FLASH SA (PTY) LTD
Terms and Conditions for Drivers
*last updated on 28 October 2022
1. DEFINITIONS
1.1. “Driver” or “You” means the person providing professional Transportation Services to Passengers on an independent basis, as an individual or through a company, with whom the Passenger shall contract for the provision of the Transportation Services.
1.2. “Flash Account” means the profile created and activated by the Driver on our electronic application, which profile shall contain the Driver’s relevant personal information linked to the active Flash Account including, but not limited to, the Driver’s full contact details and verified payment information for purposes of payments to the Driver.
1.3. “Flash”, “we”, “us” or “our” means Flash App SA (Pty) Ltd, a private company with registration number 2020/824416/07, duly incorporated in the Republic of South Africa, with its chosen domicilium citandi et executandi at 5 Denver Road, Lansdowne, Cape Town, Western Cape, and contactable via email at email address.
1.4. “Flash App” means our electronic software or technology-based mobile application that enables Drivers to fulfil requests and Passengers to receive Transportation Services, as may be updated from time to time.
1.5. “Flash In-App Payment” means a payment method option available for Passengers to make payment of the Passenger Fare to Drivers whereby payment to Driver is facilitated by Flash though Flash App via Flash’s third party payment provider.
1.6. “Flash Platform” refers to the Flash online technology connecting Drivers and Passengers accessible through our Website.
1.7. “Flash Services” or “Services” means the services made available by Flash, including the provision of Flash App, Flash Platform, In-app payment services, websites, content, facilitation of Driver and Passenger communication services, customer support, and related products and services.
1.8. “Passenger” or “User” means the person accessing Flash Services as a passenger through the Flash Platform to request Transportation Services.
1.9. “Passenger Fare” means the fee a Passenger is obliged to pay Drivers for the provision of the Transportation Services.
1.10. “Party” or “Parties” means Flash or the Driver, or both as read in the appropriate context.
1.11. “Subscription Fee” means the fee that Driver is obliged to pay Flash for using the Flash Platform and Flash App, which becomes due for each day that the Driver completes at least one Trip using the Flash Platform. The Subscription Fee is calculated based either as a set amount of R50.00 for Drivers whose aggregate day Trips total R500.00 or more in Passenger Fares for the day or capped at 10% of the daily aggregate Passenger Fare total value for Drivers who generate less than R500.00 on any given day.
1.12. “Terms” means the general terms and conditions as set out herein, which together with the Flash privacy policies and any guidelines and other policies located on Flash App and/or Platform, govern your access to and use of the Flash Services.
1.13. “Tip” refers to a gratuitous payment made at the discretion of a Passenger for the benefit of the Driver, in addition to the Passenger Fare.
1.14. “Transportation Services” mean the logistical or transport services a Driver provides to a Passenger after accepting the Passenger’s request for such provision through the Flash App.
1.15. “Trip” means the transport journey arranged through Flash App in which the Passenger is transported by the Driver from the specified pickup location to the Passenger’s end destination.
1.16. “Website” means Flash’s online domain accessible through “website”.
2. INTRODUCTION AND ACCEPTANCE OF TERMS
2.1. The Terms contained herein must be read carefully before accessing or using Flash Services and you must ensure that you understand the nature of Flash Services and agree to these Terms before you may begin to use our Services.
2.2. These Terms set out the general terms and conditions governing Driver use of Flash Services, which services constitute an e-hailing technology platform enabling Passengers who use the Flash App or Flash Platform to request and arrange Transportation Services with independent Drivers registered on the Flash Platform; and inform you of the Terms on which you may make use of Flash Services.
2.3. By utilising and/or accessing Flash Services through Flash App, Flash Platform or its Website, you acknowledge that you have read and understood these Terms, and agree to be contractually bound by these Terms.
2.4. Should you decline to accept these Terms, you must refrain from using and/or accessing the Flash Services.
3. USE OF THE FLASH APP
3.1. Flash provides an e-hailing online platform and technology-based mobile application service for subscription based-independent Drivers seeking to provide Transportation Services to Passengers, with the view to facilitate the connection between Drivers and Passengers, and Flash does not provide any transportation services itself.
