FLASH SA (PTY) LTD
Terms and Conditions for Passengers
*last updated on 28 October 2022
1. DEFINITIONS
1.1. “Driver” 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 Passenger on our electronic application, which profile shall contain the Passenger’s relevant personal information linked to the active Flash Account including, but not limited to, the Passenger’s full contact details and verified payment information for purposes of Flash In-App payments.
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 is facilitated 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”, “User”, or “you” 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 Passenger, or both as read in the appropriate context.
1.11. “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.
1.12. “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.
1.13. “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.
1.14. “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.
1.15. “Website” means Flash’s online domain accessible through “www.flashapp.co.za”.
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 Passenger 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 Flash Services.
3. USE OF THE FLASH APP
3.1. Flash provides e-hailing online platform and technology-based mobile application services to users with the view to facilitate the connection between Drivers and Passengers, and Flash does not provide 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 the engagement between Passenger and Drivers who provide Transportation Services.
3.3. Flash is authorised by Drivers to facilitate the relationship between the Driver and Passengers through the Flash App and Platform.
3.4. To use Flash App, Passengers are required to register a Flash Account and upon successful registration on Flash App, the Passenger is able to enter a request for Transportation Services and select an appropriate service offering, namely: –
3.4.1. Flash Standard Service;
3.4.2. Flash Plus Service; or,
3.4.3. Flash Premium Service.3.5. Flash App will search for an available Driver to attend to the request. Flash does not provide any Transportation Services, in and of itself.
3.6. 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.
3.7. 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.
3.8. Flash may allow Users to maintain a Flash Account for as long as the Passenger agrees, complies and accepts the Terms as set out herein, and as may be amended from time to time. Users 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.
3.9. The Passenger undertakes in good faith to at all times remain respectful of Drivers and engage in the Transportation Services in a manner that is courteous, considerate and in the spirit of any Flash Passenger guidelines and policies.
3.10. Though Flash cannot guarantee the quality of Transportation Services provided by Drivers, we request that you notify us of any unpleasant or offensive experiences during your Trip.
3.11. Upon the conclusion of a Trip, the Passenger will be prompted to complete a review of the Transportation Services rendered by the Driver. This allows Flash to consider your experience and provide feedback to the relevant Driver in performance of the Drivers obligations and services to you.
3.12. Passengers, 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.
4. DATA AND CHANGES TO PERSONAL INFORMATION
4.1. 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 using the Flash In-App Payment. You may be required to validate your identity as well as your contact and payment information.
4.2. Accordingly, you consent to Flash processing this information and agree at all times to maintain an accurate and up-to-date Flash Account profile reflecting your current contact information, physical address and/or relevant valid payment details.
4.3. 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.
4.4. Flash will keep a record of the relevant data and information relating to the User’s Trip information and the Trip receipt reflecting such information and total Passenger Fare will be sent directly to the User’s chosen email address at the conclusion of the Trip.
5. PAYMENT OF PASSENGER FARES AND USE OF PROMOTIONAL CODES
5.1. You have the option of selecting from two payment methods for purposes of making payment of the Passenger Fare to Driver. Payment may be effected to the Driver either by way of the Flash In-App Payment method processed though Flash App by our third-party payment provider, or you may select a cash payment offer.
5.2. 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 charges and taxes per transaction as third-party payment costs or bank charges, and Flash is not responsible for any such additional transactional costs.
5.3. Using Flash’s In-App Payment service requires Flash to act as a commercial agent to Drivers providing Transportation Services. Your payment obligation is still owed to the Driver and shall be discharged upon 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 your payment and then pay over such payment to the Driver.
5.4. The Passenger remains solely responsible for ensuring that you maintain sufficient available funds and that payment in this manner is successfully effected through Flash In-App Payment.
5.5. The Passenger Fare estimation is calculated through Flash App upon automated means of mapping the anticipated route. A final Passenger Fee is determined upon drop-off of the Passenger at your inserted end destination. However, this final fee may include, but are not limited to, certain ancillary costs such as high-demand surcharges, booking fees and tolls.
5.6. At the completion of your Trip, you have a discretion to tip your Driver a gratuity, in addition to the Passenger Fare, through the App or in cash. The Driver will receive and benefit 100% of the tip, 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.
5.7. In the event that the Flash In-App Payment option is selected, Flash is authorised by the Driver to accept such payments from the Passengers on the Drivers behalf and then tender such payment on to the relevant Driver.
