Terms and Conditions

Date of last revision: May 2017

EMPOWER DIABETES MOBILE APPLICATION:
PATIENT INFORMED CONSENT, TERMS AND CONDITIONS AND PRIVACY POLICY (TOGETHER, THE “TERMS AND CONDITIONS”)

This is a “click-through agreement” in terms of which you agree to be bound to these Terms and Conditions by signifying your acceptance electronically.  This has the same legal effect as the signature of a contract.  Accordingly, please read all of these Terms and Conditions carefully before you signify your acceptance and before downloading the Empower Diabetes App.  If you do not agree with any of the Terms and Conditions, do not signify your acceptance or download or install the Empower Diabetes App.

PARAGRAPHS BELOW THAT APPEAR IN CAPITALISED, BOLD FONT CONTAIN IMPORTANT INFORMATION WHICH LIMIT YOUR RIGHTS AND/OR LIMIT THE LIABILITY OF MPOWER TOWARDS YOU.  PLEASE READ THESE PARAGRAPHS VERY CAREFULLY.

CLAUSE 18 SETS OUT MPOWER’S PRIVACY POLICY, WHICH INCLUDES THE INFORMED CONSENT THAT YOU GIVE MPOWER TO PROCESS AND USE YOUR PERSONAL INFORMATION, INCLUDING HEALTH RELATED INFORMATION, FOR THE PURPOSES SET OUT IN THESE TERMS AND CONDITIONS.  PLEASE READ THIS CLAUSE VERY CAREFULLY.

  1. INTERPRETATION

In these Terms and Conditions:

1.1 “Business Day” means any day other than a Saturday, Sunday or official public holiday in South Africa;

1.2 “Channel Partner” means any third party organisation which has partnered with the mPower in order to promote and advertise its products and services to Users through the Empower Diabetes App;

1.3 “Data Connection” means any interface through which data is submitted, such as a local wireless network, third generation (3G), fourth generation (4G) or fifth generation (5G) cellular network, high-speed download packet access network (HSDPA), or general packet radio service network (GPRS);

1.4 “Diabetes Educator” means a nurse contracted by the mPower, who is registered in terms of the Nursing Act 33 of 1995 and who has the necessary qualifications, training and/or experience as may be required to fulfil the duties of a diabetes educator;

1.5 “Diabetes Support Service” means the service provided through the Empower Diabetes App to the User by the mPower and, where necessary, the Diabetes Educators appointed by the mPower, for which the User pays the Monthly Fee, in terms of which the User is provided with diabetes management support and guidelines for the maintenance a healthy lifestyle in the diabetes context, based on Personal Information being provided by the User and as more fully set out in clause 5 (Diabetes Support Service);

1.6 “ECTA” means the Electronic Communications and Transactions Act 25 of 2002;

1.7 “Effective Date” means the date on which you activate your Empower Diabetes Account (after signifying your acceptance of these Terms and Conditions electronically);

1.8 “Empower Diabetes Account” means the user profile which you are required to create and maintain in order to exploit the functionality on the Empower Diabetes App and which will be used as a platform in order to provide you with the Diabetes Support Service;

1.9 “Empower Diabetes App” means the Empower Diabetes mobile application made available by mPower to the User in terms of which the Diabetes Support Service will be provided on the User’s Mobile Device through computer-implemented mechanisms, provided there is a Data Connection to the User’s Mobile Device and payment of the Monthly Fee has been made by the User;

1.10 “Initial Month” means a period of 1 (one) calendar month from the Effective Date;

1.11 “Location Information” for purposes of the Empower Diabetes App, means the location of the User which is detected if the ‘location’ functionality on the User’s Mobile Device has been activated by the User;

1.12 “Mobile Device” means a portable computing device such as a smartphone, tablet computer or the like with either an IOS or android operating system;

1.13 “Mobile Device Data” means all data on the User’s Mobile Device including, without limitation, applications (Apps) downloaded on the Mobile Device, contacts, photographs and websites accessed using the Mobile Device;

1.14 “Monthly Fee” means an amount of 00 (one hundred and ninety-nine Rand) per calendar month, which is the monthly amount you are required to pay to mPower (see clause 6(Monthly Fee) for payment terms), as consideration for the provisions of the Diabetes Support Service, subject to increase in terms of clause 6.3;

1.15 “mPower” means mPower Digital Health Proprietary Limited, a company incorporated in accordance with the laws of South Africa, with registration number 2015/037553/07, with its principal place of business located at Biopark at Innovation Hub, 1 Mark Shuttleworth Street, Lynwood Pretoria, Gauteng, 0087;

