The nitty gritty

Terms and Conditions

 

SMARTUP ACCOUNTING TUTOR

customer TERMS and conditions

 

1 October 2020

  1. INTRODUCTION
  • In this Agreement, the following definitions apply:
    • “Agreement” means this agreement and any annexures or schedules to this agreement.
    • “Customer” means a Student who is 18 (eighteen) years old or older or, in the case of a Student who is under the age of 18 (eighteen) years old, a Parent of the Student or any legal entity or other adult, who enters into this Agreement to use the Services;
    • “Fees” mean the amounts payable by the Customer for the Lessons;
    • “Lesson Package” means a number of Lessons purchased by the Customer as a package;
    • “Lesson Schedule” means the register signed by the Customer acknowledging that the Lesson has occurred;
    • “Lessons” means each tutoring session in the Lesson Package that a Student receives;
    • “Parent” means the person acting on behalf of the Student, such as a parent or guardian or carer or other party of the Student where the Student is under the age of 18 (eighteen) who is responsible for such Student and is legally authorised to act on the Student’s behalf;
    • “Payfast” means the third party payment provider and its subsidiaries and affiliates;
    • “Services” means the services as further described in clause 2 below;
    • “Student” means the Customer or person acting on behalf of the Customer who will be receiving the Services; and
    • “Smartup” means Smartup Accountant Proprietary Limited (South African registration number 2015/374961/07), a private company incorporated under the company laws of the Republic of South Africa, with its registered address situated at 74 Koensprag, Gardner Circle, South End, Port Elizabeth, South Africa, 6001.
  • Smartup owns an online platform which facilitates online tutoring to Customers.
  • Smartup provides these services itself.
  • By entering into this Agreement, the Customer appoints Smartup to provide Services to the Customer on the terms and conditions set out in this Agreement.
  1. THE SERVICES
    • Smartup shall provide the following Services:
      • Lessons for the Student which meet the tutoring needs of the Student as agreed to by the Customer;
      • the sale of Lesson Packages;
      • co-ordinating Lesson scheduling;
      • administrating and facilitating regular progress feedback reports;
      • collecting the Fees from Customers; and
      • attending to any other reasonable administrative services for purposes of providing the Lessons to the Student.
  1. CONSENT REQUIRED FOR MINORS
    • Any Student under the age of 18 (eighteen) years requires the consent or assistance of a Parent to legally enter into this Agreement.
    • Smartup accepts no responsibility for invalid consent being provided by a Customer. Any legal action taken against a minor as a result of their use of the Services or the Lessons is independent from Smartup and Smartup will not be a party to any such legal action.
  2. FEES AND PAYMENT
    • Fees. The Customer agrees to pay the Fees for the Lessons that will be provided in terms of the Lesson Package purchased. Smartup collects payment and will provide the Customer with the details setting out the number of Lessons that have been scheduled and the relevant cost.
    • Payment. All Fees are due and payable as agreed between the parties immediately prior to a Lesson being completed at least. Advanced payments are accepted
    • Manner of payment. Smartup will advise the Customer on the relevant payment details and payment methods available, which may include:
      • credit or debit card payment via Payfast;
      • debit orders, provided that the Customer agrees to a fixed number of Lessons per month and completes the necessary debit order mandate;
      • electronic funds transfer (EFT), provided that the Customer makes payment of the Fees upfront; and
      • any other payment method made available by Smartup.
    • Debit orders and Recurring Billing. Where a debit order or recurring billing is used to pay the Fees, the Customer will receive the agreed number of Lessons every month until the debit order or recurring billing is cancelled. In the event that the agreed number of Lessons are not used in a particular month, the Customer and Smartup shall agree to suspend the Lessons and carry the Lessons forward to be used by the Customer in the future in terms of clause 6.3 and subject to the terms of this Agreement.
    • Changes to Fees. The Fees may change from time to time on 30 (thirty) days’ notice. Fee changes will not affect or change Lesson Packages already paid for.
    • Taxes. All Fees include Value Added Tax in terms of the Value Added Tax Act 89 of 1991. To the extent allowed under applicable laws, the Customer is responsible for any other applicable taxes.