3.2. Use of Flash Services though the Flash App enables Passengers to request and receive the Transportation Services from independent Drivers, by way of Flash Services connecting and facilitating this engagement between Passenger and Drivers who provide Transportation Services.
3.3. Drivers must expressly authorise Flash to facilitate the relationship between the Driver and Passengers through the Flash Application and Platform, by accepting and agreeing to these Terms, and successfully registering a Driver Account before you may begin using the Flash Services.
3.4. Prior to utilising Flash’s Services, you must first successfully register as a Driver with Flash, which process requires you to download the Flash App and subsequently register a Driver Account. In order to register with Flash you will be required to create a Driver profile, enter your personal information, including valid banking details for payment to be made, and upload proof of your necessary professional qualification and ancillary documentation and information required by Flash.
3.5. You are required to ensure that your nominated banking account is valid and the information provided to us is accurate as we will transfer all funds due to you received from Passengers using our Flash In-App Payment service into the nominated banking account linked to your Driver Account. Flash assumes no liability for the correctness of the banking details provided for you and Drivers accept full responsibility for any erroneous transactions due to incorrect payment details.
3.6. Flash may communicate to you any further conditions to fulfil or documentation that may be additionally required thereafter.
3.7. Your Driver profile will be created upon the successful submission of the required documentation communicated to you and fulfilment of all additional conditions. You may be charged a once off administrative fee payable to Flash or our designated partner appointed to validate any documentation uploaded by you, including but not limited to costs associated with the completion of your Driver Account, the inspection of your Driver documentation, background and criminal checks. This fee will be communicated to you via your chosen email address and must be paid in order to activate your Driver Account.
3.8. Should you fail to comply with Flash’s conditions, we may suspend or terminate your use of Flash Services.
3.9. Upon successful registration on the Flash App and your Driver Account is activated, you must select an appropriate and applicable service to offer Passengers depending on your vehicle, namely: –
3.9.1. Flash Standard Service for transporting up to four Passengers;
3.9.2. Flash Plus Service for transporting four or more Passengers but less than nine; or,
3.9.3. Flash Premium Service for transporting up to four Passengers in a luxury vehicle.
3.10. Whereafter, you must enter your service schedule and specify the days and times you will be able to provide Transportation Services to Passengers. You will have full control over your chosen service schedule and may at any time decide to amend your specified days and times.
3.11. Flash App will search for an available Driver to attend to Passenger requests for Transportation Services. Flash does not provide the transportation service, in and of itself.
3.12. Thereafter, an available and willing Driver may accept the Passenger’s request for Transportation Services for a prior agreed estimated Passenger Fare calculated according to the integrated software of Flash App. At the moment of the Driver’s acceptance of the service request, the Driver and Passenger are deemed to have entered into a contractual agreement for the provision of the Transportation Services via Flash App.
3.13. Flash is not responsible in any capacity for the fulfilment of the agreement entered into between the User and Driver. Consequently, Flash is not responsible for any dispute that may arise between the Passenger and Driver relating thereto or to the nonfulfillment of such agreement and/or Trip.
3.14. Flash may allow Drivers to maintain a Flash Account for as long as the Driver agrees, complies and accepts the Terms as set out herein, and as may be amended from time to time. Drivers who strictly adhere to these Terms, and comply with the Flash Privacy Policy and any other applicable Flash policies, may be granted a right to use Flash Services on a non-exclusive, royalty-free, and revocable basis. The right to use and/or access Flash App is non-transferrable and may be cancelled by Flash in accordance herewith.
3.15. The Driver undertakes in good faith to at all times remain respectful of Passengers and engage in the Transportation Services in a manner that is courteous, considerate and in the spirit of any Flash Passenger guidelines and policies.
3.16. Though Flash cannot guarantee the quality of Transportation Services provided by Drivers or the behaviour of the Passenger, we request that you notify us of any unpleasant or offensive experiences during your Trip.
3.17. Upon the conclusion of a Trip, both the Driver and Passenger will be prompted to complete a review of the Transportation Services rendered by the Driver and the quality of the Passenger’s use of the service and behaviour during the Trip. This allows Flash to consider your experience and provide feedback to the relevant Passenger in performance of the Passengers obligations and our services to you.