1.16 “Personal Information” means the term as defined in section 1 of the POPI Act which for purposes of creating the Empower Diabetes Account means your name; email address; city of residence; date of birth; gender; the content of your Mobile Device which you have expressly given the mPower permission to have access to (see clause 6 below); information relating to your health, including, amongst others, blood glucose levels, diet and exercise indicators, and other health-related information to be determined for purposes of the Diabetes Support Service; as well as any other information that may be reasonably required for purposes of operating and/or administering the Diabetes Support Service;

1.17 “POPI Act” means the Protection of Personal Information Act 4 of 2013;

1.18 “South Africa” means the Republic of South Africa;

1.19 “User” means any holder of a Mobile Device who has signified their acceptance of these Terms and Conditions electronically, downloaded the Empower Diabetes App and then subscribes to the Diabetes Support Service, and the term “you” (or “your”, where applicable) is used interchangeably; and

1.20 “Website” means www.empowerdiabetes.com.

  1. GRANT OF LICENCE

Subject to these Terms and Conditions, mPower grants to you the non-exclusive, non-transferable right to install and use the Empower Diabetes App solely for your personal use and benefit.  You are prohibited from exploiting the content of the Empower Diabetes App for commercial or non-personal purposes.  Any unauthorised use of the Empower Diabetes App, may result in mPower instituting legal proceedings against you.  mPower reserves the right to terminate the licence granted to you at any time in its sole and absolute discretion without prior notice (after which date you will no longer be charged the Monthly Fee).

  1. CONDITIONS OF ACCESS

3.1 Your access to, and your use of, the Empower Diabetes App and the use of the Diabetes Support Service, are always subject to these Terms and Conditions.

3.2 Without limiting the general wording of clause 1, in order to access or make use of any functionality on the Empower Diabetes App and/or to use the Diabetes Support Services, you:

3.2.1 must be over the age of 18 (eighteen) years old;

3.2.2 must create an Empower Diabetes Account as more fully set out in clause 4(Creation of Empower Diabetes Account) below;

3.2.3 agree to comply with all applicable laws and regulations governing the download, installation and/or use of the Empower Diabetes App and the use of the Diabetes Support Services;

3.2.4 acknowledge that although the Empower Diabetes App is free to download, when you download, install and access the Empower Diabetes App, your mobile network provider may, depending on the type of contract you have, charge you for accessing the Empower Diabetes App or for any usage on the Empower Diabetes App, i.e. data charges may apply. mPower will not be held liable for any such data charges. For the avoidance of doubt, you are solely liable for all charges resulting from the use of a Data Connection; and

3.2.5 acknowledge that the Diabetes Support Service offered through the Empower Diabetes App will attract a Monthly Fee, which is payable in terms of clause 6 (Monthly Fee) below.

  1. CREATION OF EMPOWER DIABETES ACCOUNT

4.1 Upon downloading the Empower Diabetes App and in order to use the Empower Diabetes App, you will be required to create an Empower Diabetes Account through a username and a password. Your username and password must be kept confidential at all times and may not be used by unauthorised third parties to access the Empower Diabetes App. mPower shall maintain records of your password and mPower will, acting reasonably, implement all necessary and adequate measures to help protect your password against unauthorised access and disclosure.

4.2 You can elect to simply import a profile of yours already in existence on another social media platform. In such circumstances, only limited information will be capable of being imported from such social media platform and you will be required to complete the remainder of the fields which are marked as mandatory on the Empower Diabetes App for purposes of creating a Empower Diabetes Account.

4.3 You are responsible for restricting access to your Mobile Device so that third parties may not access the Empower Diabetes App. You are solely responsible for all activities that occur under your access details. You are only entitled to create 1 (one) Empower Diabetes Account.

4.4 Your Empower Diabetes Account will enable you to access the Diabetes Support Service, subject to the payment of the Monthly Fee, set out in clause 6 (Monthly Fee) below.

5. DIABETES SUPPORT SERVICE

5.1 The purpose of the Diabetes Support Service, as offered through the Empower Diabetes App and subject to Users paying the Monthly Fee, is to facilitate interaction between Users with diabetes and Diabetes Educators remotely, in order to provide diabetes lifestyle/management advice to Users, when required. For these purposes, Users would be required to key in certain vital information into the Empower Diabetes App, which includes, amongst others, blood glucose levels, diet and exercise indicators, and other similar or related information, as may be required from time to time (“Personal Information”).

5.2 Users and Diabetes Educators are able to message each other via the Empower Diabetes App. Diabetes Educators will play a supportive role in relation to the management of your diabetes, including educational support, helpful reminders and the like. The Diabetes Support Service is intended to provide Users with an interactive support service aimed at the management and control of Users’ diabetes and to promote a healthy lifestyle for Users in order to manage diabetes effectively.

5.3 The Diabetes Support Services require your active engagement and participation. You should consult with your health practitioner and keep your health practitioner informed about your use of the Empower Diabetes App and the Diabetes Support Services.