5.8. In line with the provision of Transportation Services rendered by the Driver, your obligations will only be discharged upon payment of the Passenger Fare where the payment instruction has been given for the transfer of funds electronically through Flash App successfully, or the correct amount in cash has been tendered to the Driver. As the Passenger, you undertake to ensure that you have sufficient funds, whether in cash or in your bank account, to fulfil your obligations to the Driver upon completion of the Trip.
5.9. All Passenger Fares are due for payment immediately upon completion of the Trip and Flash will facilitate the payment using your preferred payment method selected for the Trip. To complete this process, Flash will send you the Trip invoice reflecting the Trip details via email.
5.10. From time to time, Flash may offer promotional codes to Passengers for the application of a discount towards the Passenger Fare. If the Passenger Fare amount is greater than the amount discounted, the balance of the Passenger Fare will be allocated to your Trip and you will be liable for this payment via your chosen payment method.
5.11. Only one promotional code may be utilised per Trip, and credited to one particular Trip without the option to redeem excess credit to another Trip.
5.12. Flash is entitled to cancel any promotional code for whatsoever reason at any time.
5.13. Should the Passenger have any queries or disputes relating to payments, the Passenger may contact Flash via email at email address where Flash undertakes to attend to the issue as soon as reasonably possible.
6. REQUESTING AND CANCELLING OF TRANSPORTATION SERVICES
6.1. A Passengers request for Transportation Services is deemed to be placed and confirmed once a Driver has accepted such Passenger’s Trip request.
6.2. Upon the confirmation of the Driver’s undertaking to provide the Transportation Services required to complete the Trip, 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.
6.3. Flash is not a party to the contractual agreement created between you and the Driver as Flash does not provide any Transportation Services that may give rise to such obligations.
6.4. In the event that a request for a Trip, which has been accepted by a Driver, is subsequently cancelled, rejected or refused by you, a penalty fee may be payable to the Driver if a period of five or more minutes has elapsed since the time of the Drivers acceptance of the Trip request. The fee will be automatically debited from your nominated bank account associated with and linked to your Flash Account.
6.5. Should the Driver elect to cancel a Trip after having accepted your Trip request, for whatever reason so arising, this risk shall be deemed to be borne by the Passenger and Flash will not be responsible for the nonfulfillment of any obligations arising from the agreement created between you and the Driver.
6.6. You will be notified on Flash App of the Driver’s arrival at your specified Passenger pick up location, whereafter the Driver may charge you an additional fee for any time spent waiting for you before the Trip can commence 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 canceled after a period of eight minutes has lapsed.
7. ADDITIONAL PENALTY FEES
7.1. If, at any time during the provision of Transportation Services, the Passenger causes damage or proprietary harm to the Driver’s vehicle or its interior, the Driver may charge a penalty fee of up to R 5 000.00 (five thousand rand) and require the Passenger to make payment of any damages exceeding such penalty.
7.2. In the event that Flash receives an incident report relating to any damage to the Driver’s vehicle and/or property caused by you or resulting from the use of Flash Services on your Flash Account, Flash reserves the right to verify such incident report in its reasonable discretion and to facilitate payment from you for the reasonable cleaning costs or repair costs on behalf of the Driver.
7.3. The Driver may cede such a claim for damages to Flash who may elect to pursue any such claim on the Driver’s behalf against the Passenger.
8. LIABILITY
8.1. You agree that Flash shall not be liable for any consequential, indirect, incidental or special loss that may result from your use of Flash 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.
8.2. You agree to indemnify and hold us harmless 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.
8.3. Due to the nature of the Services that Flash provides, and despite Flash’s effort to ensure effective screening of competent and respectful Drivers, Flash cannot make any guarantees relating to the quality of the Driver’s provision of Transportation Services. As the Transportation Services depend on the quality and availability of the Drivers and their performance, Flash makes no guarantees in respect of such quality of performance or availability of Transportation Services.
8.4. Flash Services do not provide for the brokerage of any transportation services, nor does we act as a provider, operator or an agency in respect of providing any transportation services.
8.5. 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.
8.6. 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.
9. WARRANTIES AND UNDERTAKINGS
9.1. Each time you make use of our Services, you represent and warrant to us that as the User: –
9.1.1. You act as principal, in your own name, on your own behalf only for yourself for private use and not on behalf of a third party as that party’s agent or representative.
9.1.2. You are fully authorised and legally entitled to accept these Terms.
9.1.3. 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 perform your obligations.
9.1.4. You will use the Flash Services offered as set out in these Terms, in good faith and you will not perform any act, whether intentionally or negligently, to defraud or cause any direct or indirect loss, harm or damage to Flash.
