1.1. For the purpose of this Agreement, the following terms shall have the meanings set forth below:
(a) "Agreement" means this Agreement, including all the annexures and addendums as the circumstances may provide including any amendments as amended or reinstated from time to time
(b) “Applicable Laws” shall mean the applicable South African Laws;
(c) “Business Days” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
(d) “Commencement Date” means the date on which a Consumer registers for IQOS On and receives his/her IQOS Device;
(e) “Consumer” means a smoker or IQOS user, aged eighteen (18) or older;
(f) “Merchant” shall mean the Merchant from whom the Product(s) are made available for Subscription for the purpose of the Agreement;
(g) “The Parties” shall mean the Company, the Vendor, the Subscriber, and the Merchant whom have entered into this Agreement, and “Party” shall have a corresponding meaning and refer to any one of the Parties as the circumstances may provide;
(h) “Payment” shall mean the payment of the monthly Subscription Fee;
(i) “Product(s)” shall mean the product(s) as described in the Product Description of this Agreement;
(j) “Signature Date” shall mean the date of signature or electronic acceptance of this Agreement by the Subscriber;
(k) “Subscriber” shall mean the Consumer who duly enters into this Agreement with the Vendor;
(l) “Subscription” shall mean the subscription entered into in respect of the Product(s);
(m) “Subscription Fee” shall mean the monthly amount payable by the Subscriber to the Vendor, enabling the Subscriber to utilise the Product(s), and includes any other fees and/or payments associated with the Product(s);
(n) “Subscription Period” means the duration of IQOS On, from the Commencement Date to the date ending 12 months thereafter;
(o) “Subscriber Portal” means the portal which can be accessed by a Subscriber at http://iqos.loanzie.co.za;
(p) “Termination Date” shall mean the date on which this Agreement is terminated or when the Period of Subscription has expired;
(q) “Vendor” shall mean Loanzie (Pty) Ltd for the Period of Subscription;
(r) “ZAR” means South African Rands.
1.2 Unless the context clearly indicates a contrary intention, any words referring to:
(a) Any reference to one gender includes the other gender and vice a versa;
(b) The singular includes the plural and vice a versa;
(c) Any words which have not been specifically defined in this Agreement but have obtained a general and commonly-understood meaning and context in the industry will be interpreted as having that meaning and context;
(d) The headings in this Agreement are used for the sake of convenience only and shall not govern the interpretation clause to which they relate.
2. Purpose and Application
2.1 The purpose of this Agreement is to set forth the terms and conditions that apply to your subscription to the IQOS On Subscription Program (“IQOS On”), as provided to you by Philip Morris South Africa (Pty) Ltd (“the Company”) and Loanzie (Pty) Ltd (“the Vendor”) (together, the “Service Providers”). You should read these terms and Conditions carefully as they affect your legal rights and govern your relationship with the Service Providers.
2.2 The Subscriber agrees that by subscribing to-, and/or using the services provided by the Service Providers for access to IQOS On by the Subscriber, that the Subscriber has read and understood and is further bound by the terms and conditions set out in this Agreement.
2.3 The Vendor provides services to the Subscriber for the access to Product(s) that are made available from a Merchant, as contained in this Agreement and subject to the terms and conditions of this Agreement.
2.4 The Company provides services to the Subscriber for all other IQOS On benefits, as contained in this Agreement and subject to the terms and conditions of this Agreement.
2.5 A Subscriber is only eligible for membership in IQOS On if (i) you are 18 years or older; (ii) you are a smoker or IQOS user; (iii) you have the capacity to enter into IQOS On; (iv) the information provided to the Service Providers at the time of Subscription is true and accurate; and (v) you qualify for the Subscription according to the bureau-risk criteria as defined by the Service Providers, and which may change from time to time.
2.6. Only the Subscriber themselves may take out and/or join IQOS On.
2.7. A Subscriber may only take out a maximum of 3 IQOS devices on IQOS On at any one time.
2.8. Your membership in IQOS On is at the Service Providers’ discretion and the Service Providers may refuse your application, or terminate your right to participate in IQOS On for any reason including if you breach the terms and conditions of this Agreement.
2.9. You expressly hereby consent and permit the Vendor to carry out general and specific bureau reference enquiries related to you. In addition, you expressly give the Vendor permission to check the correctness of any of the information supplied by you when subscribing to IQOS On.