5.4 NEITHER THE EMPOWER DIABETES APP NOR THE DIABETES SUPPORT SERVICE IS DESIGNED OR INTENDED FOR THE PURPOSE OF DIAGNOSIS OF ANY ILLNESS OR DISEASE AND DIABETES EDUCATORS WILL NOT DIAGNOSE ANY ILLNESS OR DISEASE OR PRESCRIBE ANY MEDICATION, AND AS SUCH, SHALL NOT BE CONSTRUED, CONSIDERED AND/OR MISTAKEN FOR:

5.4.1 A SUBSTITUTE FOR CONSULTING WITH A HEALTH PRACTITIONER; AND/OR
5.4.2 A CONSULTATION, EXAMINATION AND/OR DIAGNOSIS; AND/OR
5.4.3 THE PROVISION OF MEDICAL TREATMENT; AND/OR
5.4.4 DOES NOT BRING ABOUT A DOCTOR-PATIENT RELATIONSHIP,

AND, AS SUCH, THE EMPOWER DIABETES APP NOR THE DIABETES SUPPORT SERVICE MUST BE MISTAKEN FOR A MEDICAL PRACTICE.

5.4 UNLESS OTHERWISE CLEARLY AND SPECIFICALLY STATED, ALL INFORMATION OBTAINED THROUGH USE OF THE EMPOWER DIABETES APP AND THE DIABETES SUPPORT SERVICE IS FOR REFERENCE, INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY.

  1. MONTHLY FEE

6.1 In order to subscribe to the Diabetes Support Service through the Empower Diabetes App, you will be required to pay in advance, on a monthly basis, the non-refundable Monthly Fee to mPower, as follows:

6.1.1 Payment of Monthly Fee with credit card

6.1.1.1 On the Effective Date (the date you activate your Empower Diabetes Account) you will be required to provide mPower with valid, up-to-date and complete credit card details acceptable to mPower and any other relevant valid, up-to-date and complete contact and billing details.

6.1.1.2 If the User provides his/her credit card details to the mPower, the User hereby authorises the mPower to bill such credit card:

6.1.1.2.1 on the Effective Date for the Monthly Fee payable in respect of the Initial Month; and

6.1.1.2.2 subject to clause 11(Termination), on each subsequent month after the Initial Month for the Monthly Fees payable in respect of the subsequent months.

6.1.1.3 The authorisation granted by you in terms of clause 1.1.2 above may be withdrawn by you by way of written notice to mPower.

6.1.2 Payment by debit order

6.1.2.1 On the Effective Date (the date you activate your Empower Diabetes Account) you will be required to provide mPower with valid, up-to-date banking details, as may be required by mPower, for purposes of authorising a debit order. By providing this information, you hereby authorise mPower to debit the amount of the Monthly Fee against your bank account:

6.1.2.1.1 on the Effective Date for the Monthly Fee payable in respect of the Initial Month; and

6.1.2.1.2 subject to clause 11(Termination), on each subsequent month after the Initial Month for the Monthly Fees payable in respect of the subsequent months.

6.1.2.1.3 The nature of the information to be provided to mPower in terms of clause 1.2.1 above may be varied from time to time in accordance with changes in legislation. You hereby confirm that you will agree to provide such information to mPower, unless you choose to withdraw your authorisation in terms of clause 6.1.2.3 below.

6.1.2.1.4 The authorisation granted by you in terms of clause 1.2.1 above may be withdrawn by you by way of written notice to mPower.

6.1.3 Payment by electronic funds transfer (EFT)

6.1.3.1 On the Effective Date (the date you activate your Empower Diabetes Account), you may pay the Monthly Fee for the First Month by effecting payment via electronic funds transfer (EFT) to mPower into the following bank account nominated by the mPower:

6.1.3.1.1 Bank Name: Standard Bank;

6.1.3.1.2 Account name: mPower Digital Health Proprietary Limited;

6.1.3.1.3 Account Number: 422131121; and

6.1.3.1.4 Account Type:

6.1.3.2 When effecting payment in terms of clause 1.3.1, you must use the reference: Your First Name and Surname.

6.1.3.3 You must ensure, subject to clause 11(Termination), the payment, as described in clause 1.3.1, is effected on each subsequent month after the Initial Month for the Monthly Fees payable in respect of the subsequent months.

6.2 If mPower has not received payment within 10 (ten) Business Days after the due date, then without prejudice to any other rights and remedies available to mPower, mPower may, without liability to the User, disable the User’s Empower Diabetes Account and password, and/or the User’s access to all or part of the Diabetes Support Service and the mPower will be under no obligation to provide any or all of the Diabetes Support Service while the Monthly Fees concerned remain unpaid.

