Terms & Conditions

1. Introduction
   • The Sumit software application (“the App”) and the website at thesumof.co.za (“the Website") have been developed, are owned, and are operated by The Sum Of (Pty) Ltd (Reg nr: 2021/435945/07) (“TSO”).
   • The App is available for download from various app stores identified by TSO from time to time, on compatible electronic devices.
   • The App enables employers to determine, measure and improve the wellbeing of their businesses and its employees. For purposes of these Terms and Conditions (“T&Cs”), both the employers and the employees shall be referred to collectively as “the Users”.
   • These T&Cs govern the use of the App.
2. Important Notice
   • These T&Cs apply to Users who are consumers for purposes of the Consumer Protection Act 2008 (“the CPA").
   • These T&Cs contain provisions that appear in similar text and style to this clause and which -
     • may limit the risk or liability of TSO or a third party; and/or
     • may create risk or liability for the User; and/or
     • may compel the User to indemnify TSO or a third party; and/or
     • serve as an acknowledgement, by the User, of a fact.
   • If there is any provision in these T&Cs that a User does not understand, it is the User’s responsibility to ask TSO to explain it to them before they accept the T&Cs by continuing to use the App.
   • Nothing in these T&Cs is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either the User or TSO in terms of the CPA.
3. Stipulatio alteri
   • In addition to TSO and the employer’s rights and obligations created by these T&Cs, it is the intention of TSO and the employer to create enforceable rights and obligations by and for the employees, who are granted access to the App by virtue of the employer’s right to use the App.
   • By their registration as a User on the App, and the acceptance of the T&Cs, the employees shall be deemed to have accepted the rights and obligations created by and for them in these T&Cs.
4. Registration and use of the App
   • Only registered Users may use the App.
   • To register as a User of the App, an employer shall provide TSO with a CSV file containing the full names and company email addresses of each of its employees, details as to which department the employee is employed in and any other relevant information pertaining to the employer and/or the employees to enable TSO to deploy the App for use by the Users. Once an employer has registered with TSO, it is incumbent on each employee to download the App from the IOS or Android App stores, and register to use the App by providing their full names and company email address, whereafter employees will be requested to select their own password to access the App in future.
   • Employees will need to use their company email address and password to use the App. Failure by an employee to enter their correct login details when wanting to use the App will result in the employee being unable to do so.  In this regard, it is expressly provided that TSO shall not be responsible for any employee’s failure to register as a User of the App and/or any employee’s failure to access and/or use the App.
   • Users agree and warrant that their Username and password shall not be disclosed by them to any third party. In the event that a User discloses their Username and password to a third party:
     • he/she does so at their own risk;
     • Users acknowledge that the App contains their Personal Information (as defined in clause 1 of Part 2 of these T&Cs), and by disclosing their Username and password to any third party, they are disclosing their Personal Information to such third party voluntarily, and
     • TSO shall not be liable for any costs, expenses, losses, harm and/or damages suffered by any User as a result.
   • Users agree to notify TSO immediately upon becoming aware of, or reasonably suspecting, any unauthorised access to or use of their Username and/or password and to take steps to minimise any resultant costs, expenses, losses, harm and/or damages.
   • Users shall in writing notify TSO of any possible malfunctions or errors in the App. TSO undertakes to, as quickly as possible, address and resolve any malfunctions or errors in the App.  TSO records that it utilises the services of a third party for technical issues, and as such, cannot control the lead time to address and resolve any malfunctions or errors in the App.
   • Users agree that they will not in any way use any device, software or other instrument to interfere or attempt to interfere with the proper working of the App. Users may use the App only for lawful purposes and may not in any way (including without limitation by use of any robot, spider, other automatic device or manual process) monitor, distribute, display, publish, copy, print, post, modify or otherwise use the App and/or the information contained therein without TSO’s express prior written consent.
5. Correctness of information
   • Users acknowledge that the effectiveness of the App is reliant on information supplied by Users. Employees acknowledge that they are aware of the fact that the information entered by them on the App, while not specifically visible to the employer (save and except as provided in clause 4 hereof ), will be used to provide certain statistics, observations, trend information and the like to the employer to enable the employer to determine, measure and improve the wellbeing of its business and that of the employees.
   • TSO bears no responsibility or liability for any inaccuracies that arise in reporting and feedback to the employer as a result of the information supplied to it by either the Users.
   • It is the obligation of the employer and their employees to resolve any dispute that may arise as a result of inaccurate information supplied by either of them on the App. TSO is not obliged to participate in the resolution of such a dispute, although it may decide, in its sole and absolute discretion, to do so.
6. Minors