    • Payfast. If and when using Payfast to pay the Fees, you will be required to agree to the terms and conditions stipulated by Payfast and agree to pay any fees that may be charged by Payfast.
    • Third party payment gateways. If you pay the Fees through a third party payment gateway, you will be required to agree to the terms and conditions stipulated by any such third party and agree to pay any fees that may be charged by the third party.
    • Payment of fees. Under no circumstances will Smartup be responsible for any fees incurred by you to Payfast or any third parties.
    • Additional charges. If you cancel a payment by giving instruction to your bank to return your funds, and they do so, or the billing details provided are no longer valid, you will be liable to us and/or Payfast or a third party payment provider for any penalty which we or Payfast or the third party payment provider incur to that bank or other payment processor.
    • Foreign currency. If the Fees are described in a different currency to that which you use, you accept all risk for any currency fluctuations and you undertake to pay the Fees in full in our stated currency. You similarly undertake to pay any levy that may arise because of the currencies differing.
    • Exchange control. Where you make payment of the Fees from one country to another, you may be subject to the exchange control regulations and limitations of the country from which the payment is being made. In these circumstances, you agree that any limitation or regulation that is applicable to you, must be accounted for by you in a manner to ensure payment of the Fees in terms of this Agreement.
    • Late Payments. Should the Customer fail to make payment prior to commencement of a scheduled Lesson, Smartup reserves the right to suspend the Lessons until such payment is received. Once payment has been received by Smartup, the suspended Lessons may be rescheduled, subject to availability. This clause does not apply to Customers who make payment of the Fees via debit order and who have signed the necessary debit order mandate prior to the commencement of a scheduled Lesson.
    • Cooling off.
      • The Customer may cancel any Lesson Package purchased from Smartup within 14 (fourteen) calendar days of purchasing the Lesson Package, reckoned from the date of payment of the Fees, unless the Customer has already started to receive the Lessons.
      • Once the Customer has started to receive the Lessons, the Customer’s cooling off right expires.
    • Refunds. In the event of you cancelling any unused Lessons in a Lesson Package, Smartup will provide a pro-rata refund for the unused Lessons.
    • Reasonable cancellation fee. Where this Agreement or a Lesson Package is cancelled, the Customer may be charged a reasonable cancellation fee in terms of applicable law. The cancellation fee will be determined by taking into account the circumstances of and reasons for cancellation, the number of Lessons remaining in the Lesson Package purchased, the time remaining before the next scheduled Lesson and the ability of Smartup to find an alternative student to assign the time to.
    • Payment of refunds. In the event of a refund being provided, Smartup will credit the Customer with the Fees being refunded within 14 (fourteen) calendar days of agreeing to the refund by making payment to the Customer’s bank account as nominated in writing.
    • Transaction records. Smartup will make all documentation relating to transactions that have been concluded available via email.
  3. LESSON PACKAGES AND LESSONS
    • Lesson description. The Lesson type (e.g. single Student or group of Students) and Lesson duration (e.g 1 hour or 2 hours) of a Lesson Package purchased are fixed and cannot be modified without the express approval of Smartup. This is due to Lesson pricing being determined according to Lesson description parameters across the full Lesson Package. The Fees may change due to changes to the Lesson description and Smartup will provide the Customer with an updated invoice in such cases. The Customer will be required to accept and pay the updated Fees in accordance with this Agreement in order to secure the updated Lesson description and schedule Lessons.
    • Late arrival by Student. Should the Student arrive late for a Lesson, such Lesson might not be extended and might end at the scheduled time according to the Lesson description. The Customer shall make every effort to inform Smartup of its estimated time of arrival.
    • Late arrival by Smartup. Smartup is obliged to arrive at Lessons on time. However, where Smartup is late, Smartup will inform the Customer as soon as possible and provide an estimated time of. The Customer will be credited with the time that Smartup was actually late, which will be redeemable at the Customer’s election or at the end of the Lesson. Smartup will provide an official record to the Customer reflecting the time that is due to the Customer.