6.3 mPower shall be entitled to increase the Monthly Fee, from time to time, by updating these Terms and Conditions on the Website accordingly and by providing you with not less than 30 (thirty) days prior notice to you of such increase.

  1. UPDATES

7.1 From time to time, the mPower may automatically check the version of the Empower Diabetes App installed on your Mobile Device and, if applicable, may provide updates for the Empower Diabetes App. Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins, and new versions of the Empower Diabetes App.

7.2 By installing the Empower Diabetes App, you authorise the automatic download and installation of updates and agree to download and install updates manually, if necessary.

7.3 Your use of the Empower Diabetes App and updates will be governed by these Terms and Conditions (as amended by any terms and conditions that may be provided with the updates).

8. MODIFICATIONS TO EMPOWER DIABETES APPLICATION AND REVISIONS TO TERMS AND CONDITIONS

8.1 mPower may, from time to time, modify any term of these Terms and Conditions. Any such modifications will be effective as soon as the modified version of the Terms and Conditions appears when you log onto the Empower Diabetes App and the Terms and Conditions are updated on the Website.

8.2 Your use of the Empower Diabetes App subsequent to such modifications constitutes an acceptance of the revised Terms and Conditions. If you do not wish to accept any modification to these Terms and Conditions, please uninstall and discontinue using the Empower Diabetes App.

8.3 mPower reserves the right to temporarily disable or permanently discontinue any and all functionality of the Empower Diabetes App at any time without notice and with no liability towards you.

9. MPOWER’S PROPRIETARY RIGHTS

9.1 You hereby acknowledge that all rights, title and interest in and to the Empower Diabetes App including all content made available or to be made available in the future on the Empower Diabetes App (including without limitation, text, graphics, illustrations, video and audio clips, logos, trademarks, service marks, copyrights, domain names, code, trade names, patents, all copyrightable material (including source and object code)), button icons, images, audio clips, digital downloads, data compilations and software), and/or any other form of intellectual propertymPower Information”) are owned by or licensed to mPower or other authorised third parties (such as the Channel Partners) and are protected from unauthorised use, copying and dissemination.

9.2 The Empower Diabetes App and the mPower Information are protected by applicable intellectual property and other laws, including patent laws, copyright law, trade secret law, trademark law, unfair competition law and any and all other proprietary rights. You agree that you will not, and undertake not to permit a third party to:

9.2.1 modify, adapt, translate, prepare derivate works from, decompile, reverse engineer or disassemble the Empower Diabetes App or otherwise attempt to derive the source code of the Empower Diabetes App or any part of it;

9.2.2 capture, reproduce, perform, modify, copy, distribute, transfer, sell or license the Empower Diabetes App or any part of it;

9.2.3 transfer the Empower Diabetes App to, or use the Empower Diabetes App on, a device other than your Mobile Device;

9.2.4 take any action to circumvent, compromise or defeat any security measures implemented in the Empower Diabetes App;

9.2.5 use the Empower Diabetes App to access, copy, transfer, retransmit or transcode the mPower Information;

9.2.6 interfere with the normal processes or use of the Empower Diabetes App by, amongst other things, attempting to access the administration areas of the Empower Diabetes App; and

9.2.7 remove, obscure or alter the mPower’s (or any third party’s) copyright notices, trademarks, or other proprietary rights, notices affixed to or contained within or accessed through the Empower Diabetes App.

9.3 You understand that if you breach the terms of this proprietary rights clause, mPower may have the right to claim damages from you, which may include the right to claim special, incidental, consequential or indirect damages. mPower also reserves the right to recover all associated legal costs on a scale as between attorney and own client.

9.4 mPower and its licensors make no representations or warranties regarding the accuracy or completeness of the mPower Information.

9.5 mPower, its logo, and the name of the products produced, marketed, sold and distributed by mPower, are trademarks and/or service marks of the mPower or its affiliates.  All other trademarks, service marks, and logos used on the Empower Diabetes App are the trademarks, service marks or logos of their respective owners, such as the Channel Partners.

10. LINKING TO THIRD PARTY WEBSITES

10.1 The Empower Diabetes App may contain certain images and links to other third party websites (such as those of its Channel Partners) with information, content or material produced by other parties. These linked third party websites are not under the control of mPower and mPower is not responsible for the information, content or material on any linked website, including, any link contained in a linked website, or any changes or updates to a linked website.

10.2 mPower is permitting these links to be made available to you by the Channel Partners only as a convenience, and you agree that the inclusion of links does not imply an endorsement by mPower of the linked website, their business or security practices, or any association with its operators.

10.3 From time to time, mPower may employ the services of third parties to assist with the management of certain services and aspects of the Empower Diabetes App. We apply every effort to ensure that our sub-contractors comply with the Privacy Policy and generally accepted security standards and they will be accountable for any non-compliance. Should you have any queries arising from the aforesaid third party services, you will be required to contact them directly.

