Thank you for visiting sme.africa, a platform (or hosted application) that provides business owners with tools to help them start, manage and grow their businesses. These Terms are the general terms of the relationship between you and us. These Terms cover the use of sme.africa, including any of our other marketing material. By visiting and using, signing up on, or logging into sme.africa, you accept and agree to these Terms.
DEFINITIONS AND INTERPRETATION
Definitions. In the Agreement:
- Affiliate means any parent company, subsidiaries, joint ventures, or other companies under a common control;
- Agreement means the agreement between you and us, consisting of the Terms the parties enter into;
- Content means any content added to sme.africa by a User. Content includes photos, images, audio files, text, files, listings, postings, messages, or other materials;
- Effective Date means the date the User registers with us;
- EULA means an end user license agreement;
- Fees means the monthly fee that Users will pay to us in respect of Services we provide;
- Services means any and all services that we provide to you on the sme.africa platform from time to time;
- Service Levels means the levels according to which we will provide each Service as agreed by the parties;
- Sign means the electronic acceptance of the duly authorised representative of a party;
- Terms means these terms, consisting of:
- 2. any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, (including any that may be applicable to a specific section or module of sme.africa or any specific Services)
- User or you means any natural or juristic person who/which registers with sme.africa;
- We, us and/or our means SME Africa Online Solutions (Pty) Ltd trading as sme.africa;
- Writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (such as pdf), but excludes information or data in the form of email.
- sme.africa means www.sme.africa, a platform (or hosted application) that provides business owners with tools to help them start, manage and grow their businesses, including:
- 1. all content, services, modules, applications or apps available through sme.africa; and,
- 2. any of our other marketing material;
Interpretation. A word defined in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
The Terms commence on acceptance and continue until terminated.
USE OF SME.AFRICA
License to use sme.africa. We grant you a limited, revocable licence to use sme.africa subject to the Agreement. Any person wishing to use sme.africa contrary to the Agreement must obtain our prior written consent.
Policies. We may establish general polices and limits concerning the use of sme.africa. We may log off, deactivate, or delete any User account.
Framing. No person, business, or website may frame sme.africa or any of its pages.
Linking. A person, business, or web site may link to sme.africa only by linking to its home page. We prohibit anyone from deep linking to any other pages in a manner that would incorrectly suggest endorsement or support of them by us or suggests the person is the owner of any intellectual property belonging to us.
Spiders and Crawlers. No person, business, or website may use any technology (including spiders or crawlers) to search and gain any information from sme.africa.
We may modify, suspend, or discontinue sme.africa or any Services (with or without notice) and will not be liable.
Passwords and Security. Only a registered User can use sme.africa. Each User is responsible for keeping their password secure. Each User is solely responsible and liable for activities that occur under their account. You authorise us to act on any instruction given under your account, even if it transpires that someone else has defrauded both you and us, unless you have notified us prior to us acting on a fraudulent instruction.
Users. User accounts registered by bots or other automated methods are not permitted. Each User must provide their full legal name, a valid email address, and any other information requested in order to complete the registration process. One person may only use each User’s login – We do not permit multiple people to share a login.
CAPACITY OF USER
You represent and warrant that you:
- 1. are old enough under applicable law to enter into the Agreement;
- 2. are legally capable of concluding any transaction;
- 3. possess the legal right, full power, and authority to enter into the Agreement;
- 4. are authorised to use the password required for any account; and
- 5. will submit true, accurate and correct information to us and this web site.
If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the Agreement or that you have obtained legal status in another manner.
The Expert (a module): Each User can ask a maximum of 3 new questions per month. These questions should be for the benefit of the User and not for any party that is not a User of sme.africa. We will always aim to respond to any new question within 8 business hours and may request additional information from the User. This service is to ask questions and to respond with opinions and not a service where We will be expected to perform any tasks. Any unrelated new question should be added as a new question and not be included as a response to any other question. All questions will automatically be closed after 7 days of no activity. Opinions and advice of even the highest standard are based on interpretation of the law and the expert’s experience. Therefore, the opinions provided and views expressed are matters of opinion rather than of certainty and We do not provide any warranty with respect to the accuracy, performance, sustainability, correctness or completeness with respect to the Services and module, and sme.africa together with the requisite expert is absolved from any liability to the full extent as permitted by law.