    • Signing of Lesson Schedules. The Customer must confirm the occurrence of Lessons by signing the Lesson Schedule provided Smartup at the end of each Lesson. The Customer acknowledges and accepts that its signature on the Lesson Schedule will be sufficient proof of the occurrence of each Lesson and that a Lesson Schedule may not be disputed after 30 (thirty) calendar days from the date of each Lesson.
    • Additional Lessons. Should the Customer need to purchase additional Lessons at certain times, during exam periods for example, the Customer and Smartup will negotiate the Lessons, the applicable Fees and will schedule the Lessons accordingly, taking Smartup’s schedule into account. The Customer will be liable for payment of the additional Fees as agreed with Smartup but may be required to make payment for the additional Lessons upfront via EFT. EFT payment for the additional Lessons is required where payment of the Fees for the usual Lessons is done via monthly debit order or recurring billing.
  4. RESCHEDULING OF LESSONS
    • Rescheduling notice requirement. Should the Customer wish to reschedule a Lesson, the Customer must provide Smartup with a minimum of 5 (five) business hours’ written notice (business hours being the hours between 08h00 and 17h00 on a business day, being Monday to Friday, excluding all official public holidays) (“Business Hours“), prior to the commencement of the scheduled Lesson to avoid forfeiting the Lesson. For example, a Lesson scheduled for 13h00 on Tuesday should be rescheduled by 08h00 on Tuesday. The Customer acknowledges that it may be liable for the Fees in respect of any Lessons that are scheduled to occur in the case where the Customer does not provide adequate notice to Smartup.
    • Repeated rescheduling. The Customer acknowledges that repeated rescheduling of Lessons may impact the ability or inclination Smartup to complete a Lesson Package and may impact Smartup’s ability to timeously complete such Lesson or Lesson Package. Accordingly, if the Customer’s rescheduling causes scheduled Lessons to be postponed, the Customer acknowledges and accepts that a refund shall not be warranted on account of any resulting delays in rescheduling Lessons.
    • Suspension of Lessons. Where the Customer has purchased a fixed number of Lessons to occur each month via debit order or recurring billing and needs to postpone the Lessons, Smartup and the Customer will agree to suspend the Lessons for an agreed period and will reschedule the Lessons for a future date. The Customer must provide Smartup with 10 (ten) days written notice.
  5. WARRANTIES AND REPRESENTATIONS
    • Smartup warrants that all Services provided in terms of this Agreement shall be provided in a workmanlike manner and that Smartup will comply with its obligations in terms of this Agreement. Save for this warranty, Smartup gives no other warranties and makes no representations to the Customer. The Customer’s sole and exclusive remedy for breach of warranty shall be re-performance of the Services, or termination of this Agreement and return of the portion of the Fees paid by the Customer.
    • The Customer warrants to and in favour of Smartup that:
      • the Customer has the legal capacity to agree to and be bound by this Agreement and is 18 (eighteen) years or older; and
      • this Agreement constitutes a contract valid and binding on and enforceable against the Customer.
    • Each of the warranties given by the Customer will:
      • be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
      • continue and remain in force irrespective of whether this Agreement or the Lesson Package is suspended or cancelled; and
      • be deemed to be material.
  1. LIMITED LIABILITIES
    • Except as expressly provided for in this Agreement or in terms of applicable law, Smartup will not, under any circumstances, be liable to the Customer for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgments, suits, expenses, disbursements, fines or other amounts which the Customer may sustain or suffer (or with which the Customer may be threatened) as a result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by Smartup or its employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of this Agreement for any reason.
    • Where any matter results in a valid claim against Smartup, Smartup’s liability will be limited to the Fees paid by the Customer in respect of the Lesson Package purchased by the Customer from which the valid claim arose, unless the matter arose as a result of the gross negligence of Smartup.
  2. INDEMNITY