3. Subscription, Fees and Duration
3.1. This Agreement will commence on the Commencement Date and, subject to the terms and conditions hereof, continue for the Subscription Period;
3.2. Upon the Commencement Date and payment of the first monthly instalment, the Subscriber shall become the owner of the Product(s);
3.3. The Vendor hereby sells the Product(s) to the Subscriber, who will pay a monthly Subscription Fee by means of Debit Order and the first Debit Order payment instruction will be initiated in the month following the commencement date, for access to- and use of- the Product(s) for the duration of the Subscription Period as follows:
a) The Subscription Fee shall be due and payable to the Vendor by means of a recurring Debit Order on the Subscriber’s bank account;
b) The Debit Order will recur on a date as selected to be suitable by the Subscriber;
c) Payment will only be deemed to be successful if the debit order is not returned as unsuccessful after 45 working days;
d) If the Subscriber changes his/her bank account, the Subscriber agrees to sign a new Debit Order mandate for the new bank account, for the outstanding balance of this Agreement, considered to be the balance remaining after successful payment(s) received;
e) The Subscription Fee will bear Value Added Tax at the applicable rate in South Africa from time to time;
3.4. The Subscriber acknowledges that he/she is not entitled to withhold any payment whatsoever due and payable to the Vendor;
3.5. The Subscriber acknowledges that he/she is not permitted to apply, set off to, or demand any discount, rebate, or reduction in respect of any Subscription Fees owed to the Vendor;
3.6. The Vendor will not generate invoices to the Subscriber prior to the Subscription Fee being debited from the Subscriber’s bank account.
4. IQOS On Services
4.1. IQOS On includes the following:
a) IQOS devices to be in the color of the Subscriber’s choice.
b) IQOS Care Plus, including replacement or repair of your IQOS device within the Subscription Period in the unlikely event of the IQOS device malfunctioning, subject to the conditions contemplated in clause 4.2 below and the further terms and conditions of IQOS Care Plus.
c) Option of an early upgrade after ten (10) months in the event of re-subscribing to IQOS On.
d) Invitation to join IQOS Friends program upon registration. Further terms and conditions apply to the IQOS Friends program.
4.2. IQOS devices obtained through IQOS On must be registered under IQOS On in the Subscribers name in order to qualify for replacement or repair during the Subscription Period, and the determination whether to replace or repair will be in the discretion of the Company. Replacement or repair will only be available in cases where the functionality of the IQOS device is impaired, that means, if it does not do what it is designed to do and will not be available in cases of normal wear and tear that does not affect its functionality.
4.3. Subscribers shall not cede, assign or delegate their rights and/or obligations hereunder to any other person.
5. Inspection and Delivery
5.1. Upon receipt of the IQOS devices in terms of IQOS On (including IQOS Devices supplied as a result of any replacements in terms of IQOS On), the Subscriber shall check the quantity and condition thereof without delay. If such inspection reveals any damaged or missing IQOS parts, they can be exchanged for the same types of products only to the extent that immediate notice thereof is given to the Company, and upon presentation of the relevant receipt.
5.2. Ownership in the IQOS device received in terms of IQOS On will pass to the Subscriber on delivery thereof to the Subscriber, including without limitation the risk of loss, theft, destruction or damage.
6. Breach and Termination
6.1. The Service Providers may suspend, interrupt, change, or end this Agreement or any part thereof at any time for any reason in the Service Providers’ discretion, while applying reasonable efforts to provide advanced notice to the Subscriber.
6.2. This Agreement may be terminated by the Subscriber in accordance with the Consumer Protection Act by providing 20 (Twenty) business days’ notice in writing to the Service Providers, such termination will be subject to the following cancellation conditions:
a) PAYMENT OF A REASONABLE CANCELLATION FEE, WHICH AMOUNT SHALL BE THE BALANCE OF THE RETAIL PRICE OF THE IQOS DEVICE(S) RECEIVED THROUGH THE PROGRAM;
b) Payment of the cancellation fee shall become immediately due and payable upon cancellation of IQOS On;
c) Upon payment of the cancellation fee, the Subscription Period will conclude.