11. TERMINATION

11.1 You may terminate these Terms and Conditions at any time by permanently deleting the Empower Diabetes App in its entirety from your Mobile Device, whereupon (and without notice from the mPower) any rights granted to you in terms of these Terms and Conditions will automatically terminate. If you fail to comply with any provision of these Terms and Conditions any rights granted to you will automatically terminate.  In the event of such termination, you must immediately delete the Empower Diabetes App from the Mobile Device.

11.2 mPower may, in its sole discretion, and at any time, with or without notice, terminate your password and access to the Empower Diabetes App, for any reason or no reason at all.

11.3 Upon termination of these Terms and Conditions you will not be entitled to any further Diabetes Support Service. Any Monthly Fee paid in terms of clause 6 (Monthly Fee) above, in respect of the calendar month during which the Terms and Conditions are terminated, will be refunded to you on a pro rata basis within 30 (thirty) Business Days after termination.  Such refund will be reimbursed to your bank account via the payment method chosen in terms of clause 1 above, or another method as agreed to between you and mPower.  In order to receive the refund (where relevant), you may be required to furnish any further banking/account information, as may be required by mPower to facilitate such refund.

12. DISCLAIMER

12.1 The Empower Diabetes App is provided on an “as is”, “as available” and “with all faults” basis and without any warranty of any kind to the extent permitted by law, either express or implied, including without limitation, warranties of title, implied warranties of merchantability, non-infringement, or fitness for a particular purpose or those arising by statute or otherwise in law or from a course of dealing or usage of trade. Without limiting the generality of the above, mPower does not provide any warranty of any nature as to the products and services being advertised by the Channel Partners in the Empower Diabetes App is merely a platform utilised by the Channel Partners in order to disseminate content.

12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, MPOWER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

12.3 YOUR USE OF THE EMPOWER DIABETES APP AND DIABETES SUPPORT SERVICE IS AT YOUR OWN RISK, AND THE INFORMATION/GUIDANCE PROVIDED BY THE EMPOWER DIABETES APP AND DIABETES SUPPORT SERVICE IS NOT INTENDED TO REPLACE MEDICAL ADVICE OFFERED BY HEALTH PRACTITIONERS (AS DEFINED IN THE HEALTH PROFESSIONS ACT, 56 OF 1974), BUT SERVES AS REFERENCE, INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. YOU SHOULD, WHERE APPROPRIATE, REVIEW THE AFORESAID INFORMATION/GUIDANCE CAREFULLY WITH YOUR HEALTH PRACTITIONER.  FURTHERMORE, ANY ACTIONS YOU TAKE BASED ON INFORMATION PROVIDED TO YOU BY MPOWER AND IN RELATION TO DIABETES SUPPORT SERVICES, ARE ENTIRELY AT YOUR OWN RISK.  IT IS YOUR OBLIGATION TO DISCUSS ALL UNCERTAINTIES AND QUESTIONS THAT YOU MAY HAVE WITH YOUR HEALTH PRACTITIONER.  THE INFORMATION PROVIDED TO YOU BY MPOWER IN RELATION TO THE DIABETES SUPPORT SERVICE SHOULD NOT BE TAKEN IN ISOLATION.

12.4 NOTWITHSTANDING THE HIGH LEVEL OF SKILLS, TRAINING, PROFESSIONAL QUALIFICATIONS AND EXPERTISE OF THE DIABETES EDUCATORS, THE DIABETES SUPPORT SERVICE IS NOT INTENDED NOR SUITED TO BE A REPLACEMENT OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT RELATIVE TO A SPECIFIC MEDICAL QUESTION OR CONDITION.

12.5 YOU UNDERSTAND THAT, DESPITE YOUR BEST EFFORTS AND/OR THE BEST EFFORTS OF MPOWER AND DIABETES EDUCATORS, YOUR RESULTS WILL VARY FOR A VARIETY OF REASONS AND MPOWER CANNOT GUARANTEE THAT YOU WILL ACHIEVE YOUR HEALTH GOALS.

12.6 mPower does not guarantee that:

12.6.1 the Empower Diabetes App; or

12.6.2 the information, content, tools or materials included on the Empower Diabetes App; or

12.6.3 the mPower servers; or

12.6.4 that any electronic communications sent by the mPower,

are free from viruses or other harmful components.

12.7 mPower will, on an on-going basis, try to optimise your experience with the Empower Diabetes App, but it will not be obliged to provide you with any maintenance or support services in connection with the Empower Diabetes App.