3.18. Drivers, unless prior written permission to the contrary is obtained from Flash, are permitted to hold one Flash Account. You are solely responsible for the affairs of your Flash Account, notwithstanding that you may elect to request a Trip on behalf of another person and the conduct of that person, and you are required to ensure the safety and security of your Flash Account.
3.19. Drivers are at all times required to adhere to these terms and conditions and must always maintain abreast of their obligations in pursuance of the South African e-hailing and other applicable laws; in particular, Drivers are required to ensure that their status as an operator is confirmed and maintained at all times whilst utilising the Flash App. Failing which, a Driver shall be automatically barred from utilising the Flash App and Platform.
4. PROVISION OF TRANSPORTATION SERVICES BY THE DRIVER
4.1. You agree to provide your Transportation Services to Passengers in a manner that is professional and ethical. The safety of the User and other persons in the motor vehicle is of paramount importance.
4.2. You undertake to ensure the following: –
4.2.1. A route taken on any particular Trip is either the suggested automated GPS mapped route, or the route that is least costly to the User, unless expressly directed otherwise by the User.
4.2.2. No unauthorised stops will be made enroute during a Trip, without the express direction or consent of the User.
4.2.3. No other passengers will be aboard the motor vehicle except those who are accompanying the User.
4.2.4. You will adhere to all prevailing regulations and laws insofar as it relates to traffic rules and safety practices.
4.3. The Driver holds sole discretion to opt to accept, ignore or cancel a prospective Trip request.
4.4. In providing the Transportation Services, the Driver is solely liable for all related costs incurred in providing the services, this includes costs pertaining to, the motor vehicle, fuel, insurances, licencing, a GPS-compatible smartphone, cellphone data, Subscription Fees etc.
4.5. Should the Passenger or persons accompanying the User cause or negligent damage your motor vehicle or its contents, you are entitled to request us to investigate an incident report which may result in an outcome of the Passenger paying a penalty in an amount of up to R 5 000.00 (five thousand rand), and request compensation for all direct and/or indirect damages exceeding the penalty.
4.6. In the event that Flash receives an incident report relating to any damage to your vehicle and/or property caused by the Passenger or resulting from the use of Flash Services on the Passengers Flash Account, Flash reserves the right to verify such incident report in its reasonable discretion and to facilitate payment from the Passenger for the reasonable cleaning costs or repair costs on your behalf.
4.7. Should your attempts to collect the penalty and damages amounts fail, Flash may attempt to recover the aforesaid amounts on your behalf, however, makes no guarantees or undertakings to be responsible for recovering the amounts.
5. QUALITY OF TRANSPORTATION SERVICES BY THE DRIVER
5.1. Upon the conclusion of a Trip, the User will be prompted to complete a review of the Transportation Services rendered by the Driver. This allows Flash to consider the User experience and provide feedback to the relevant Driver in performance of his obligations and services.
5.2. You hereby acknowledge that Users will provide ratings and feedback of your services. An average rating will be linked to your Account for Users to view. Any ratings or feedback that is suspected of being fraudulent or false will not be taken into consideration.
5.3. As Flash strives to ensure that Drivers provide safe and consistent transportation services, it may determine a minimum threshold regarding ratings and services from time to time; and notify you should your rating and services be deemed to fail to meet the minimum standard. This is to provide you with the opportunity to improve in your provision of services.
5.4. Flash may take appropriate action, such as suspension or termination of your Account, should you fail to improve your standard of transportation services.
6. DATA AND CHANGES TO PERSONAL INFORMATION
6.1. When you submit your registration on Flash App, you are required to enter your personal information, including your email address, mobile telephone number, physical address and/or relevant payment information for purposes of Flash transferring the fees due to you via Flash In-App Payment. You may be required to validate your identity as well as your contact and payment information.
6.2. Accordingly, you consent to Flash processing this information and agree to at all times maintain an accurate and up-to-date Flash Account profile reflecting your current contact information, physical address and/or relevant valid payment details.
6.3. In the event that you fail to maintain complete and updated changes to the Flash Account, including but not limited to, any failure to update your valid payment information, attempting to use expired or invalid payment methods, may result in the restriction or termination of your use of and access to Flash Services.
6.4. Flash will keep a record of the relevant data and information relating to the Driver Trip information and the Trip receipt reflecting such information and total Passenger Fare will be sent directly to the Driver’s chosen email address at the conclusion of the Trip.