6.3. This Agreement may be terminated by the Service Providers if (i) the registration details originally provided by the Subscriber are determined to be incorrect, falsified, and/or untrue at any stage during the Agreement, (ii) if any Subscription Fee is not paid by the Subscriber on the due date thereof; (iii) the Subscriber breaches any of his/her representations, warranties or obligations hereunder and fails to cure the breach within fourteen (14) days from written request therefor; and/or (iv) the Subscriber materially interferes with normal operation of the Company or provision of IQOS On deliberately or repeatedly.
6.4. Termination of the Subscriber’s Subscription either by the Service Providers or the Subscriber will not discharge the Subscriber from liability for payment in respect of any outstanding Subscription Fees due on a monthly basis or any other basis in terms of this Agreement.
6.5. In the event that the Subscriber breaches any payment in terms of the Agreement and/or fails to make payment of any amount due to the Vendor, the Vendor may at its sole discretion:
a) Cancel the Agreement with immediate effect with or without a claim for damages; or
b) Take steps that may be necessary to recover any outstanding amount(s), including (without limitation) the use of debt collection procedures.
6.6. The Subscriber will be liable for Attorney and own client costs, including tracing and/or collecting and/or any additional expenditure with regard to any efforts by the Vendor to collect unpaid amounts from the Subscriber.
6.7. If it is impossible to provide or implement IQOS On due to enactment or amendment of any applicable laws, administrative or judicial measures by appropriate government agencies or courts, the Service Providers may amend, or terminate this Agreement by giving written notice thereof to Subscribers.
7. Obligations and/or Undertakings of Subscriber
7.1. In case of any change to any and all information provided to the Service Providers by the Subscriber at the time of subscription, the Subscriber shall immediately notify the Service Providers of such changes via the Subscription Portal.
7.2. When subscribing to and using IQOS On, Subscribers shall comply with all applicable laws, terms and conditions of this Agreement, detailed guidelines on use of an IQOS Device as provided by the Company and such matters as notified by the Company to Subscribers in connection with use of IQOS On. Subscribers shall not engage in any act harming the reputation of the Company or any other person or disrupting operation of IQOS On or performance of other duties.
7.3. Subscribers shall be responsible for managing their personal information, usernames and passwords provided and shall not allow any other person to use their information, usernames and passwords. Subscribers shall be liable for any consequences arising from use of IQOS On by any other person based on use of their personal information in violation of the foregoing.
7.4. Subscribers shall not intentionally cause a failure of any IQOS Device.
7.5. The Subscriber unconditionally absolves and indemnifies the Service Providers from and against any loss, damage, costs or expenses which either the Service Providers or the Subscriber may sustain or incur, either directly or indirectly as a result of the Service Providers relying on and using the Personal Information supplied by the Subscriber.
8. Obligations and/or Undertakings of the Service Providers
8.1. The Service Providers will comply with all applicable laws, ordinances, decrees, rules and regulations and service standards relating in any manner to the performance by the Service Providers of the obligations in terms of this Agreement;
8.2. The Service Providers will keep and maintain all records and documents as the Subscriber may reasonably require the Service Providers to keep in the performance of the Subscription in terms of this Agreement;
8.3. The Service Providers may, without notice, cede and assign any or all of its rights and/or obligations under this Agreement either absolutely or as security to any third party and on any such cession and/or delegation taking place the Subscriber shall make all Payments to such cessionary if so required;
9. Program Suspension and Resumption
9.1. In any of the following cases, the Company may temporarily limit or suspend all or a part of IQOS On:
a) limitation or suspension of IQOS On is unavoidable for such reasons as equipment inspection and repair intended to improve IQOS On;
b) power outage, equipment failure, surge in use, or any other circumstance hampers use of IQOS On;
c) the Company cannot temporarily provide services under IQOS On due to its own circumstances; or
d) there occurs a natural disaster including an act of God, national emergency including a war, strike, or any other event beyond the control of the Company (“Force Majeure Event”).
9.2. In case of the foregoing clause 9.1, the Company shall notify Subscribers of the details of IQOS On to be limited or suspended, the dates of such limitation or suspension, and other necessary information in such manner as provided in clause 11 hereof.
9.3. If a reason for suspension of IQOS On provided in the foregoing clause 9.1 no longer exists, the Company shall resume provision of IQOS On as soon as reasonably practicable and extend the term of IQOS On for the duration of IQOS On suspension under this clause.