By using the App, Users warrant that they are 18 years of age or older and of full legal capacity.  If a User is under the age of 18 or if a User is not legally permitted to enter into a binding agreement, then such Users may use the App only with the involvement and supervision of a parent or legal guardian.  In such event, and only if the parent or legal guardian supervises the User and gives his/her consent, then he/she agrees to be bound to these T&Cs and to be liable and responsible for the User and all the User’s obligations under these T&Cs.

7. How it works
   • Once an employer has subscribed to use the App, that employer’s employees (or those whom the employer has indicated will be using the App) will be given access to the App in order to register as Users thereon. The extent of access to all the App’s features will depend on the subscription package the employer has registered for.
   • For the duration of the employer’s subscription with TSO, the employees will be given such access to the App, and to such of the functions thereon as may apply to the subscription package the employer has registered for. It is every employee’s responsibility to make use of the App in order to obtain the full benefit therefrom.
   • The App utilises a number of aspects relating to wellness, including but not limited to Purpose and Meaning, Thriving in Life, Environment, Work and Career, Knowledge and Creativity, Health and Fitness, Money and Savings, and Connection and Belonging.
   • None of the information entered into the App by any employee, nor the identity of any employee, shall be visible to any third party, save and except for:
     • TSO, or one of its directors, employees, or representatives that shall be designated to be the “SuperAdmin”;
     • A person designated by the employer to be the “Admin”; and
     • The information entered by each employee in response to certain very specific questions in the App, and where it is indicated in the App that the answers to such questions and the identity of the employee will be visible to the employer.
   • Employees acknowledge that the information entered by them on the App, while not specifically visible to the employer (save and except as provided in clause 4 of Part 1 of these T&Cs), will be used to provide certain statistics, observations, trend information and the like to employers to enable the employer to determine, measure and improve the wellbeing of its business and the employees.
   • At TSO’s sole and absolute discretion, the ongoing provision of inaccurate or incorrect information by the Users may be considered a Material Breach of these T&Cs as such conduct directly affects the effectiveness of the App, affording TSO the right to immediately terminate the User’s access to the App, and take whatever steps necessary to protect its interest in and to the App, including claiming all outstanding fees, interest thereon at the prime interest rate (calculated from the due date of payment to the actual date of payment, both days inclusive) and any penalty as provided for in the Agreement between the employer and TSO.
8. Privacy Policy

TSO respects the Users’ privacy and will take all reasonable measures to protect it, as more fully detailed in its Privacy Policy, which is detailed in PART 2 of these T&Cs.

9. Amendments or variations to these T&Cs
   • TSO may, in its sole and absolute discretion, amend or vary these T&Cs at any time. It is the User’s responsibility to regularly check these T&Cs and make sure that they are satisfied with the changes. Should a User be unsatisfied with any amendments or variations to the T&Cs, such Users should no longer make use of the App. Continued use of the App by any User, despite any dissatisfaction therewith, shall be deemed to be an acceptance of the amended or varied T&Cs.
   • Any amendment or variation to the T&Cs will apply to any User’s use of the App after the amendment or variation is displayed in these T&Cs. Continued use of the App by any User following such amendment or variation, shall be deemed to be an acceptance of the amended or varied T&Cs.
10. Electronic communications

By using the App or sending emails to TSO, a User consents to receiving communications from TSO or any of its divisions, affiliates or partners electronically in accordance with our Privacy Policy as set out in clause 8 above.

11. Ownership and copyright
    • The contents of the App, including:
      • any material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs and service marks which are displayed on or incorporated in the App ("App Content"), and
      • content and resources (in various formats) provided to it by experts in various fields of expertise relating to the question of wellbeing (“the Experts”) (“the Third Party Content”),

are protected by law, including but not limited to, copyright and trade-mark law.