10. SEVERABLITY
10.1. 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.
11. SECURITY AND CONFIDENTIALITY OF FLASH’S SERVICE
11.1. Flash may view, monitor, and record activity on our Website, Flash App and/or Flash Platform without notice or permission from the Users.
11.2. 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:
11.2.1. Process all such personal data;
11.2.2. 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,
11.2.3. 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.
11.3. The User may not provide access or otherwise make available any Services offered by Flash, and the User 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.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. 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, Website or other material connected to our Services that contain or constitute the information, will remain our sole and exclusive property.
12.2. 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.
13. INDEMNITY
13.1. 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.
14. ASSIGNMENT
14.1. 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.
14.2. 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.
15. DURATION
15.1. These Terms shall commence on the date on which Flash notifies you that you have been accepted as a User. The Terms and conditions shall endure indefinitely until such time as it is terminated.
16. BREACH
16.1. 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”).
16.2. 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.
16.3. 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.
16.4. The arbitration shall be held: –
16.4.1. At Cape Town;
16.4.2. 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.
16.5. 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 16.6.
16.6. Should the Parties fail to agree on an arbitrator within 14 (fourteen) days after the giving of notice in Terms of clause 16.1, 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.
16.7. The Parties hereby consent to the jurisdiction of the High Court of South Africa in respect of the proceedings referred to in clause 16.8.
16.8. 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 16.7, at the instance of any of the parties to the dispute.
16.9. 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.
16.10. It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of clause 16.1 shall be resolved strictly in accordance with the provisions of this clause. The Parties accordingly agree and undertake as follows: –
16.10.1. That it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act;
16.10.2. That it shall not make any application to court as contemplated in terms of section 20(1); and,
16.10.3. The periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of these terms.
17. FORCE MAJEURE
17.1. 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.
17.2. In the event that Flash is affected by a Force Majeure, Flash will not be liable to the Passenger 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.
17.3. Flash shall notify the User as soon as reasonably possible of the occurrence or existence of a Force Majeure event or circumstance.
17.4. Flash may take reasonable steps that it considers necessary in addressing the Force Majeure, including, but not limited to: –
17.4.1. Changing or restricting any hours within which the User may utilise its Services;
17.4.2. Terminating or cancelling any transport requests; or,
17.4.3. Taking any action which, it deems to be appropriate in the circumstances having regard to its business and its Users generally.
18. AMENDMENTS
18.1. 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:
18.1.1. 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,
18.1.2. Sending a written notice of the Amendment to the User.
18.2. The Amendment shall be effective on the date on which Flash notifies the User of the Amendment or on such later date as set out in the notice of the Amendment.
18.3. All Amendments of which the User has been notified in terms of this clause shall be binding on the User.
18.4. You acknowledge that the obligation herein lies with you to read and understand any Amendments to these Terms.
19. CHANGES AND SUSPENSION OF SERVICES
19.1. Flash expressly reserves its right to change, vary, disable, or discontinue its Services, without prior notice or liability to the User.
19.2. At any time, Flash may, in its discretion, suspend the provision and operation of Services to the User for any legitimate purpose, which may include attending to maintenance and upgrading of the Website, App and Services.
20. PROHIBITED USE OF SERVICES
20.1. 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:
20.1.1. Withhold payment for the provision of Transportation Services.
20.1.2. Behave in a manner that is discourteous or disrespectful of Drivers.
20.1.3. Cause any damage or harm to Drivers or their motor vehicles.
20.1.4. Upload files that contain viruses, corrupted files, or any other similar software or programmes that may damage the operation of another’s device.
20.1.5. Inhibit or negatively affect the provision of Services provided by Flash, in any manner.
20.1.6. 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.
20.1.7. Provide false, inaccurate or misleading information.
20.1.8. Violate any law, regulation, contract or rights relating to third parties in utilising our Services.
20.2. 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.
21. TERMINATION
21.1. Flash reserves the right, in its sole discretion, to terminate your access to the Flash App and the related Flash Services or any portion thereof at any time, without prior notice.
22. CLOSURE OF ACCOUNT
22.1. The Passenger is entitled to close the Flash Account and cancel the use of our Services at any time upon request. Thereafter, Flash shall delete the User’s Flash Account within 5 (five) days.
23. GENERAL
23.1. These Terms constitute the entire agreement between the Parties insofar as they relate to the subject matter hereof.
23.2. 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.
23.3. 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.
23.4. 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.