Cancel. We may cancel any Service at any time in our absolute discretion. We may, in our discretion, refund any monies already paid by you.
Fees. Despite our best efforts, the stated Fees may be incorrect. We will confirm the Fees for any Services when we accept your offer.
Third party terms. If a third party supplies Services directly to you, third party terms or conditions may apply. Users are solely responsible to ensure they understand and agree to those terms, and in this regard, you agree not to hold sme.africa responsible in respect of any such third party Services supplied to you.
Time and place. The parties conclude any agreement between them at the time when our duly authorised representative accepts the relevant offer and at the place where we have our head office. We do not need to communicate the acceptance of the offer to you.
Service Levels. We will provide the Services to you at the Service Levels.
Support. Services include access to email support. Email support means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by us to respond within one business day) concerning the use of the Services. We will provide support in accordance with our practices, procedures and policies.
FEES AND PAYMENT
Fees. You will pay us the Fees. We will invoice the applicable Fees in advance, starting from the Effective Date. We may change the Fees and payment terms upon 30 calendar days prior written notice to you. You may cancel Services at anytime on 30 days written notice to us.
Due dates. You will be liable for and pay the Fees promptly on the invoice date, without any deduction, set off or demand and free of exchange in the currency specified.
Manner of payment. You must make payment via debit order or EFT.
Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may, at our discretion, halt the provision of any Services until you have paid all amounts that are due.
Interest on overdue amounts. Any amount not paid by you on the due date will bear interest for our benefit, from the due date until the date you pay it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of our bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be prima facie proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
Appropriation. We may appropriate any payment received from you towards the satisfaction of any of your indebtedness to us under the Agreement.
Withhold payment. You may not withhold payment of any amount due to us for any reason.
Certificate. A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be conclusive prima facie proof of the correctness of the certificate’s contents.
Tax. All fees exclude any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by you in addition to the fees.
Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.
Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
BANK DEBIT ORDER INSTRUCTION
Authority: When any form of “debit order” has been selected as payment method, you authorise us to issue and deliver payment instructions to the bank details specified for collection against your bank account at your bank (or any other bank or branch to which you may transfer) as per the banking details provided for by yourself on condition that the sum of such payment instructions will never exceed your obligations as agreed to in our Agreement, and commencing on the effective date and continuing until the Service is cancelled.
The individual payment instructions so authorised to be issued must be issued and delivered as follows:
On the effective date and thereafter on the debit order date selected (“payment day”) of each and every month commencing on the commencement month. Further, if there are insufficient funds in the nominated account to meet the obligation, we are entitled to track your account and re-present the instruction for payment as soon as sufficient funds are available in your account.
You understand that the withdrawals hereby authorised will be processed through a computerized system provided by the South African Banks and also understand that details of each withdrawal will be printed on your bank statement. Each transaction will contain a reference, which must be included in the said payment instruction which will enable you to identify the Agreement. You shall not be entitled to any refund of amounts which we had withdrawn while this authority was in force, if such amounts were legally owing us.
Mandate: You acknowledge that all payment instructions issued by us shall be treated by your bank as if the instructions had been issued by yourself personally.
Cancellation: You agree that although this Authority and Mandate may be cancelled by yourself, such cancellation will not cancel the Agreement. You shall not be entitled to any refund of amounts which you have withdrawn while this authority was in force, if such amounts were legally owing to us.
Assignment: You acknowledge that this Authority and Mandate will be ceded to a third party who will manage the debit order on behalf of us as per our agreement with the third party.
Sales representatives. No sales representatives of ours has the authority to bind us and no representation, warranty or any other statements made or given by any of our sales representatives will be binding on us, unless given in Writing and Signed by a duly authorised representative of ours.
ACCEPTABLE USE AND CONDUCT
Responsibility. Each User is responsible for its conduct or Content on sme.africa. Each User must ensure that its users have the correct permissions to act on sme.africa.