9.4. Either the Subscriber or the Company may terminate this Agreement by giving written notice to the other party if a Force Majeure Event continues for thirty (30) days or longer.
9.5. In the event of termination of this Agreement as contemplated in this clause 9.1 above, the Subscriber shall retain the IQOS Device(s) provided in terms of IQOS On.
10. Personal Information
10.2. The Vendor will, by virtue of concluding this Agreement, obtain and be in possession of information that identifies the Subscriber (the Subscriber’s “Personal Information”) in order to:
(a) Verify the Subscriber’s identity as well as the accuracy and completeness of the information provided to the Vendor by the Subscriber;
(b) Calculate the maximum value of Product(s) which may be made available for Subscription in terms of this Agreement;
(c) Calculate the Subscriber’s capability and propensity to pay his/her Subscription Fee each month by Debit Order for the Subscription Period;
(d) Open, administer and service this Subscription Agreement;
(e) Statistical analysis;
(f) Develop and improve the Vendor’s products; and
(g) Update the Subscriber’s records.
10.3. The Subscriber acknowledges that the Vendor will store and process the Subscriber’s Personal Information, which includes but is not limited to the Subscriber’s contact details, South African ID number, credit record, demographic, employment, and banking information.
10.4. The Subscriber must notify the Vendor as soon as possible of any changes to the Subscriber’s personal details or financial circumstances in light of the information provided by the Subscriber in this Agreement. Failure to do so will result in a breach of this Agreement, and the Vendor may terminate this Agreement in terms of clause 6.3.
10.5. The Subscriber agrees that any notices, statements, and/or amendments in relation to this Agreement should be delivered by email to the email address provided by the Subscriber in terms of this Agreement, and that email address shall be considered to be correct, unless the Subscriber informs the Vendor in writing of such a change in circumstance, via subscriber portal
11.1. The Company shall give notices related to IQOS On to the email addresses or telephone numbers provided by Consumers.
11.2. In relation to IQOS On, Subscribers may give notice to the Company at the addresses below: Address: 3 Bridgeway Road, Bridgeways Precinct, Century City Email: firstname.lastname@example.org Telephone: 0800 043 387 In relation to IQOS On payment queries, Subscribers may give notice to the Vendor at the addresses below: Email: email@example.com Telephone: 010 594 5332
11.3. For the purpose of this Agreement, “written notice” includes email notices, which shall be deemed to have been received when completion of delivery is confirmed on a sender’s system.
12. Effect and Modification of the Agreement
12.1. This Agreement shall apply for the Subscription Period, provided that some provisions of the Agreement may survive termination of the Agreement.
12.2. This Agreement can be accessed by the Subscriber at any time in the Subscriber Portal.
12.3. To the fullest extent permitted by the law, the Service Providers may change this Agreement in their sole discretion. If the Service Providers wish to change the Agreement, it shall notify Subscribers by email of such change and the details thereof at least seven (7) days prior to the effective date of the modified Agreement; provided that if the Service Providers wish to change the Agreement to the disadvantage of Subscribers, it shall notify the Subscribers of such change and details thereof at least thirty (30) days prior to the effective date of the modified Agreement.
12.4. Subscribers may refuse to give consent to any unfavorable change in the Agreement. In such case, the Agreement prior to such change shall apply; provided that Subscribers shall be deemed to have given consent to the modified Agreement if they fail to explicitly express their intent not to do so by the effective date of the modified Agreement.
13. Dispute Resolution
Any dispute over interpretation hereof shall be resolved by agreement between Consumers and the Company. If they fail to reach an agreement, applicable laws shall apply.
14. Applicable Law and Jurisdiction
This Agreement shall be governed by the laws of the Republic of South Africa and any dispute arising in connection herewith shall be subject to the jurisdiction of the Magistrates Court having sufficient jurisdiction.
15.1. The terms and conditions contained herein constitute the full and complete Agreement between the Subscriber and the Service Providers in respect of the granting of the Subscription and there are no additional implied terms or conditions.
15.2. In the event of any one of the provisions of this Subscription Agreement being unenforceable, then such provisions shall be severed from the remaining provisions of this Subscription Agreement which shall in no way be affected and shall remain in full force and effect.