My Thrive (Pty) Ltd (on behalf of Thrive) Registration number: 2023/826669/07 (a division of Momentum Metropolitan Life Limited (1904/002186/06) (hereinafter referred to as “Thrive”) Terms of Use
Important Notice
1. Definitions
1.1. In these Terms of Use the following words shall have the meanings given to them.
1.1.1. “Additional Terms” means any additional guidelines, rules and/or policies applicable to your use of the Application and related goods and/or Services that may be published on the Application from time to time, which will apply in addition to these Terms of Use;
1.1.2. “Affiliates” mean any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to Subsidiaries and associates that directly or indirectly, Control, are Controlled by, or are under common Control with a Party. For purposes of this Agreement, the term “Subsidiaries” shall have the meaning ascribed thereto in the Companies Act 71 of 2008, as amended;
1.1.3. “Content” means various forms of content supported by the Application from time to time, including but not limited to images, sound clips, video clips and news;
1.1.4. “Intellectual Property” means all intellectual property rights, howsoever arising and in whatever tangible or intangible media including (without limitation) patents, rights to inventions, utility models, copyright, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, domain names, topography rights, moral rights, business processes, rights in confidential information (including trade secrets and know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the word;
1.1.5. “Thrive” is a strategic initiative that forms part of the MML umbrella, intended to drive personal growth by building awareness of self-care, connecting individuals to content and activities that seeks to encourage sustained leisure and recreation uptake amongst digitally savvy users; and means My Thrive (Pty) Ltd (on behalf of Thrive) (Registration number: (2023/826669/07) (a division of Momentum Metropolitan Life Limited (1904/002186/06) and any of its Affiliates or subsidiaries validly incorporated in accordance with the company Laws of South Africa with usual place of business at 268 West Avenue, Centurion, Pretoria, 0157;
1.1.6. “The Thrive Application” means the software made available by Thrive for installation and use on supported mobile devices or personal computers to use the services;
1.1.7. “User” means a user of the Application and includes Guests and Registered Users. For purposes of greater clarity:
1.1.7.1. “Guest” refers to a User that is not registered on the Application, and which accordingly have limited rights of usage and access;
1.1.7.2. “Registered Users” refers to a User that is registered on the Application as such;
1.1.8. “the Application” refers to the mobile application related to Thrive’s requirements.
1.1.9. “Services” means the products and services provided by Thrive from time to time, including, but not limited to, services provided via the Application, based on the assessment and interpretation of subjective and objective data sources in order to create a score and visual representation of how a User is doing across various areas in his/her life;
1.1.10. ”Terms of Use” means these terms and conditions, which regulate your use of the Application, and the Services;
1.1.11. “User Account” refers to the account (or ‘profile’) you create with Thrive to enable you to use the Services.
1.1.12. “Law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has force of law in the Republic of South Africa;
1.1.13. “Person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;
1.1.14. a “Party” includes a reference to that Party’s successors in title and assignees allowed at law;
1.1.15. “Personal Information” means the term as defined in Chapter 1 of the Protection Of Personal Information Act 2013 (“POPI Act”)1.2. In these Terms of Use any reference to:
1.1.15.1. the singular includes the plural and vice versa;
1.1.15.2. natural Persons includes juristic Persons and vice versa;
1.1.15.3. any one sex or gender includes the other sexes or genders, as the case may be;
1.2. “including” (or words of similar meaning) means to include without limitation and “include” shall have a corresponding meaning;
1.3. The words “shall” and “will” and “must,” used in the context of any obligation or restriction imposed on a Person in these Terms of Use, has the same meaning.
1.4. Except insofar as these Terms of Use state otherwise, the relevant definitions of the Electronic Communications and Transactions Act, No. 25 of 2002 (hereafter simply ‘ECTA’), Consumer Protection Act, No. 68 of 2008, and the Protection of Personal Information Act, No. 4 of 2013, will apply herein.
1.5. The clause headings in this document have been inserted for convenience only and will not be taken into consideration in the interpretation of this document.
1.6. Reference to months or years shall be construed as calendar months or years.
1.7. No provision herein shall be construed against or interpreted to the disadvantage of any party hereto by reason of such party having or being deemed to have structured, drafted or introduced such provision.
1.8. Whenever the term “including” is used followed by specific examples, such examples shall not be construed so as to limit the meaning of that term.
2. Terms of Use
2.1. Your use of the Application and of our Services shall at all times be subject to these Terms of Use and any Additional Terms which may be applicable from time to time.
2.2. Thrive reserves the right to amend these Terms of Use and to publish or amend any Additional Terms at any time, with the new or amended terms coming into force on the date of publication on the Application. It is your responsibility to continually stay abreast of changes to the Terms of Use, and any Additional Terms which apply to you that may be published from time to time in our latest Application.