12.8 mPower makes no warranty:

12.8.1 that the Empower Diabetes App will meet your requirements;

12.8.2. that the Empower Diabetes App will be error free;

12.8.3 regarding the security, reliability, timeliness or performance of the Empower Diabetes App; and

12.8.4 that any errors in the Empower Diabetes App will be corrected.

12.9 Any content that you obtain or download through the Empower Diabetes App is obtained at your own discretion and risk.

12.10 You will be solely responsible for any damage to your Mobile Device (or any other device) or any loss of data that may result from downloading content or material through the Empower Diabetes App.

12.11 No information obtained by you through the Empower Diabetes App will create any warranty not expressly stated in these Terms and Conditions.

12.12 Users who, in the mPower’s sole determination, act unlawfully, fraudulently, in breach of these Terms and Conditions or otherwise dishonestly will result in the termination of your password and access to the Empower Diabetes App.

  1. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MPOWER, ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS, ASSIGNS, CHANNEL PARTNERS AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE “RELEASED PARTIES”), TO THE EXTENT PERMISSIBLE BY LAW, WILL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND, WHETHER BASED IN DELICT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) ANY INFORMATION, ADVICE, GUIDANCE AND/OR SUPPORT, IN ANY MANNER WHATSOEVER, PROVIDED BY ANY DIABETES EDUCATOR DURING THE PROVISION OF THE DIABETES SUPPORT SERVICE; (II) THE USE OR THE INABILITY TO USE THE EMPOWER DIABETES APP AND/OR DIABETES SUPPORT SERVICE; (III) THE INABILITY TO USE THE EMPOWER DIABETES APP TO ACCESS CONTENT OR DATA; (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (V) UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (VI) THE USE, PROCESSING AND STORAGE OF PERSONAL INFORMATION OF USERS REFERRED BY YOU; (VII) ANY OTHER MATTER RELATING TO THE EMPOWER DIABETES APP AND/OR DIABETES SUPPORT SERVICE; OR (VIII) NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORISED ACCESS TO, THE EMPOWER DIABETES APP AND/OR DIABETES SUPPORT SERVICE OR ITS RELATED INFORMATION.

  1. INDEMNITY

14.1 WHILE MPOWER MAKES EVERY EFFORT TO ENSURE THAT THE CONTENT AND INFORMATION ON THE EMPOWER DIABETES APPLICATION AND/OR DIABETES SUPPORT SERVICE IS COMPLETE, ACCURATE AND UP TO DATE, WE MAKE NO GUARANTEE ABOUT THE SUITABILITY OF THE PRODUCTS AND SERVICES OF THE CHANNEL PARTNERS ON THE EMPOWER DIABETES APPLICATION OR WHETHER THEY ARE COMPLETE, ACCURATE OR APPROPRIATE.

14.2 YOU AGREE TO HOLD HARMLESS AND FULLY INDEMNIFY THE RELEASED PARTIES (AS SUCH TERM IS DEFINED IN CLAUSE 13 (LIMITATION OF LIABILITY) ABOVE) AND WILL NOT HOLD THE RELEASED PARTIES RESPONSIBLE FOR ANY CLAIM RELATING TO YOUR USE OF THE EMPOWER DIABETES APPLICATION AND/OR DIABETES SUPPORT SERVICE.

14.3 YOU AGREE TO HOLD HARMLESS AND FULLY INDEMNIFY THE RELEASED PARTIES, FROM ANY ERRORS OR INACCURACIES OR INCOMPLETE INFORMATION MADE AVAILABLE BY THIRD PARTIES (INCLUDING ADVISORS AND/OR EXPERTS) ON THE EMPOWER DIABETES APPLICATION AND/OR IN CONNECTION WITH THE DIABETES SUPPORT SERVICE AND AGREE THAT, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES, INCLUDING DIRECT, INDIRECT AND CONSEQUENTIAL LOSS, THAT MAY ARISE FROM ANY DISCLOSURE TO OR BY ANY THIRD PARTIES.

14.4 YOU AGREE THAT ALL INFORMATION, INCLUDING PRODUCTS AND SERVICES OR ANY TERMS OR CONDITIONS RELATING TO THEM, ON THE EMPOWER DIABETES APPLICATION AND/OR DIABETES SUPPORT SERVICE MAY CHANGE. MPOWER WILL NOTIFY YOU OF THE IMPORTANT CHANGES WITHIN A REASONABLE TIME.

14.5 YOU ACCEPT THAT THE ADVERTISEMENTS ON THE EMPOWER DIABETES APPLICATION COME FROM EXTERNAL SOURCES (THE CHANNEL PARTNERS), AND YOU AGREE THAT MPOWER IS NOT RESPONSIBLE, AND WILL NOT BE HELD LIABLE, FOR ANY INFORMATION OR CONTENT, RECEIVED FROM THE CHANNEL PARTNERS.

