END USER/CUSTOMER SERVICES AGREEMENT
TERMS & CONDITIONS OF USE BY CUSTOMER
This Services Agreement (“Agreement”) governs the access or use by you, an individual, of all products, applications, websites, content, and goods and services (the “PWP Products and Services”) made available by Pearl Waterless Products SA (Pty) Ltd (Registration Number: 2017/112687/07), having its registered offices at 23A CORA STREET, MODEL PARK, WITBANK, MPUMALANGA, 1036, SOUTH AFRICA
1.2. Your access and use of the PWP Products and Services constitutes your agreement to be bound by this Agreement, which establishes a contractual relationship between you and PWP.
1.3. If you do not agree to this Agreement, you may not access or use the PWP Products and Services.
1.4. This Agreement expressly supersedes prior agreements or arrangements with you.
1.5. PWP may immediately terminate this Agreement or any PWP Products and Services with respect to you, or generally cease offering or deny access to the PWP Products and Services or any portion thereof, at any time for any reason and in PWP’s sole discretion.
1.6. Supplemental terms may apply to certain PWP Products and Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable PWP Products and Services.
1.7. Supplemental terms are in addition to, and shall be deemed a part of, this Agreement for the purposes of the applicable PWP Products and Services.
1.8. Supplemental terms shall prevail over this Agreement in the event of a conflict with respect to the applicable PWP Products and Services.
1.9. PWP may amend this Agreement from time-to-time and in its sole discretion.
1.10. Amendments will be effective upon PWP’s posting of such updated Agreement or supplemental terms or policies at the PWP website www.pearlsa.co.za.
1.11. Your continued access or use of the PWP Products and Services after such posting constitutes your consent to be bound by the Agreement, as amended.
1.12. PWP’s collection and use of personal information in connection with the PWP Products and Services is as provided in PWP’s Protection of Personal Information Policy (“POPI Policy”) which is located at our the PWP offices or which can be provided to you upon your written request being submitted to PWP at Info@pearlsa.co.za.
1.13. You hereby specifically consent to PWP’s POPI Policy and PWP using your personal information and/or special personal information as set out in the said POPI Policy or the POPI Act for all purposes in terms of this Agreement and furthermore, for PWP to provide such personal information or special personal information to a claims processor or an insurer (including your contact information) if there is a complaint, dispute or conflict, which may include an act involving you and a Third Party Provider (including a vehicle cleaning network company cleaner) and such information or data is necessary to resolve the complaint, dispute or conflict.
2. THE PWP PRODUCTS AND SERVICES
2.1. The PWP Products and Services comprise and are defined as both goods and services including:
2.1.1. A technology platform that enables users of PWP’s mobile applications or websites, provided as part of the Services (each, an “Application”), to arrange and schedule vehicle cleaning services with independent third party providers of such services, including independent third party vehicle cleaning providers under agreement with PWP or certain of PWP’s affiliates (“Third Party Providers”);
2.1.2. Certain specific cleaning products used by Third Party Providers of such services,
(jointly “the PWP Products and Services”).
2.2. Unless otherwise agreed by PWP in a separate written agreement with you, the PWP Products and Services are made available solely for your personal, non-commercial use.
2.3. YOU ACKNOWLEDGE THAT PWP DOES NOT PROVIDE VEHICLE CLEANING SERVICES NOR DOES PWP FUNCTION AS A VEHICLE CLEANER AND THAT ALL SUCH VEHICLE CLEANING SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY PROVIDERS WHO ARE NOT EMPLOYED BY PWP OR ANY OF ITS AFFILIATES.
3.1. Subject to your compliance with this Agreement, PWP grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license (which incorporates the End User License Agreement marked as annexure “D” and which is to be read as if specifically included herein and agreed upon by you) to amongst others:
3.1.1. Access and use the PWP Applications on your personal device solely in connection with your use of the PWP Products and Services; and
3.1.2. Access and use any content, information and related materials that may be made available through the PWP Products and Services, in each case solely for your personal, non-commercial use.
3.2. Any rights not expressly granted herein are reserved by PWP and PWP’s licensors.
4.1. You agree that you will not:
4.1.1. Remove any copyright, trademark or other proprietary notices from any portion of the PWP Products and Services;
4.1.2. Reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the PWP Products and Services except as expressly permitted by PWP;
4.1.3. Decompile, reverse engineer or disassemble the PWP Products and Services except as may be permitted by applicable law;
4.1.4. Link to, mirror or frame any portion of the PWP Products and Services;
4.1.5. Cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the PWP Products and Services or unduly burdening or hindering the operation and/or functionality of any aspect of the PWP Products and Services; or
4.1.6. Attempt to gain unauthorised access to or impair any aspect of the PWP Products and Services or its related systems or networks.