2.3. If there is any conflict between the Additional Terms and these Terms of Use, these Terms of Use will prevail, unless otherwise stated in the relevant Additional Terms and provided that any terms of Thrive will prevail against any conflicting third-party terms.
2.4. The date of publication at the end of these Terms of Use shall be prima facie proof of the date of publication and contents of the particular version of the Terms of Use.
3. Eligible Persons
3.1. Unless otherwise stated by Thrive in writing, you must be at least 18 (eighteen) years old to make use of the Application, and the Services.
4. Use and licence
4.1. The Intellectual Property rights in the Application, and the Services are owned by Thrive and include any applications or renewals of such rights and are protected by intellectual property laws. This includes (without limitation) any compilation of such Intellectual Property rights which is likewise the property of Thrive and are protected by applicable law.
4.2. The trade names and branding associated with the Application are related to the goodwill of Thrive and its affiliated companies and may not be used in any manner without our prior written permission. All other Intellectual Property not owned by Thrive that appears on the Application, or the Services are the property of their respective owners.
4.3. Your use of the Application and the Services is for lawful use only, and you agree not to use the Application, or Services to operate any commercial activities or to promote any products or services, other than expressly authorised by Thrive in writing.
4.4. Thrive grants you a non-exclusive, non-transferable, revocable licence to download and install the Application on a mobile device, personal computer or other supported device for the sole purpose of using the Services provided by Thrive.
4.5. You may not do anything in respect of the Application or the Services unless these Terms of Use expressly permit you to do so. Without limiting the general nature of this prohibition, you may not distribute, sell, grant sub-licences or grant any rights to another person, nor render any services in respect of the Application or the Services and you may not modify, reverse engineer, decompile, hack or create a derivative work from it.
4.6. Unless otherwise specifically agreed thereto in writing, Thrive is under no obligation to release new versions of the Application, nor to support any older version of the Application.
4.7. Thrive may communicate with you and/or send you information messages via the Application and the Services or to your email address from time to time, provided that this is done in accordance with our Privacy Policy.
4.8. You should not choose brand names or trademarks as your username and/or display name since the Intellectual Property rights in such names do not belong to you. Thrive reserves the right, using its reasonable discretion, to take over any User's username and/or display name at any time (without compensation), should it require such username and/or display name for any reason whatsoever, including should Thrive be requested to do so by the owner of a brand name or trademark. In such an event, Thrive will contact the User and notify the User that it requires the username and/or display name in question. In such event, Thrive shall save the User's account to a mutually agreed replacement username and/or link same to a mutually agreed replacement display name.
4.9. All rights not expressly granted to you in these Terms of Use shall remain reserved in favour of Thrive.
5. Personal Information
5.1. Your personal information
You have a say in how we treat your personal information. Thrive abides by confidentiality principles and the Protection of Personal Information Act, and need your consent to use your information and to share it with our partners and contracted service providers who are legally bound to the same principles.
5.2. Your rights and responsibilities
5.3. Our responsibilities
Thrive will take reasonable steps to protect the personal information supplied by you from loss, misuse, or unauthorised alteration in accordance with the relevant data protection laws.
The Privacy Policy may be found at https://www.mythrive.co.za/privacy-policy/. We shall take all reasonable steps to protect the personal information of users.
6. Registration for and Use of Services
6.1. In order to make use of some of the Services provided through the Application you will have to register a User Account
6.2. Through registration, you warrant and represent that:
6.2.1. any and all information you submit as part of the process to become a User is true and correct and that you are the legitimate owner of such information, including (but not limited to) your date of birth, sex, location, first & last name, cell phone number and contact details;
6.2.2. you are the legitimate owner of (or that have obtained the necessary license or permission in respect of) any content or images that you Upload via the Application;
6.2.3. you have the right, authority and capacity to enter into and be bound by the Terms and that by using the Application you will not be violating any Law or regulation of the country in which you are resident. You are solely responsible for your compliance with all applicable local Laws and regulations;
6.3. You hereby agree that Thrive has the right to disclose aspects of your identity to any third party who is able to show on a prima facie basis that any Content posted or uploaded by you to the Application constitutes a violation of their intellectual property rights, their right to privacy or any other Law.
6.4. It is your responsibility to ensure the secrecy of your User Account’s registration details, including but not limited to your username and/or display name, password and contact details.
6.5. Any activity on the Application or the Services authenticated with your login credentials shall be deemed binding on and attributable to you personally.
6.6. Unless otherwise agreed in writing, we may suspend or terminate access to the Application or the Services without notice to you. In addition, we reserve the right to revoke any privilege or access granted to you without prior notice to you and in our sole discretion.