Prohibited conduct. Nothing may be unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or harm minors in any way. Do not harass, stalk, degrade, intimidate, or be hateful toward an individual or group of individuals. No User may impersonate any person, falsely state, or otherwise misrepresent its affiliation with any person. Nothing may be false, deceptive, misleading, deceitful, or constitute bait and switch. Do not infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party. Any chain letter, pyramid scheme, or advertisement that is prohibited by law, is prohibited on sme.africa. The advertising and provision of any illegal service or the sale of any goods that are prohibited or restricted by applicable law are prohibited. Malware or badware is prohibited. Do not negatively affect the ability of any other User to use sme.africa. Do not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through sme.africa. No User may impose an unreasonable or disproportionately large load on our infrastructure. Do not attempt to gain unauthorised access to sme.africa or engage in any activity that disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of sme.africa.
Ownership. Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of sme.africa are our sole property or will vest in us or a third party licensor. All moral rights are reserved.
Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on sme.africa or other marketing material of ours is the property of its respective owner.
Restrictions. Except as expressly permitted under the Agreement, sme.africa may not be:
- 1. modified, distributed, or used to make derivative works;
- 2. rented, leased, loaned, sold or assigned;
- 3. decompiled, reverse engineered, or copied; or
- 4. reproduced, transferred, or distributed.
Sufficient rights. You may not provide Content for which you do not have sufficient rights.
Copyright infringement by you. You must promptly address any written notice to you that your Content infringes the copyrights or other rights of another person. If you do not promptly remove or change the infringing element of the Content specified in the notice, we may remove the Content without any liability to any User.
Ownership of Content. You grant us an unlimited, irrevocable, perpetual and worldwide licence to your Content posted and/or uploaded on sme.africa, to use on sme.africa.
Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.
DISCLAIMER OF WARRANTIES
Disclaimer. Use of sme.africa is at the sole responsibility and risk of each User. sme.africa is provided on an “as is” and “as available” basis. Except for the warranties given in the Agreement, and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:
- 1. any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or
- 2. any warranties regards third party software.
We do not warrant that sme.africa will meet the requirements of any User or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. Each User should keep up-to-date security software on the systems used to access sme.africa.
Each User agrees to indemnify, defend, and hold us harmless (and our subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees) from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees), however to arising, arising out of or relating to its use of sme.africa.
LIMITATION OF LIABILITY
Correct faults. We will correct any fault in sme.africa where possible, and in our discretion, and as soon as reasonably practical, and this shall be our entire liability regarding any fault with regard to sme.africa. If this clause is held inapplicable or unenforceable, then the following clause will apply.
Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total Fees already paid by you to us for the Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.
Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.
Discontinue sme.africa or the Services.
Without limiting the provisions herein, the following shall be construed as forms of beach of the Agreement:
- 1. commits a breach of the Agreement;
- 2. repeatedly infringes the copyrights or other rights of others;
- 3. fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
- 4. effects or attempts to effect a compromise or composition with its creditors; or
- 5. is provisionally or finally liquidated or placed under judicial management;
You agree that we may, to the extent permitted by applicable law and without prejudice to our rights in the Agreement or in law, deactivate or delete your account, terminate access to or use of sme.africa, claim specific performance of the Agreement, or cancel the Agreement immediately on written notice and claim damages from you (including, any claim for any Fees already due).
Effects of termination. On the deactivation or deletion of your account, the Agreement will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry, all amounts due to us for Services rendered prior to termination will become due and payable even if we have not invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry, will not affect the enforceability of the terms that are intended to operate after expiry or termination.
Forum. Any claims by us against you for injunctive or equitable relief or regarding intellectual property rights may be brought in any competent court without the posting of a bond. The parties will, in the first instance, refer any other dispute arising between you and us to our User Relationship Department, which will use its best endeavours to resolve the dispute. If the parties are unable to resolve a dispute, the dispute will be finally resolved by expedited arbitration in accordance with the dispute resolution procedures and rules [link to: http://www.arbitration.co.za/Pages/docs/expedited_rules.pdf] of the Arbitration Foundation of Southern Africa in the city where we have our head office in English.