7. SUBSCRIPTION FEE, TRIP FEES AND ANCILLARY
7.1. Flash operates on a “pay as you use” basis, and thus allows you to utilise our Services in exchange for the payment of the Subscription Fee per day that you provide the Transportation Services with at least one completed Trip through Flash App. The Subscription Fee is debited on a weekly basis and shall commence from the first day that the Driver has worked; and is calculated as follows, either in the amount of: –
7.1.1. A flat rate of R 50.00 (fifty rand) per day should total Trip fees generated on any given day be equal to R 500.00 (five hundred) or more; or,
7.1.2. 10% (ten percent) of the total Trip fees generated on any given day should the total Trip fees generated on any that day accumulate to an amount less than R 500.00 (five hundred rand).
7.2. Any delay in payment of the Subscription Fee may attract a penalty charge that Flash shall determine from time to time on the App.
7.3. The Passenger has the option of selecting from two payment methods for purposes of making payment of the Passenger Fare to Driver. Payment may be effected to Driver either by way of the Flash In-App Payment method processed though Flash App by our third-party payment provider, or the Passenger may select a cash payment directly to you.
7.4. Drivers, similarly, may opt to provide Transportation Service exclusively for Flash In-App Payment or cash payments, alternatively both.
7.5. The Flash In-App Payment method is seamlessly integrated into Flash App and upon receipt of the payment instruction the total Passenger Fare is debited from the Passengers linked bank account upon completion [or commencement?] of the Trip. Flash In-App Payment services may attract additional taxes and charges including but not limited to, third-party payment costs, bank charges, income tax, and Flash is not responsible for any such additional transactional costs and/or taxes.
7.6. Using Flash’s In-App Payment service requires Flash to act as a commercial agent to Drivers providing Transportation Services. You hereby authorise Flash to act in limited commercial capacity as your agent for the collection of Passenger Fares, and/or additional costs, as payment for Trips from a User’s nominated bank account and on payment to you. Any further charges and taxes that may be due in addition to the Subscription Fee, such as third-party payment costs at an additional charge of 0.25% (zero point two five percent) of the total transaction value per transaction, will be for your account and deducted from the total fees due to you at the end of each week.
7.7. Charges and costs applicable for the use of the third-party payment provider are calculated per transaction and debited against the Driver’s Flash Account, as determined from time to time by Flash.
7.8. Should the User elect to pay the Driver in cash,, the Driver is required to tender the correct change to the User, alternatively, accept the cash amount, record this transaction on Flash App and request Flash to provide a credit amount against the User’s Account. Should the User fail to make a cash payment after completion of a Trip, and upon your notification to Flash via Flash App, Flash will notify the User of a failure to pay. Should the User provide a just and equitable reason for failure to pay, Flash is under no obligation to compensate you for your expenses incurred.
7.9. The Passenger’s payment obligation is owed to you and shall be discharged upon Flash’s receipt of the payment instruction to make payment of the Passenger Fare to our bank account via the Flash In-App Payment process. Flash shall receive all Passenger payments and then pay over the aggregate weekly total of Passenger Fares collected on your behalf less the Subscription Fee and ancillary charges, to your nominated bank account at the end of each working week.
7.10. The Passenger Fare estimation is calculated through the Flash App automated means of mapping the anticipated route. A final Passenger Fare is determined upon drop-off of the Passenger at the inserted destination. However, this final fee may include, but are not limited to, certain ancillary costs such as high-demand surcharges, booking fees and tolls. Flash reserves the right to adjust the total fee and/or any other costs insofar as it is just and equitable to do so.
7.11. At the completion of the Trip, a Passenger has the discretion of tipping you a gratuity at an additional cost through the Flash App or in cash. You will receive 100% (one hundred percent) of all tips, excluding any relevant charges and taxes that may be applicable. However, Flash expressly reserves its right to withhold the provision of any tips to any Driver should it suspect that the payment of the tip is unlawful.
7.12. In the event that an electronic payment option is selected, Flash is authorised by the Driver to accept payments from the User in order to tender such payment to the Driver. In line with the provision of services rendered by the Driver, a User’s obligations will be discharged upon successful payment of the Passenger Fare where the instruction has been given for the transfer of funds electronically through the Flash In-App Payment successfully, or the correct amount in cash has been tendered.