6.7. You may not give your username and password to someone else to log on to your User Account or to access the Services using your User Account or authorise another Person to do so.
6.8. You agree that you are responsible for the security of your mobile device, or any other device used to access the Application, and/or the Services.
6.9. You agree to notify Thrive immediately in writing when you become aware of any unauthorised use of your User Account or other breach of security or attempted breach of security.
6.10. If your use of the Services is dependent on using a mobile device, personal computer or bandwidth of another Person, you hereby represent that you have received that Person's permission.
6.11. The User will be liable for any costs incurred by making use of the Services offered on the Thrive Application and will therefore remain responsible and liable for such payment to third party suppliers, hereby assuming the risk that payment will be duly and fully made to the third party supplying the Services, and will make use of the facilities available used by the respective third party.
7. Availability of Services
7.1. You hereby acknowledge and agree that your use of the Application, and the Services are entirely at your own risk.
7.2. Thrive does not warrant that you will always be able have access to the Services and Content.
7.3. Whilst we endeavour to ensure that the Application and the Services are always accessible, and messages delivered, we make no warranties or representations as to the accuracy and correctness thereof, level of uptime, the speed of access that can be expected or that messages and communications will be posted and/or delivered.
7.4. It is your responsibility to acquire the hardware and Internet connectivity necessary to access the Services and you are responsible for paying all fees that are due in respect of the hardware, mobile and the Internet connectivity and bandwidth consumed while accessing the Application, and the related Services.
7.5. The capabilities of your mobile device may limit the availability of some features and Services to you or may mean that certain Content cannot be played or displayed on your mobile device.
7.6. Thrive may suspend the Services for any reason, including for repairs or upgrades to any of our systems, and we may suspend your account pending any investigation into a possible breach by you of these Terms of Use.
7.7. Thrive may decide to change the features and technical aspects of the Application, or the Services. Such changes may cause interruptions to the Services and may require you to make changes to the settings on your mobile device or to your personal computer, including but not limited to the downloading of an updated version of the Application.
7.8. Whilst we endeavour to ensure that all information and content, which is published or made available on the Application is accurate and complete, subject to any and/or all applicable Laws within the Republic of South Africa, we make no warranties or representations, whether explicitly or impliedly about the accuracy, reliability, completeness or timeliness of information and content, which published or provided, relating to –
7.8.1. any component of Service offered by a third party on the digital platform, or that the User will be able to have access to or continue to have access to the service or that such access will be continuous and/or uninterrupted; and/or
7.8.2. the quality of reception by the User of the information Service, or any aspect thereof, as Thrive cannot be responsible or liable for electronic media or conveyance through, on and/or via such electronic means as these factors are and will be beyond its control; and/or
7.8.3. that the software used to provide the selected service including any software applications, is virus or error-free, flawless or without fault; and/or
7.8.4. that the Services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third-party rights, be secure and reliable, or will conform to its delivery timeline requirements.
7.9. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY AGREE TO RELEASE MML AND ALL ITS AFFILLIATES, INCLUDING BUT NOT LIMITED TO MULTIPLY AND THRIVE FROM LIABILITY RELATED TO ANY CLAIM, LOSS, INJURY OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR THROUGH THE APPLICATION, THE WEBSITE OR THE SERVICES, WHETHER DIRECT OR INDIRECT INCLUDING, WITHOUT LIMITATION, ANY LIABILITY RELATING TO ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR LOST DATA, OR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
7.10. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD MML AND ALL ITS AFFILLIATES, INCLUDING BUT NOT LIMITED TO MULTIPLY AND THRIVE, ITS AFFILIATES, RELATED COMPANIES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS, LICENSORS AND ANY OTHER PARTNERS AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, EXPENSES, DAMAGES, ACTIONS, DEMANDS, LIABILITIES OR COSTS, RESULTING OUT OF THE CONTENT OR INFORMATION PUBLISHED OR MADE AVAILABLE ON THE APPLICATION, OR YOUR USE OF THE APPLICATION, THE WEBSITE OR THE SERVICES.
8. Unauthorised Conduct
8.1. You may not monitor, intercept or modify any communication that is not addressed to you or to your User Account.
8.2. You may not use any harmful or malicious code, including (without limitation) viruses, Trojan horses, worms or spiders, to interfere with or access any data, communications or software associated with the Services, the Application, or any of the Services or Content otherwise owned by Thrive.
8.3. You may not send any unsolicited communication to Thrive or to any User, whether such unsolicited communication is sent to the User's User Account or to any other address of such User.
8.4. You may not use the Services in such a manner as to threaten, harass, embarrass, or invade the privacy of any person or to contravene any applicable law or regulation.