• The Content IP as well as the Intellectual Property associated with the App (collectively, “the Intellectual Property”) is, and shall remain, the property of TSO.
• Users acknowledge that TSO is the owner of, or has been licenced to use, the Intellectual Property (including the copyright) relating to the content on the App (“Content IP”)
• Users shall not acquire any rights, title or interest in the Intellectual Property other than the right to use same while using the App. Users will never acquire any ownership or like interest in the App, in the Intellectual Property,  or in the content made available thereon, by virtue of the fact that they have a right to use the App.
• Any use, distribution or reproduction of the App Content is prohibited unless expressly authorised by TSO, or otherwise provided for in law.

12. Disclaimer
    • Access to and the use of the App is entirely at each User’s own risk and the employer assumes full responsibility for any risk or loss resulting from such access, use or reliance on any information on the App. TSO is not responsible or liable for any damage, loss or expense, whether direct, indirect or consequential in nature, arising out of or in connection with any User’s access to or use of the App and/or any content therein, unless otherwise provided by law.
    • Whilst TSO takes reasonable measures to ensure that the content of the App is accurate and complete, TSO makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the App, or as to the accuracy, completeness or reliability of any information on the App. If any such representations or warranties are made by any TSO representatives, TSO shall not be bound thereby.
    • Whilst TSO takes all reasonable measures to ensure the quality, timeliness, operation, integrity, availability or functionality of the App, TSO makes no representations or warranties, whether express or implied, as to the aforementioned, and shall not be liable for any damage, loss or expense, whether direct, indirect or consequential in nature, arising out of or in connection with any failure of the aforementioned, save where such liability arises from the gross negligence or wilful misconduct of TSO, its employees, agents or authorised representatives.
    • Any views or statements made or expressed on the App are not necessarily the views of TSO, its directors, employees and/or agents.
    • In addition to the disclaimers contained elsewhere in these T&Cs, TSO makes no warranty or representation, whether express or implied, that the information or files available on the App are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of a User’s computer system, computer network, hardware or software in any way. Users accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or their hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of TSO, its employees, agents or authorised representatives
13. Linked third party sources
    • The App may contain links or references to other websites, YouTube Channels, TikTok Accounts, Instagram Accounts, Facebook Pages, LinkedIn Profiles and other media sources ("Third Party Sources") which are outside of TSO’s control, including those of the Experts and any advertisers. These T&Cs do not apply to those Third Party Sources and TSO is not responsible for the practices and/or privacy policies of those Third Party Sources or the "cookies" that those sites may use.
    • Notwithstanding the fact that the App may refer to or provide links to Third Party Sources, a User’s use of such Third Party Sources is entirely at such User’s own risk and TSO is not responsible for any loss, expense, claim or damage, whether direct, indirect or consequential, arising from a User’s use of such Third Party Sources or the User’s reliance on any information contained thereon.
    • Through the use of the App, the Users may provide information or content that will be visible to other Users on the App (“User Content”). Such content is outside of TSO’s control.  TSO is not responsible for the User Content, and is not responsible for any loss, expense, claim or damage, whether direct, indirect or consequential, arising from a User’s use of the User Content or the User’s reliance on any information contained thereon.  TSO is similarly not responsible for the views expressed by any User, either on the App or about the App.
14. Limitation of liability
    • TSO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES WHICH MIGHT ARISE FROM THE USE OF, OR RELIANCE UPON, THE APP OR THE CONTENT CONTAINED IN THE APP; OR A USER’S INABILITY TO USE THE APP, AND/OR UNLAWFUL ACTIVITY ON THE APP, AND/OR ANY LINKED THIRD PARTY WEBSITE OR MOBILE APPLICATION. SHOULD IT BE FOUND THAT TSO IS LIABLE TO A USER OR USERS, SUCH LIABILITY SHALL BE LIMITED TO THE AMOUNT OF THE PAYMENT MADE BY THAT PARTICULAR USER OR USERS.
    • USERS HEREBY INDEMNIFY TSO AGAINST ANY LOSS, CLAIM OR DAMAGE WHICH MAY BE SUFFERED BY THEM OR ANY THIRD PARTY ARISING IN ANY WAY FROM THEIR USE OF THE APP AND/OR ANY LINKED THIRD PARTY WEBSITE OR MOBILE APPLICATION.
15. Availability and termination
    • TSO will use reasonable endeavours to maintain the availability of the App, except during scheduled maintenance periods.
    • TSO may in its sole discretion terminate, suspend and modify the App, with or without notice to Users. Users agree that TSO will not be liable to them in the event that it chooses to suspend, modify or terminate the App, unless the employer and TSO agree otherwise in writing.
    • If a User fails to comply with their obligations under these T&Cs, this may (in TSO’s sole and absolute discretion, with or without notice to the User) lead to a suspension and/or termination of that User’s access to the App, without any prejudice to any claims for damages or otherwise that TSO may have against them.
    • TSO is entitled, for purposes of preventing suspected fraud and/or where it suspects that a User is abusing the App, to blacklist the User on its database (including suspending or terminating the User’s access to the App) on notice to the User. TSO accepts no other liability which may arise as a result of such blacklisting, suspension and/or termination.
    • In the event employers wish to stop using the App, the employer will be expected to give TSO the written notice of such termination in accordance with the agreement entered into between the employer and TSO.
16. Force majeure events