7.13. From time to time, Flash may send promotional codes to Users for the application of a discount towards the Passenger Fare. In the event that the User applies such a discount to a Trip, the Driver will be entitled to receive the full value of the Passenger Fare that would ordinarily have been charged, Flash will compensate the Driver for the shortfall as the Driver would ordinarily be entitled to receive.
7.14. Upon completion of a Trip, Flash will issue a Trip receipt to the Driver and Passenger respectively. You hereby agree that we are entitled to include in this receipt, your personal information relating to the Trip, including, the motor vehicle and registration number, your full name and contact information. You agree that this receipt may be issued on your behalf. You will able to access your entire Trip history and relevant receipts on your Flash Account via the Flash App.
7.15. Should the Driver have any queries or disputes relating to payments and fees, the Driver may contact Flash via email at email address where Flash undertakes to attend to the issue as soon as reasonably possible.
8. REQUESTING AND CANCELLING OF TRANSPORTATION SERVICES
8.1. The Passenger’s Transportation Service request is deemed to be placed confirmed once you have accepted such Passengers Trip request.
8.2. Upon your acceptance of the request you confirm an undertaking to provide the Transportation Services to the Passenger, and the Passenger and Driver simultaneously enter into a contractual agreement for the provision of the Transportation Service in exchange for payment of the Passenger Fare.
8.3. Flash is not a party to the contractual agreement created between you and the Passenger, as Flash does not provide any Transportation Services that may give rise to such obligations.
8.4. In the event that a request for a Trip, which you have accepted, is subsequently cancelled, rejected or refused by a Passenger, a penalty fee may be payable to the you if a period of five or more minutes has elapsed since the time of acceptance of the Trip request. The penalty fee may be debited from the Passengers nominated bank account and collected by Flash on your behalf.
8.5. Should the Passenger elect to cancel, refuse or reject a Trip after the Trip request was accepted, for whatever reason so arising, this risk shall be deemed to be borne by the Driver and Flash will not be responsible for the nonfulfillment of any obligations arising from the contractual agreement to which Flash is not a party.
8.6. You will notify the Passenger through Flash App of your arrival at the specified Passenger pick up location, whereafter you may charge you an additional fee for any time spent waiting for the Passenger before the Trip commences as determined according to the rates on Flash App. Should the Passenger or any third person for whom the Transportation Service were ordered, fail to arrive at the Driver’s vehicle at the stipulated destination and time, the Trip shall be deemed to be cancelled after a period of eight minutes has lapsed.
9. RELATIONSHIP BETWEEN FLASH AND THE DRIVER
9.1. You acknowledge that Flash provides its Services merely as a platform to connect independent Drivers with Passengers through the Flash App, for purposes of the Driver providing public transportation services. You further acknowledge that you provide the Transportation Services independently as a professional driver in terms of the current regulations in force and effect in South Africa.
9.2. You agree that no employment relationship, joint venture or partnership exists between you and Flash nor shall such employment or similar relationship be created during the entirety of your use of Flash’s Services.
9.3. You acknowledge and agree that you may not act as an employee, representative or agent of Flash and nor shall you have any capacity or authority to contractually bind Flash. Should you be deemed to be an implied employee of Flash in terms of any laws or an employment relationship is otherwise deemed to exist, you acknowledge and agree that you have no claim against Flash in this regard.
10. LIABILITY
10.1. You agree that Flash shall not be liable for any consequential, indirect, incidental or special loss that result from your use of the Services, even if you have advised us of the possibility of such loss. Consequential loss includes pure economic loss, loss of profit, loss of business and likely loss whether direct or indirect.
10.2. You shall be liable for breach of these Terms or any other applicable regulation or law, including any penalty, fine, impoundment, or legal action that may be taken against you.
10.3. You agree to indemnify us against any loss, liability, cost, claim, action, demand or expense incurred or made against us in connection with the proper performance of your obligations except where that loss, liability, cost, claim, action, demand or expense arises from our negligence, fraud or willful default or that of our employees.
10.4. Due to the nature of the Services that Flash provides, as a facilitator, it cannot guarantee that usage of the Flash App will result in Transportation Service requests by Passengers. Furthermore, Flash cannot be liable for any actions, harm, damages or breach of agreement by a Passenger or other persons travelling in the Driver’s motor vehicle.