Statute of limitations. Any claim or cause of action by you arising out of or related to the Agreement must (regardless of any statute or law to the contrary) be filed within 12 calendar months after the claim or cause of action arose or be forever barred.
Collection proceedings. We retain the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.
NOTICES AND DOMICILE
Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, and requests by hand, prepaid registered post, courier, fax, or email to the addresses and numbers provided on sme.africa. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.
Service (delivery) address for legal documents. Each party chooses its addresses and numbers provided on sme.africa as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this Agreement.
Change of addresses or numbers. Each party may change the addresses and numbers provided on sme.africa.
Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
CIRCUMSTANCES BEYOND CONTROL
No party will be responsible for any breach of this Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, the Internet, any telecommunications systems, or any computer hardware or software.
CESSION AND ASSIGNMENT
You may not delegate your duties under the Agreement or assign your rights under the Agreement, in whole or in part. We may assign the Agreement to any successor or purchaser of our business or some of our assets.
Entire Agreement. The Agreement, together with the Terms, is the entire agreement between the parties on the subject.
Changes. The Agreement may be changed at any time by us and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on sme.africa (or by email). If you do not agree with the change, you should stop using sme.africa. If you continue to use sme.africa following notification of a change to the Agreement, the changed terms will apply to you.
Fact related to website. A certificate, signed by an administrator of sme.africa, of any fact related to sme.africa (including the version of the Terms that governs our Services or dispute and what content was published or functionality was available on sme.africa at a specific point in time) will be proof of the correctness of the certificate’s contents.
Waiver. Any favour we may allow you will not affect or substitute any of our rights against you.
Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this Agreement if it does not change its purpose.
Governing Law. South African law governs this Agreement.
Right to reference. You consent to us using your name in any marketing or sales material.
- For the purposes of this section, Personal Information will be understood in accordance with the definition provided in the Protection of Personal Information Act 4 of 2013 (“the Act”). sme.africa also subscribes to the principles for electronically collecting personal information outlined in the Act, and the further legislation referred to therein. We endeavour to ensure the quality, accuracy and confidentiality of Personal Information in our possession.
- Users will be prompted to register an account with sme.africa. In so doing, Users may be asked to provide the following information (Personal Information):
- First name;
- Email address;
- Bank account details;
- Company / CC / business name;
- Company/CC/business registration number; and
- VAT vendor number (if applicable).
- All payment information will be captured through the Website. Further, sme.africa shall retain payment information on behalf of its Users.
- We will not collect, use or disclose sensitive information (such as information about racial or ethnic origins or political or religious beliefs, where relevant) except with your specific consent or in the circumstances permitted by law.
- The provision and performance of the Services;
- Informing you of changes made to our website
- Responding to any queries or requests you may have;
- Developing a more direct and substantial relationship with Users for the purposes described in this clause;
- Developing an online User profile;
- Running monthly debit orders in respect of your Fees;
- Understanding general User trends and patterns so that we can develop and support existing and ongoing marketing strategies;
- For security, administrative and legal purposes; and
- The creation and development of market data profiles which may provide insight into market norms, practices and trends to help us improve our offering to you. Such information will be compiled and retained in aggregated form, but shall not be used in any way which may comprise the identity of a User.
- Although absolute security cannot be guaranteed on the internet, sme.africa has in place up-to-date, reasonable technical and organisational security measures to protect your Personal Information against accidental or intentional manipulation, loss, misuse, destruction or against unauthorised disclosure or access to the information we process online.
- While we cannot ensure or warrant the security of any Personal Information you provide us, we will continue to maintain and improve these security measures over time in line with legal and technological developments.
- We store your Personal Information directly, or alternatively, store your Personal Information on, and transfer your Personal Information to, a central database. If the location of the central database is located in a country that does not have substantially similar laws which provide for the protection of Personal Information, we will take the necessary steps to ensure that your Personal Information is adequately protected in that jurisdiction.
- Your information will not be stored for longer than is necessary for the purposes described in these Terms or as required by applicable legislation.