5. PROVISION OF THE PWP PRODUCTS AND SERVICES
5.1. You acknowledge that portions of the PWP Products and Services may be made available under PWP’s various brands or request options associated with vehicle cleaning, including the vehicle cleaning request brands currently referred to as “PEARL WATERLESS”, “CURBWASH” “PEARL WATERLESS PRODUCTS” and “PWP”.
5.2. You also acknowledge that the PWP Products and Services may be made available under such brands or request options by or in connection with:
5.2.1. Certain of PWP’s subsidiaries and affiliates; or
5.2.2. Independent Third Party Providers, including vehicle cleaning network company cleaners.
6. THIRD PARTY SERVICES AND CONTENT
6.1. The PWP Products and Services may be made available or accessed in connection with third party services and content (including advertising) that PWP does not control.
6.2.1. PWP does not endorse such Third Party Provider’s services and content and in no event shall PWP be responsible or liable for any products or services of such Third Party Providers.
6.2.2. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the PWP Products and Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the PWP Products and Services in any manner. Your access to the PWP Products and Services using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service.
7.1. The PWP Products and Services and all rights therein are and shall remain PWP’s property or the property of PWP’s licensors.
7.2. Neither this Agreement nor your use of the PWP Products and Services convey or grant to you any rights:
7.2.1. In or related to the PWP Products and Services except for the limited license granted above; or
7.2.2. To use or reference in any manner PWP’s company names, logos, product and service names, trademarks or services marks or those of PWP’s licensors.
8. YOUR USE OF THE PWP PRODUCTS AND SERVICES
8.1. User Accounts:
8.1.1. In order to use most aspects of the PWP Products and Services, you must register for and maintain an active personal user PWP Products and Services account (“Account”).
8.1.2. You must be at least 18 years of age, being the age of legal majority, to obtain an Account.
8.1.3. Account registration requires you to submit to PWP certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner)(“Account Information”).
8.1.4. You agree to maintain accurate, complete, and up-to-date Account Information in your Account. Your failure to maintain accurate, complete, and up-to-date Account Information, including having an invalid or expired payment method on file, may result in your inability to access and use the PWP Products and Services or PWP’s termination of this Agreement with you.
8.1.5. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.
8.1.6. Unless otherwise permitted by PWP in writing, you may only possess one Account.
8.2. User Requirements and Conduct:
8.2.1. The PWP Products and Services are not available for use by persons under the age of 18.
8.2.2. You may not authorise third parties to use your Account, and you may not allow persons under the age of 18 to receive the PWP Products and Services from Third Party Providers unless they are assisted and accompanied by you.
8.2.3. You may not assign or otherwise transfer your Account to any other person or entity.
8.2.4. You agree to comply with all applicable laws of South Africa when using the PWP Products and Services, and you may only use the PWP Products and Services for lawful purposes (e.g., no cleaning of unlawful or hazardous materials).
8.2.5. You will not, in your use of the PWP Products and Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party.
8.2.6. In certain instances you may be asked to provide proof of identity to access or use the PWP Products and Services, and you agree that you may be denied access to or use of the PWP Products and Services if you refuse to provide proof of identity.
8.3. Text Messaging:
8.3.1. By creating an Account, you agree that the PWP Products and Services may send you text (SMS) messages or messages using such similar other communication or mobile messaging methods which are available for may become available for use by you and PWP as part of the normal business operation of your use of the PWP Products and Services.
8.3.2. You may opt-out of receiving text (SMS) messages from PWP at any time by following the directions found at the PWP website or email PWP at Info@pearlsa.co.za.
8.3.3. You acknowledge that opting out of receiving text (SMS) messages or other message services as set out in clause 16.3.1 may impact your proper use of the PWP Products and Services.
8.4. Promotional Codes:
8.4.1. PWP may, in PWP’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the PWP Products and Services and/or a Third Party Provider’s services, subject to any additional terms that PWP establishes on a per promotional code basis (“Promo Codes”).
8.4.2. You agree that Promo Codes:
126.96.36.199. Must be used for the intended audience and purpose, and in a lawful manner;
188.8.131.52. May not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by PWP;
184.108.40.206. May be disabled by PWP at any time for any reason without liability to PWP;
220.127.116.11. May only be used pursuant to the specific terms that PWP establishes for such Promo Code;
18.104.22.168. Are not valid for cash; and
22.214.171.124. May expire prior to your use.
8.4.3. PWP reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that PWP determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
8.5. User Provided Content:
8.5.1. PWP may, in PWP’s sole discretion, permit you from time-to-time to submit, upload, publish or otherwise make available to PWP through the PWP Products and Services textual, audio, and/or visual content and information, including commentary and feedback related to the PWP Products and Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”).