As between any User and TSO, no party will be liable to any other party for any delay or failure in performing its obligations (excluding payment obligations) in terms of these T&Cs due to an event beyond its control, including but not limited to, an act of God, fire, flood, earthquake or war.

17. Governing law and jurisdiction
    • These T&Cs, the relationship between Users and TSO, and/or any dispute arising from or in connection with these T&Cs shall be governed and interpreted in accordance with the laws of the Republic of South Africa.
    • A User’s continued use of the App will constitute that User’s consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these T&Cs.
    • In the event of any dispute arising between a User and TSO, Users hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (Gauteng Local Division, Johannesburg) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
    • Nothing in this clause 0 or the T&Cs limits a User’s right to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
18. Notices
    • TSO hereby selects 10 Blandford Ridge Estate, Lonehill, Sandton, Gauteng as its address for the service of all formal notices and legal processes in connection with these T&Cs ("domicilium address"). TSO may change its domicilium address from time to time by updating these T&Cs.
    • Users hereby select the email address and the employer’s physical address as specified by the employer when registering for the App as their respective domicilium addresses, but Users may change such address by giving TSO not less than 7 days’ notice of such change in writing.
    • Notices must be sent either by hand or email and must be in English. All notices sent -
      • by hand will be deemed to have been received on the date of delivery;
      • by email before 16h30 on a business day will be deemed to have been received on the date of successful transmission of the email. All emails sent after 16h30 or on a day which is not a business day will be deemed to have been received on the following business day, unless the contrary is proved.

19. Information
    • For the purposes of the Electronic Communications and Transactions Act 2002, TSO’s information is as follows:
      • Full name: The Sum Of (Pty) Ltd, a private company registered in South Africa with registration number 2021/435945/07.
      • Main business: HR consulting focused on providing customised and fit-for purpose HR solutions, enabling businesses and employees to thrive together.
      • Physical address for receipt of legal service (also postal and street address): 10 Blandford Ridge Estate, Lonehill, Sandton, Gauteng
      • Office bearers: Lucia McMullan
      • Phone number: +27 82 336 5214
      • Official email address: lucia@thesumof.co.za
      • PAIA: The manual published in terms of section 51 of the Promotion of Access to Information Act 2000 may be downloaded from this App.

20. General
    • TSO may, in its sole discretion, at any time and for any reason and without prior written notice, suspend or terminate the operation of the App, or the User’s right to use the App, or any of its contents.
    • Users may not cede, assign or otherwise transfer their rights and obligations in terms of these T&Cs to any third party.
    • Any failure on the part of a User or TSO to enforce any right in terms hereof shall not constitute a waiver of that right.
    • If any term or condition contained herein is declared invalid, the remaining T&Cs will remain in full force and effect.
    • No variation, addition, deletion, or agreed cancellation of the T&Cs by any User will be of any force or effect. The variation, addition, deletion, or agreed cancellation of the T&Cs by TSO is governed by clause 10
    • No indulgence, extension of time, relaxation or latitude which either a User or TSO (“the grantor") may show, grant or allow to the other of them (“the grantee") shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
    • These T&Cs contain the whole agreement between Users and TSO and no other warranty or undertaking is valid, unless contained in this document.