappropriate information, (ii) it coming to the attention of MTN Zakhele Futhi that you are not permitted or authorised to use the website or to register thereon, (iii) any attempt to defraud MTN Zakhele Futhi or other users or accountholders or to make untrue, defamatory or malicious comments about MTN Zakhele Futhi or other users or accountholders or any third party, including MTN Zakhele Futhi, MTN Zakhele (RF) Limited, MTN Group Limited or any direct or indirect subsidiary of MTN Group Limited, and (v) any violation of these Terms and Conditions, any separate agreement entered into between you and MTN Zakhele Futhi, or any applicable laws or regulations.
10.3. You are required to inform us immediately of any change to the information provided by you. You indemnify and hold harmless MTN Zakhele Futhi, our subsidiaries, affiliates, licensors, employees and agents, as well as MTN Group Limited, any direct or indirect subsidiary of MTN Group Limited, any central securities depository participants engaged with respect shareholders of MTN Zakhele (RF) Limited, the transfer secretary to MTN Zakhele Futhi and Strate (South Africa's central securities depository) (together the “Third Parties” and each a “Third Party”), against any loss or damage that may arise from the reliance by MTN Zakhele Futhi, another user of the website, any Third Party or any other third party on the information provided by you.
10.4. You agree to: (i) maintain the security of your unique application reference number, password (if any) and identification; (ii) notify MTN Zakhele Futhi immediately of any unauthorised use of your account or other breach of security; (iii) accept all responsibility for any and all activities that occur under your account; and (iv) accept all risks of unauthorised access to any information you provide. You hereby indemnify and hold MTN Zakhele Futhi and each Third Party harmless for any liability or damage that may arise as a result of the compromise of your account’s security.
11.1. By using this website, you agree that these Terms and Conditions create a binding agreement between MTN Zakhele Futhi and you, even though these Terms and Conditions are wholly or partly in the form of a data message. You agree specifically that:
11.1.1. the agreement will be treated as if it was concluded at the physical address detailed in clause 13.1 below on the date on which you first made any use of this website;
11.1.2. an electronic signature is not required by you or MTN Zakhele Futhi for purposes of agreeing to these Terms and Conditions. You agree that by using this website or the Website Material this will be sufficient evidence of your agreement to these Terms and Conditions;
11.1.3. any data message sent by you to MTN Zakhele Futhi will be deemed to have been sent from the physical address detailed in clause 13.1 below if neither your usual place of business nor residence is located within the Republic of South Africa;
11.1.4. any data message sent by MTN Zakhele Futhi to you will be deemed to have been received by you at the physical address detailed in clause 13.1 below if neither your usual place of business nor residence is located within the Republic of South Africa;
11.1.5. a data message sent by you to MTN Zakhele Futhi will only be treated as having been received by MTN Zakhele Futhi when an acknowledgement of receipt is sent by an individual who had authority to act on behalf of MTN Zakhele Futhi in respect of that data message; and
11.1.6. this agreement will be interpreted and implemented in accordance with the laws of the Republic of South Africa and you agree to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg).
12.1. MTN Zakhele Futhi chooses the below addresses for service for all purposes under these Terms and Conditions, whether in respect of court process, notices or other documents or communications of whatsoever nature:
12.1.1. Physical Address: 5th Floor, Block D, 135 Rivonia Road, Sandown, Sandton, 2196, South Africa
12.1.3. current fax no: (011) 294 8018
12.1.4. For attention: c/o Nedbank Share Administration
12.1.5. All notices to MTN Zakhele Futhi must be marked for the attention of c/o Nedbank Share Administration. All notices of a legal nature or relating to legal proceedings must be delivered by hand to the above physical address or sent to the above fax number.
12.1.6. Notices given to the above addresses will only be deemed to have been duly given:
12.1.6.1. 3 days after delivery, if delivered by hand to the above physical address;
12.1.6.2. 3 days after confirmed successful transmission, if sent to the above fax number.
13.1. Any provision in these Terms and Conditions which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of Terms and Conditions, without invalidating the remaining provisions of these Terms and Conditions.
14.1. You acknowledge that you have read and understood MTN Zakhele Futhi’s Privacy Policy, the terms of which are incorporated into these Terms and Conditions.
14.2. You agree that we shall be entitled to send "cookies" from this website to your computer. You acknowledge that a “cookie” is simply a message given by our website to your browser which is stored on your computer and contains information to personalise your experience on our website by being relayed to our server each time your browser requests a page from our website.
15.1. You expressly give your consent for us to monitor your internet and e-mail traffic on our various website servers and domains. You acknowledge that MTN Zakhele Futhi monitors internet and e-mail traffic on these various website servers and domains primarily to ensure that surfers and consumers are not acting illegally, unlawfully or in breach of these Terms and Conditions and:
15.1.1. to maintain the integrity and security of our websites and our information technology systems;
15.1.2. to investigate and detect any unauthorised use of our websites and our information technology systems; and
15.1.3. as an inherent part of and to secure the effective operation of our websites and our information technology systems.
16.1. If you breach any of these Terms and Conditions, MTN Zakhele Futhi may immediately, automatically and without notice to you, terminate your use of and access to MTN Zakhele Futhi website, and/or prohibit your future access to use of this website, and/or take appropriate legal action against you (including without limitation, applying for urgent and/or interim relief or claiming damages), without incurring any liability to you of any nature whatsoever and howsoever arising, and all of MTN Zakhele Futhi’s rights in this regard are expressly reserved, to the maximum extent permitted by law.
17.1. Any costs, including legal costs on the attorney and own client scale and value-added tax, incurred by MTN Zakhele Futhi arising out of your Use of this website or the Website Material, or a breach of these Terms and Conditions, will be borne by you.
18.1. These Terms and Conditions as well as the Prospectus and the documents referred to therein constitute the whole agreement between you and MTN Zakhele Futhi relating to your access to use of this website.
18.2. No indulgence, extension of time, waiver or relaxation of any of the provisions or terms of these Terms and Conditions which MTN Zakhele Futhi may show, grant or allow you shall operate as an estoppel against any party in respect of its rights under these Terms and Conditions nor shall it constitute a waiver by MTN Zakhele Futhi of any of MTN Zakhele Futhi’s rights and MTN Zakhele Futhi shall not thereby be prejudiced or stopped from exercising any of its rights against you which may have arisen in the past or which might arise in the future.???
19.1. You may have additional rights under your local laws that these Terms and Conditions cannot change. In such event, these Terms and Conditions are to be interpreted in such a way so as not to negate those rights. By law, MTN Zakhele Futhi is required to disclose the following information to you as a consumer:
- MTN Zakhele Futhi is a public limited liability company registered in terms of the laws of the Republic of South Africa with registration number 2016/268837/06.
- MTN Zakhele Futhi’s physical address is 216 - 14th Avenue, Fairland, Roodepoort, 2195, Republic of South Africa, but it will receive legal service of documents at the addresses for service set out in 13.1.
- You may contact MTN Zakhele Futhi as indicated on this website.
These terms will apply to the maximum extent permitted by law.