15. DISCLOSURE IN TERMS OF SECTION 43 OF THE ECTA

In accordance with the provisions of section 43 of the ECTA, you have the right to be provided with the following information from mPower:

15.1 Full name, registration number and legal status of mPower: mPower Digital Health Proprietary Limited (registration number: 2015/037553/07).

15.2 Physical address: Biopark at Innovation Hub, 1 Mark Shuttleworth Street, Lynwood Pretoria, Gauteng, 0087.

15.3 Website address: www.empowerdiabetes.com.

15.4 Membership of self-regulatory or accredited bodies: None.

15.5 Codes of conduct to which mPower subscribes: None.

15.6 Place of registration: South Africa.

15.7 Physical address for receipt of legal service: Biopark at Innovation Hub, 1 Mark Shuttleworth Street, Lynwood Pretoria, Gauteng, 0087.

15.8 Main business of mPower: The provision of lifestyle information/guidance to persons suffering from diabetes through use of the Empower Diabetes App and the Diabetes Support Service.

15.9 Price of goods and services: The download and installation of the Empower Diabetes App is at no cost to you, but for purposes of the subscription to the Diabetes Support Service, a Monthly Fee of 00 (one hundred and forty-nine Rand) per month is payable, as fully described above in clause 6 (Monthly Fee).

15.10 Manner of payment: The download and installation of the Empower Diabetes App is at no cost to you, but for purposes of the subscription to the Diabetes Support Service, a Monthly Fee of 00 (one hundred and forty-nine Rand) per month is payable, via credit card or electronic funds transfer (EFT), as fully described above in clause 6 (Monthly Fee).

15.11 Terms of agreement: As detailed in these Terms and Conditions.

15.12 Time of dispatch of goods/delivery of services: With regard to the Empower Diabetes App, delivery to your Mobile Device upon downloading and installation of the Empower Diabetes App; and with regard to the Diabetes Service, on a continuous basis and as soon as reasonably possible after a request to a Diabetes Educator for information/guidance.

15.13 Alternative dispute resolution: You agree that in the event of a dispute or alleged breach of these Terms and Conditions by mPower, you will, in good faith, work together with senior management of mPower to attempt to resolve the matter before resorting to litigation.

15.14 Security procedures: See the privacy policy below at clause 18 (mPower’s Privacy Policy). Furthermore, access to the Empower Diabetes App is password and username protected.

15.15 Privacy policy: Refer to clause 18 (mPower’s Privacy Policy).

15.16 Duration of these Terms and Conditions: Until terminated by either the mPower or the User.

  1. GOVERNING LAW

16.1 These Terms and Conditions are governed by and will be interpreted in accordance with the laws of South Africa.

16.2 The parties hereto, their successors and assigns, consent to the jurisdiction of the courts of South Africa with respect to any legal proceedings related to these Terms and Conditions.

17. SEVERABILITY

If any provision of these Terms and Conditions, to any extent, is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms and Conditions will in no way be affected or impaired thereby, and each such provision of these Terms and Conditions will be valid and enforceable to the fullest extent permitted by law.  In such case, these Terms and Conditions will be amended to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the rights and commercial expectations of the parties hereto, as expressed in these Terms and Conditions.

  1. MPOWER’S PRIVACY POLICY

18.1 mPower respects and takes your privacy seriously, and as such, we will use and process the Personal Information and Location Information that we collect from you in accordance with this Privacy Policy. Please note that this Privacy Policy is only applicable to the Empower Diabetes App and the Diabetes Support Service, and not to any other websites that you may be able to access from the content by the Channel Partners, each of which may have data collection, storage, and use practices and policies that differ materially from this Privacy Policy.  To learn more about the privacy policy controlling the content of Channel Partners themselves, visit each Channel Partner’s website for more information.

18.2 Information collected by the mPower

18.2.1 Location Information.

18.2.2 Personal Information.

18.3 Circumstances when we collect and store your Personal Information

18.3.1 When you use the Empower Diabetes App and Diabetes Support Service, mPower may collect and store your Personal Information either by directly requesting it from you or automatically recording your usage patterns of the Empower Diabetes App and/or Diabetes Support Service.

18.3.2 Personal Information is stored in a secure environment protected by a combination of physical and mechanical measures. For the avoidance of doubt, the Personal Information is not accessible to the general public.

18.4 Reasons why we collect and use your Personal Information

18.4.1 We use your Personal Information in order to operate and improve the function and content of the Empower Diabetes App and Diabetes Support Service, and, where relevant, our other applications, sites, services and tools, as well as to create and maintain your Empower Diabetes Account, which is required in order to operate the Empower Diabetes App and Diabetes Support Service.