8.5.2. Any User Content provided by you remains your property.
8.5.3. However, by providing User Content to PWP, you grant PWP a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the PWP Products and Services and PWP’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
8.5.4. You represent and warrant that:
126.96.36.199. You either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant PWP the license to the User Content as set forth above; and
188.8.131.52. Neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor PWP’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8.5.5. You agree to not provide User Content that is defamatory, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by PWP in its sole discretion, whether or not such material may be protected by law.
8.5.6. PWP may, but shall not be obligated to, review, monitor, or remove User Content, at PWP’s sole discretion and at any time and for any reason, without notice to you.
8.6. Network Access and Devices:
8.6.1. You are responsible for obtaining the data network access necessary to use the PWP Products and Services.
8.6.2. Your mobile network’s data and messaging rates and fees may apply if you access or use the PWP Products and Services from a wireless-enabled device and you shall be responsible for such rates and fees.
8.6.3. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the PWP Products and Services and Applications and any updates thereto.
8.6.4. PWP does not guarantee that the PWP Products and Services, or any portion thereof, will function on any particular hardware or devices. In addition, the PWP Products and Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
8.6.5. You agree that PWP shall not be liable at all in terms of this Agreement for any failure by you to receive the PWP Products and Services for any reason whatsoever and due to whatsoever cause.
8.7.1. You understand that use of the PWP Products and Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”).
8.7.2. After you have received services or goods obtained through your use of the PWP Products and Services, PWP will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent.
8.7.3. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider.
8.7.4. Charges will be inclusive of applicable taxes where required by law.
8.7.5. Charges paid by you are final and non-refundable, unless otherwise determined by PWP and in PWP’s sole discretion.
8.7.6. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods.
8.7.7. PWP will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
8.7.8. All Charges are due immediately and payment will be facilitated by PWP using the preferred payment method designated in your Account, after which PWP will send you a receipt by email.
8.7.9. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that PWP may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
8.7.10. As between you and PWP, PWP reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the PWP Products and Services at any time in PWP’s sole discretion.
8.7.11. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. PWP will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof.
8.7.12. PWP may from time-to-time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the PWP Products and Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the PWP Products and Services or the Charges applied to you.
8.7.13. You may elect to cancel your request for the PWP Products and Services from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.
8.7.14. This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. PWP does not designate any portion of your payment as a tip or gratuity to the Third Party Provider.
8.7.15. Any representation by PWP (on PWP’s website, in the Application, or in PWP’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that PWP provides any additional amounts, beyond those described above, to the Third Party Provider.
8.7.16. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
8.7.17. After you have received services or goods obtained through the PWP Products and Service, you may be given the opportunity to rate your experience and leave additional feedback about your Third Party Provider.
9. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
9.1.1. The PWP Products and Services are provided “as is” and “as available.”
9.1.2. PWP disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of fitness for a particular purpose and non-infringement.
9.1.3. In addition, PWP makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the services or any services or goods requested through the use of the services, or that the services will be uninterrupted or error-free.
9.1.4. PWP does not guarantee the quality, suitability, safety or ability of Third Party Providers.
9.1.5. You agree that the entire risk arising out of your use of the PWP Products and Services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
9.2. Limitation of Liability:
9.2.1. PWP shall not be liable for indirect, incidental, special, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the services, even if PWP has been advised of the possibility of such damages.
9.2.2. PWP shall not be liable for any damages, liability or losses arising out of:
9.2.3. Your use of or reliance on the services or your inability to access or use the services; or
9.2.4. Any transaction or relationship between you and any Third Party Provider, even if PWP has been advised of the possibility of such damages.
9.2.5. PWP shall not be liable for delay or failure in performance resulting from causes beyond PWP’s reasonable control.
9.2.6. PWP’s Poducts and may be used by you to request and schedule services with Third Party Providers, but you agree that pwp has no responsibility or liability to you related to any goods or services provided to you by Third Party Providers other than as expressly set forth in these terms.
9.2.7. The limitations and disclaimer in this clause and agreement do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
9.3.1. You agree to indemnify and hold PWP and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with:
184.108.40.206. Your use of the PWP Products and Services or services or goods obtained through your use of the PWP Products and Services;
220.127.116.11. Your breach or violation of any of this Agreement;
18.104.22.168. PWP’s use of your User Content; or
22.214.171.124. Your violation of the rights of any third party, including Third Party Providers.
10. DISPUTE RESOLUTION
10.1. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the PWP Products and Services or this Agreement, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to mediation proceedings.