10.5. Flash’s Services do not provide for the brokerage of Transportation Services, nor does it act as a provider, operator or an agency in respect of providing transportation services.
10.6. Flash shall not be liable for any loss or damage to property belonging to the Passenger whilst using the Transportation Services, or if left in the vehicle after completion of the Trip. In such instances, the Passenger shall notify Flash and contact the relevant Driver to arrange for the return of any such belongings, the costs whereof shall be for the Passengers account. You agree to indemnify and hold harmless Flash and its officers, directors, employees and agents from all and any claims, losses, liabilities arising from or in connection to use of Flash Services.
10.7. Our failure to seek redress for violations, or to insist upon strict performance, of any condition or our failure to exercise any right or remedy to which we are entitled in these Terms, shall not constitute an implied waiver thereof.
11. WARRANTIES AND UNDERTAKINGS
11.1. Each time you make use of our Services, you represent and warrant to us that as the Driver:
11.1.1. You act as principal, in your own name, on your own behalf only for yourself and not on behalf of a third party as that party’s agent or representative.
11.1.2. You are fully authorised and legally entitled to accept these Terms.
11.1.3. You are of legal age of majority in the country in which you reside and have the requisite contractual capacity and legal standing to enter into this agreement and any contractual agreement arising therefrom, and to perform your obligations.
11.1.4. You will use the Services offered in these Terms, in good faith and will not perform any act, whether intentionally or negligently, to defraud or cause any direct or indirect loss, harm or damage to Flash.
11.1.5. You acknowledge your obligation to adhere to and comply with all tax obligations in terms of all applicable laws pertaining to your provision of the Transportation Services. You will comply with all applicable tax obligations however arising from and/or in connect with your provision of Transportation Services.
11.2. Flash makes a reasonable attempt to comply with the prevailing legislative framework and regulation in allowing the registration of Drivers on its App by bringing the requisite licencing and documentation to your attention when you register on Flash App.
11.3. By successfully registering on the Flash App, you warrant to us that your information and documentation is correct and valid; and that you have complied at all times with the prevailing regulation and requirements relating to the provision of public transportation that you have undertaken to provide, including, but not limited to the following valid items: –
11.3.1. Driving Licence;
11.3.2. Professional Driving Permit;
11.3.3. Motor vehicle licence and operating licence;
11.3.4. Roadworthiness Certificate; and,
11.3.5. Public liability insurance to the value of R 500 000.00 (five hundred thousand rand).
11.4. Flash may, from time to time, require you to furnish adequate proof of possession of the relevant valid licences and permits; and you warrant to us that you will furnish such proof immediately upon our request.
11.5. The Driver undertakes to ensure full compliance with all relevant and applicable tax regulations and laws prevailing in South Africa. You hereby agree to compensate Flash for any fines or penalties imposed on Flash in relation to your non-compliance with your tax obligations, or operational requirements in terms of South African legislation, and however arising.
12. SEVERABLITY
12.1. Should any part of these Terms be held by any court of competent jurisdiction to be unenforceable or illegal or contravene any rule, that part will be deemed to have been excluded from these Terms from the beginning and will be interpreted and enforced as though the provision had never been included and the legality or enforceability of the remaining provisions or the legality, validity or enforceability of this provision in accordance with the law and/ or regulation of any other jurisdiction, shall not be affected.
13. SECURITY AND CONFIDENTIALITY OF FLASH’S SERVICE
13.1. Flash may view, monitor, and record activity on our Website or App without notice or permission from the Driver.
13.2. You acknowledge that by using our Services that you will be providing us with personal data, which may be protected by data protection legislation, including amongst others, the Protection of Personal Information Act, No. 4 of 2013, (“POPI”). You authorise us to:
13.2.1. Process all such personal data;
13.2.2. Transmit any such personal data to any Affiliate for the purposes as set out in these Terms and in furtherance of our legitimate interests including statistical analysis, marketing of our Services and credit control; and,
13.2.3. Transmit any such personal data to any Affiliate for the purpose of marketing our Services and products and the Services and products of any of our Affiliates.