- The Personal Information sme.africa collects from Users shall only be accessed by sme.africa employees, representatives and consultants on a need-to-know basis, and subject to reasonable confidentiality obligations binding such persons.
- sme.africa shall have the right, but shall not be obliged, to monitor or examine any information and materials including any website link that you publish or submit to sme.africa for publishing on the Site. You shall be solely responsible for the contents of all material published by yourself.
- You hereby consent to the sale, sharing, or rental of your Personal Information to third parties. We will not use your e-mail address for unsolicited mail. Any emails sent by sme.africa will only be in connection with the provision of our services.
- It is the responsibility of each User to maintain the confidentiality and security of their password.
UPDATING OR REMOVING
- A User may choose to correct or update the Personal Information they have submitted to us, by going to their account. To remove any Personal Information from our active database, a User may delete their account. Even if a User updates or removes their Data from our live database, Data may be retained in our backup files and archives.
- When you visit sme.africa, even if you do not create an account, we may collect information, such as your IP address, the name of your ISP (Internet Service Provider), your browser, the website from which you visit us, the pages on our website that you visit and in what sequence, the date and length of your visit, and other information concerning your computer’s operating system, language settings, and broad demographic information. This information is aggregated and anonymous data and does not identify you specifically. However, you acknowledge that this data may be able to be used to identify you if it is aggregated with other Personal Information that you supply to us. This information is not shared with third parties and is used only within sme.africa on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way different to that stated above, without your explicit permission.
- “Session cookies”: These are used to maintain a so-called ‘session state’ and only lasts for the duration of your use of the Website. A session cookie expires when you close your browser, or if you have not visited the server for a certain period of time. Session cookies are required for the Platform to function optimally, but are not used in any way to identify you personally.
- “Permanent cookies”: These cookies permanently store a unique code on your computer or smart device hard drive in order to identify you as an individual User. No Personal Information is stored in permanent cookies. You can view permanent cookies by looking in the cookies directory of your browser installation. These permanent cookies are not required for the sme.africa website to work, but may enhance your browsing experience.
LINKS FROM SME.AFRICA
- sme.africa, and the services available through the Website, may contain links to other third party websites, including (without limitation) social media platforms, payment gateways, appointment scheduling and/or live chat platforms (“Third Party Websites”). If you select a link to any Third Party Website, you may be subject to such Third Party Website’s terms and conditions and/or other policies, which are not under the control, nor responsibility, of sme.africa.
- Hyperlinks to Third Party Websites are provided “as is”, and sme.africa does not necessarily agree with, edit or sponsor the content on Third Party Websites.
- sme.africa does not monitor or review the content of any Third Party Website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by us and we should not be regarded as the publisher of such opinions or material. Please be aware that we are not responsible for the privacy practices, or content, of other websites, either.
- Users should evaluate the security and trustworthiness of any Third Party Website before disclosing any personal information to them. sme.africa does not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from your disclosure to third parties of personal information.
APPLICATION OF THE ELECTRONIC COMMUNICATIONS ACT 25 OF 2002 (“ECT ACT”)
- Data Messages (as defined in the ECT Act) will be deemed to have been received by sme.africa if and when sme.africa responds to the Data Messages.
- Data Messages sent by sme.africa to a User will be deemed to have been received by such User in terms of the provisions specified in section 23(b) of the ECT Act.
- Users acknowledge that electronic signatures, encryption and/or authentication are not required for valid electronic communications between Users and sme.africa.
- Information to be provided in terms of section 43(1) of the ECT Act:
- Users warrant that Data Messages sent to sme.africa from any electronic device, used by such User, from time to time or owned by such User, were sent and or authorised by such User, personally.
- This Website is owned and operated by SME Africa Online Solutions (Pty) Ltd, (Registration Number: 2018/513632/07) a private company owned and operated in accordance with the laws of the Republic of South Africa.
- Address for service of legal documents: PO Box 2036, Morningside, JHB, South Africa, 2057.
- Contact Number: 010 006 0003.
- sme.africa – located at www.sme.africa;
- Email address: email@example.com;