10.2. If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted to the opposite party in writing, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Association of Arbitrators (Southern Africa) in terms of the full Rules of Arbitration (“Arbitration Rules”).
10.3. The Dispute shall be resolved by one (1) arbitrator to be appointed by the Association of Arbitrators South Africa.
10.4. The place of both mediation and arbitration shall be the greater Johannesburg Area.
10.5. The language of the mediation and/or arbitration shall be English, unless you do not spe¬ak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language, with the necessary interpreter/s being present.
10.6. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the Association of Arbitrators (Southern Africa), correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless:
10.6.1. The disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and
10.6.2. The third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
10.7. Either Party to this Agreement may demand that a dispute be referred to mediation or arbitration by giving written notice to that effect to the other Party.
10.8. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
10.9. The Parties irrevocably agree that the decision in arbitration proceedings:
10.9.1. Shall be final and binding upon the Parties;
10.9.2. Shall be carried into effect; and
10.9.3. May be made an order of any court of competent jurisdiction.
10.10. This clause is severable from the rest of this Agreement and therefore shall remain effective between the Parties even if this Agreement is terminated.
10.11. To the extent that any dispute referred to determination by arbitration in terms of this clause and which dispute involves the withholding of payment of any amount otherwise due in terms of this Agreement by either Party, where such amount is subsequently found to be properly due to the other Party, the withholding Party shall pay the disputed amount in full within 7 (seven) Business Days following a determination that it was properly due together with Interest thereon. Either Party, in withholding any payment, may elect at its sole discretion, to deposit the amount of the withheld payment into an attorneys trust account (the interest to be for the benefit of the successful party) and, if any part of the withheld amount is found properly due to the other Party any capital award plus interest accruing in trust in the same ratio as the capital award, shall be paid to that Party.
11. GENERAL PROVISIONS
11.1. Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of South Africa.
11.2. In this Agreement, the words “including” and “include” mean “including, but not limited to”.
11.3. You may not assign or transfer this Agreement in whole or in part without PWP’s prior written approval.
11.4. You give your approval to PWP for it to assign or transfer this Agreement in whole or in part, including to:
11.4.1. A subsidiary or affiliate;
11.4.2. An acquirer of PWP’s equity, business or assets; or
11.4.3. A successor by merger.
11.5. You agree and confirm that no joint venture, partnership, employment or agency relationship exists between you, PWP or any Third Party Provider as a result of the contract between you and PWP or use of the PWP Products and Services.
11.6. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the other provisions in this Agreement shall not be affected.
11.6.1. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of this Agreement.
11.7. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior agreements or undertakings regarding such subject matter.
11.8. PWP may give notice by means of pre-paid registered mail on the PWP Products and Services, electronic mail to your email address in your Account, or by written communication sent by pre-paid registered mail to your address as set forth in your Account.
11.9. You may give notice to PWP by written communication to PWP’s address at
11.9.1. Physical Address: 23A CORA STREET, MODEL PARK, WITBANK, MPUMALANGA, 1036, SOUTH AFRICA;
11.9.2. Email: Info@pearlsa.co.za.
11.10. The rights of each Party under this Agreement:
11.10.1. may be exercised as often as necessary;
11.10.2. are cumulative and not exclusive of rights or remedies provided by law save to the extent that such rights are inconsistent with those rights as expressly set out in this Agreement; and
11.10.3. may be waived only in writing and specific to each waiver,
11.10.4. delay in exercising or non-exercise of any such right is not a waiver of that right.
11.11. The granting of any indulgence by a Party to this Agreement shall not constitute a waiver of any right by the Party granting such indulgence or prevent or adversely affect the exercise by the Party granting such indulgence of any existing or future right of the Party granting such indulgence.
11.12. Neutral construction, exclusion of the contra proferentem Rule: The Parties hereby acknowledge that this Agreement was negotiated fairly between them at arm’s length and that the final terms thereof are the product of the Parties’ negotiations and accordingly the provisions of this Agreement shall not be construed against a Party on the grounds that such Party drafted or was responsible for drafting any or the majority of the provisions.
11.13. No warranties, guarantees or representations, express or implied or tacit whether by law, contract or otherwise and whether they induced either Party to contract or not and which are not set forth in this Agreement shall be binding on the Parties; the Parties irrevocably waiving any right (common law or otherwise) which either of them may have to rely thereon.
11.14. Both Parties undertake to act with the utmost good faith at all relevant times of this Agreement and not do anything which would adversely affect the other Party.