13.3. The Driver may not provide access or otherwise make available any Services offered by Flash, and the Driver undertakes to maintain adequate confidentiality over its Account by not sharing log in information and ensuring the use of virus-free devices in utilising Flash’s services.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. You acknowledge and agree that the copyrights, trademarks, service marks and all other intellectual property or other rights to any information distributed to or received by you whether sent by us or on our behalf, by any means (including but not limited to by Internet electronic communication or mobile phone), together with any advertising media, App, Website or other material connected to our Services that contain or constitute the information, will remain our sole and exclusive property.
14.2. We may provide you with stickers, labels, or other Flash branded products featuring the Flash workmark, vector or logo. Should you opt to use such products to indicate that your transportation services are facilitated via Flash’s platform, you agree that such use is non-exclusive, non-transferable and non-sublicensable. Should your Account be terminated, and/or you are no longer agreeing to these terms, you must immediately remove and dispose of any products that indicate or refer to the Flash brand.
14.3. You will not permit or facilitate, and will take steps to prevent any sale, re-distribution, dissemination, re-publication or re-display of the information referred to in this clause, however received, to any third party.
15. INDEMNITY
15.1. You agree to defend and indemnify Flash, Flash Nominees and all Affiliates, and hold them harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including attorneys’ fees and litigation expenses), relating to or arising from any breach by you of these Terms and any Applicable Law.
16. ASSIGNMENT
16.1. The terms and conditions will operate for the benefit of you and Flash, and is binding on you, us and our respective successors. You may not transfer or assign any of your rights or obligations herein to any third party, unless a director of Flash has agreed to the transfer in writing.
16.2. Flash may, without your approval, transfer or assign any part of its rights or obligations herein to any third party as of a date and on such terms notified to you.
17. DURATION
17.1. These Terms shall commence on the date on which Flash notifies you that you have been accepted as a Driver. The terms and conditions shall endure indefinitely until such time as it is terminated.
18. BREACH
18.1. Any Party may demand that a dispute be determined in Terms of this clause by written notice given to the other Parties in accordance with the Expedited Rules of the Arbitration Foundation of Southern Africa (“AFSA”).
18.2. This clause shall not prevent any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction, pending the decision of an arbitrator.
18.3. The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA should either Party, by written notice, require the arbitration to be held on an urgent basis. In such event either Party may apply to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
18.4. The arbitration shall be held –
18.4.1. at Cape Town;
18.4.2. with only the legal and other representatives of the Parties to the dispute present thereat; and otherwise in Terms of the Arbitration Act, No. 42 of 1965 (“Arbitration Act”), unless otherwise provided for herein.
18.5. The arbitrator shall be a practising advocate of the Cape Bar of at least ten years’ standing, appointed by agreement between the parties to the dispute, subject to clause 18
18.6. Should the Parties fail to agree on an arbitrator within 14 (fourteen) days after the giving of notice in Terms of clause 18.1, the arbitrator shall be appointed by the Chairperson of the Cape Bar Council (or by AFSA if the Cape Bar Council no longer exists), at the request of either Party to the dispute.
18.7. The Parties hereby consent to the jurisdiction of the High Court of South Africa in respect of the proceedings referred to in clause 18.8.
18.8. The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court referred to in clause 18.7, at the instance of any of the parties to the dispute.
18.9. The Parties agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
18.10. It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of clause 18.1 shall be resolved strictly in accordance with the provisions of this clause. The Parties accordingly agree and undertake as follows –
18.10.1. that it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act;
18.10.2. that it shall not make any application to court as contemplated in terms of section 20(1); and,
18.10.3. the periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of these terms.
19. FORCE MAJEURE
19.1. In this clause, “Force Majeure” means an event of fire, lightning, explosion, flood, hurricane, act of God, power outages, war, terrorism, civil disorder, epidemics, plagues, strikes; boycotts, and lock-outs of all kinds and go-slows, excluding boycotts, strikes, lock-outs and go-slows by or of the relevant Party’s own personnel, which are outside of the control of the relevant Party or any other event beyond the control of the Party affected by the event, provided in all cases that the relevant Party has taken all steps and precautions which could be reasonably expected for it to have taken in order to prevent such act or event occurring and in order to mitigate and minimise the effects of the event and furthermore that the relevant Party is not at fault.