18.4.2 Certain areas of the Empower Diabetes App and Diabetes Support Service may also ask you to provide information to participate in certain features or to access certain content. The Empower Diabetes App and Diabetes Support Service practices governing your personal information are disclosed within the Privacy Policy.  The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Empower Diabetes App and/or Diabetes Support Service.

18.4.3 Where relevant, your Personal Information is also collected in order for the mPower, its Channel Partners (and each of their affiliates) to send you marketing and promotional communication regarding products and services including by way of electronic means and your Personal Information is also intended to be commercialised to other parties i.e. sold, exchanged, transferred, rented or otherwise made available to third parties without compensation to you.

18.5 The storage of your Personal Information

The Personal Information that the Empower Diabetes App and Diabetes Support Service collect may be stored locally on your Mobile Device and may be transmitted to our third party’s server, which may, from time to time, be located outside of South Africa.  The transmission of information over wireless and wired networks is not inherently secure.  Therefore, mPower will, acting reasonably, implement all necessary and adequate measures to help protect your Personal Information against unauthorised access and disclosure. However, mPower does not guarantee the absolute safety thereof.

18.6 By signifying your acceptance of these Terms and Conditions electronically and downloading the Empower Diabetes App and activating your Empower Diabetes Account, you expressly:

18.6.1 confirm that you are over the age of 18 (eighteen) years;

18.6.2 agree that you will, to the extent permissible by law, not hold mPower liable for any damages of any kind, whether based in delict, contract, strict liability or otherwise, for any information, advice, guidance and/or support, provided by any Diabetes Educator in any manner whatsoever, during the provision of the Diabetes Support Service;

18.6.3 agree to receive future communications, including direct marketing communications, from the mPower, its Channel Partners and/or any of each of their affiliates (“Parties”) either directly or through their duly authorised agents such as marketing agencies from time to time, including marketing and advertising material and information on promotions and offers either relating to the products and/or services of the Parties;

18.6.4 consent to the collection, collation, processing, further processing and disclosure of your Personal Information (which includes your Mobile Device Data) by the Parties for the purposes more fully set out below, and their appointed designees from time to time, which may include collection agencies, parties involved in the technical administration and maintenance of any database which will house your information, information technology companies and marketing companies;

18.6.5 acknowledge that:

18.6.5.1 in relation to the collection, collation, processing, further processing and disclosure of Personal Information by mPower, the nominated address of mPower, as listed in clause 2 above;

18.6.5.2 in relation to the collection, collation, processing, further processing and disclosure of Personal Information by any other “responsible party” (as defined in the POPI Act), such responsible party will be responsible for making their nominated address available to you;

18.6.5.3 your Personal Information is required by mPower for purposes of:

18.6.5.3.1 enabling you to make use of the Empower Diabetes App and Diabetes Support Service, which includes, creating an Empower Diabetes Account, which is required prior to gaining access to the Empower Diabetes App; and

18.6.5.3.2 improving the Diabetes Support Service and improving the Empower Diabetes App, including its functionality; and

18.6.5.3.2 for purposes of direct marketing by the mPower, the Channel Partners and/or their respective affiliates of their products and services.

18.6.6 agree that the Parties may transfer and store your Personal Information to a third country that does not have the same level of protection in respect of the processing of personal information, as is provided for in South Africa;

18.6.7 agree that your consent is given freely and voluntarily and you are under no obligation to provide this consent;

18.6.8 agree that your consent will, in the absence of any written objection received from you, be indefinite and/or for the period otherwise required in terms of any applicable law;

18.6.9 understand that you may at any time request a record of, or object to the processing of, your Personal Information held by the Parties and their designees;

18.6.10 understand that you are entitled to request the correction, destruction or deletion of your Personal Information that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully;

18.6.11 understand that if you suspect any interference with the protection of your Personal Information held by the Parties and its designees, you should, in the first instance, try to resolve any concerns directly with mPower. If you are not satisfied with such process you may at any time lodge a complaint with the Office of the Information Regulator, once it has been established;

18.6.12 understand that you may demand during or within a reasonable time after providing this consent that the Parties desist from initiating any further communication with you; and

18.6.13 confirm and acknowledge that the consent you are giving by signifying your acceptance of these Terms and Conditions electronically is your “informed consent”, which means that:

18.6.13.1 you have read and understood the contents of these Terms and Conditions;

18.6.13.2 you understand and acknowledge the nature of the information relating to you that will be made available to, and may be used by the mPower, Diabetes Educators and the Parties in accordance with these Terms and Conditions;

18.6.13.3 you understand and acknowledge the purpose for which the information relating to you will be made available to, and may be used and disclosed by mPower, Diabetes Educators and the Parties in accordance with these Terms and Conditions; and

18.6.13.4 you have the legal capacity to give your informed consent, in other words, you are an adult person who fully understands and is fully able to make decisions about your own actions.