8.5. You may not impersonate any other User or any other person, and you may not use another person's username and password to access another User's account, nor may you access or assume another User's profile. You may not use or distribute the images taken by and/or belonging to any other person via the Application in any manner without such person's consent.
8.6. Other than as may be authorised by Thrive in writing and bona fide public search engines generally, you may not programmatically access any Services using an electronic or other automated means used independently to initiate an action or respond to data messages or performances in whole or in part, including (without limitation) any web spiders, crawlers, or similar technologies.
8.7. You are notified that it is a criminal offence to gain unauthorised access to any restricted areas of the Website or to otherwise interfere with the proper functioning thereof.
9. Breach and termination
9.1. If you are found or are believed to violate any of your obligations as described in these Terms of Use as determined by Thrive in its sole and absolute discretion, Thrive, without limiting or prejudice to any other right, warranty or indemnification that may be granted to it under these Terms of Use, cancel any right, privilege or entitlement you may have hereunder immediately and without prior notice to you, suspend your access to the Services, remove any Content Uploaded by you and/or ban you for such period as Thrive may deem fit from using the Services and/or take such other steps as Thrive may (its sole and absolute discretion) deem reasonable under the circumstances.
9.2. If Thrive terminates your User Account as provided for in these Terms of Use, any licence(s) granted to you hereunder will also terminate at the same time and you will immediately stop using the Application, and the Services.
10. Privacy
The terms of Thrive’s Privacy Policy are hereby incorporated into these terms by reference. The Privacy Policy may be found at https://www.mythrive.co.za/privacy-policy/. We shall take all reasonable steps to protect the personal information of users.
11. Jurisdiction, Enforceability and Limitation of Liability
11.1. These Terms of Use shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. You agree that any disputes arising from these Terms of Use will be submitted to arbitration to be held in Cape Town, South Africa in accordance with the expedited rules of the Arbitration Foundation of South Africa.
11.2. You hereby agree that, in the instance where Thrive is liable to you, the cumulative maximum liability of Thrive, all claims, actions, demands and proceedings of whatever nature and however arising (including, without limitation, for breach of contract, in delict, for all acts and omissions, and for negligence) shall in total be limited to the total value of payments made to Thrive.
11.3. All references to Thrive and Momentum include reference to their shareholders, promoters, employees, representatives, directors, agents, advisers, and subcontractors.
11.4. Thrive, including any of its Affiliates, employees, directors or officers, shall not be held liable for any loss, harm or damages suffered, whether direct or indirect, special, punitive, incidental or consequential, as a result of the information, content, published or made available on the Thrive Application or for the non-performance of Services offered by a third party service provider on the Thrive Application, or Services no longer being available to Users, or otherwise arising out of or in any way connected with the use of, or the inability to use, these Services or any material or information contained in, accessed through these services or the Thrive Application, and you hereby indemnify Thrive and its Affiliates, employees, directors or officers.
11.5. Each provision of these Terms of Use shall be severable from the other provisions. Should any provision be found by a Court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions of these Terms of Use shall nevertheless remain binding and continue with full force and effect.
12. Notices
12.1. Thrive hereby selects the address indicated in clause 17 below as its address for the service of all formal notices and legal processes in connection with these Terms and Conditions (“legal address”). Thrive change this address from time to time by updating these Terms and Conditions.
12.2. If applicable, you hereby select the delivery address specified with your order as your legal address, but you may change it to any other physical address by giving Thrive not less than 7 days’ notice in writing.
12.3. Notices must be sent either by hand or email and must be in English. All notices sent -
12.3.1. by hand will be deemed to have been received on the date of delivery;
12.3.2. by email will be deemed to have been on the date indicated in the “Read Receipt” notification. All email communications between you and Thrive must make use of the ‘Read Receipt” function to serve as proof that an email has been received.
13. General
13.1. You may not cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of these Terms of Use without the prior written approval of Thrive.
13.2. Any failure on the part of you or Thrive to enforce any right in terms hereof shall not constitute a waiver of that right.
13.3. If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
13.4. These Terms of Use constitute the whole agreement between you and Thrive relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of these Terms of Use not incorporated in these Terms of Use shall be binding on any of the parties.
13.5. No indulgence, leniency, or extension of a right, which may be granted or shown to you shall in any way prejudice Thrive or preclude Thrive from exercising any of the rights that it has derived from these Terms of Use or be construed as a waiver by Thrive.
13.6. Thrive may, in its sole discretion, change this agreement or any part thereof at any time without notice.
14. Information
For the purposes of ECTA, Thrive’s information is as follows, which should be read in conjunction with its product descriptions and other terms and conditions contained on the Website or the Application:
Date of First Publication of this Version: 8 February 2024