19.2. In the event that Flash is affected by a Force Majeure, Flash will not be liable to the Driver for any default or delay in the performance of its obligations herein if and to the extent that such default or delay is caused by Force Majeure provided however, that Flash is without fault in causing such default or delay, and such default or delay could not have been prevented by Flash through the use of alternative sources, workaround plans or other means.
19.3. Flash shall notify the Driver as soon as reasonably possible of the occurrence or existence of a Force Majeure event or circumstance.
19.4. Flash may take reasonable steps that it considers necessary in addressing the Force Majeure, including, but not limited to: –
19.4.1. Changing or restricting any hours within which the Driver may utilise its Services;
19.4.2. Terminating or cancelling any transport requests; or,
19.4.3. Taking any action which, it deems to be appropriate in the circumstances having regard to its business and the Drivers generally.
20. AMENDMENTS
20.1. Flash shall be entitled to amend, add, supplement, or replace these Terms, at its sole discretion. Flash shall notify the User of any such amendment, addition or supplementation or replacement (“Amendment”) by:
20.1.1. Posting a notice of the Amendment on the Website or App and updating the relevant documents on the Website or App to reflect the Amendment; or,
20.1.2. Sending a written notice of the Amendment to the Driver.
20.2. The Amendment shall be effective on the date on which Flash notifies the Driver of the Amendment or on such later date as set out in the notice of the Amendment.
20.3. All Amendments of which the Driver has been notified in terms of this clause shall be binding on the Driver.
20.4. You acknowledge that the obligation herein lies with you to read and understand any Amendments to these Terms.
21. CHANGES AND SUSPENSION OF SERVICES
21.1. Flash expressly reserves its right to change, vary, disable, or discontinue its Services, without prior notice or liability to the Driver.
21.2. At any time, Flash may, in its discretion, suspend the provision and operation of Services to the Driver for any legitimate purpose, which may include attending to maintenance and upgrading of the Website, App and Services.
22. PROHIBITED USE OF SERVICES
22.1. In the event that you exhibit conduct in a manner as set out herein, we reserve the right to restrict, suspend or terminate your use and access to our Service. Accordingly, you agree that you will not:
22.1.1. Behave in a manner that is discourteous or disrespectful to Passengers.
22.1.2. Cause any damage or harm to Passengers or their personal possessions.
22.1.3. Make any unauthorized stops enroute to an input destination for a User.
22.1.4. Engage in any actions that seeks to undermine or manipulate the Flash Platform by attempting to derive a financial benefit in bad faith.
22.1.5. Upload files that contain viruses, corrupted files, or any other similar software or programmes that may damage the operation of another’s device.
22.1.6. Inhibit or negatively affect the provision of Services provided by Flash, in any manner.
22.1.7. Utilise the Services in order to benefit, aid or otherwise support any illicit and illegal activities, including, inter alia, fraud, money laundering, gambling or terrorist activities.
22.1.8. Provide false, inaccurate or misleading information.
22.1.9. Violate any law, regulation, contract or rights relating to third parties in utilising our Services.
22.2. Flash reserves the right, at all times, to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Flash’s sole discretion.
23. TERMINATION
23.1. Flash reserves the right, in its sole discretion, to terminate your access to the Flash App and the related Services or any portion thereof at any time, without notice.
23.2. Flash may immediately prohibit you from further registering any additional Accounts on the App should we suspect that you have infringed the Terms as set out herein, and/or engaged in any prohibited activities.
24. CLOSURE OF ACCOUNT
24.1. The Driver is entitled to close his Account and cancel the use of our Services at any time upon request. Thereafter, Flash shall delete the Driver’s Account within 5 (five) days.
25. GENERAL
25.1. These Terms constitute the entire agreement between the Parties insofar as they relate to the subject matter hereof.
25.2. Save as may be expressly set out herein, no agreements, representations, or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
25.3. No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation herein, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights in enforcing the obligations of the other Party in terms hereof.
25.4. No addition, alteration, cancellation or variation of these Terms, and no waiver of any right arising hereof, or its breach or termination shall be of any force or effect unless reduced to writing by Flash. It is expressly recorded that the provisions of the Electronic Communications and Trades Act, No. 25 of 2002, shall not apply to the provisions of this clause.