The Customer indemnifies Smartup against any claims by any third party that Smartup may suffer or incur as a result of any breach by the Customer of any of the terms of this Agreement.

  1. SAFETY AND INDEMNIFICATION
    • The Customer hereby indemnifies and holds Smartup harmless against claims arising from any act or omission by Smartup who provides Lessons to the Student as a result of this Agreement.
    • Onus on Customer. The Customer acknowledges the need to take every precaution necessary in dealing with Smartup, as they would with any other independent contractor in their home, which may include but is not limited to supervising Lessons, particularly where minor Students are involved.
    • Reporting to Smartup. The Customer agrees that it will inform Smartup of any negative incidents that may occur with a Smartup so that Smartup may, at its discretion, take any steps it deems necessary and appropriate in the circumstances. Where the Customer reports any incidents to Smartup, Smartup shall not be liable to take any action and the Customer acknowledges and accepts that it is the Customer’s responsibility to pursue any official action against Smartup.
  2. ACCEPTABLE USE
    • Customer conduct towards Smartup.The Customer shall:
      • make all necessary information available to Smartup prior to each Lesson that Smartup may require in order to properly assist the Student during each Lesson;
      • only use language that is appropriate and not offensive or discriminatory and treat Smartup fairly and with respect;
      • ensure that all communications with Smartup are appropriate and limited to what is relevant for the Lesson;
      • not discuss any personal matters with Smartup or rely on Smartup for any form of counselling;
      • not make any inappropriate suggestions to Smartup;
      • not send any unsolicited communications to Smartup; and
      • where the Student is a minor, ensure that a Parent is present during the Lesson or that the Student is comfortable to continue the Lesson without a Parent being present.
  1. CANCELLATION AND SUSPENSION
    • At any time, and without cause, Smartup may cancel or suspend the Customer’s access to and/or use of the Services and cancel any future Lessons in its sole discretion without any liability if the Customer is in breach of this Agreement.
    • If any party to this Agreement breaches any material provision or term of this Agreement and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or under this Agreement (including obtaining an interdict), to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved party’s right to claim damages.
  2. DISPUTES
    • Any dispute which arises out of or pursuant to this Agreement between the Customer and Smartup (other than where an interdict is sought, or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration in accordance with the arbitration rules and legislation for the time being in force in the Republic of South Africa.
    • That arbitration shall be held:
      • with only the parties and their representatives present; and
      • at Port Elizabeth.
    • The parties shall use their best endeavours to procure the expeditious completion of the arbitration.
    • The provisions of this clause are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
  3. DISCLAIMER

Smartup endeavours to render an excellent service. However, Smartup does not make any guarantees regarding the level of academic improvement the Student will achieve. Ultimately, it is the Student’s responsibility to invest the time and effort needed to achieve academic goals.

  1. GENERAL
    • Changes to the Services. Smartup shall inform Customers of any material changes to the Services by manner of email or prominent notice on its websites. Continued use of the Services after this notice has been displayed shall be deemed as the Customers acceptance of the changes to the Services.
    • Intellectual Property. The Customer acknowledges and agrees that all right, title and interest in, and to, any of Smartup’s Intellectual Property (including but not limited to any copyright, trademark, design, logo, process, practice, or methodology which forms part of, or is displayed or used on Smartup’s websites or the Services including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software) is proprietary to Smartup or the respective owner(s)’ property and will remain our or the owner’s property at all times. The Customer agrees that it will not acquire any rights of any nature in respect of that Intellectual Property by using the Services.
    • Personal information. Smartup takes the right to privacy seriously and is committed to taking steps to protect the Customer’s privacy when using the Services and implements business practices that comply with applicable laws, including the Protection of Personal Information Act 4 of 2013 (“POPI“). All personal information of Customers will be processed in accordance with Smartup’s Privacy Policy and in compliance with applicable laws. The Privacy Policy can be found on Smartup’s website.
    • Entire agreement. This Agreement constitutes the whole agreement between the parties relating to the subject matter of this Agreement and supersedes any other discussions, agreements and/or understandings regarding the subject matter of this Agreement.
    • Confidentiality. Neither party shall disclose any confidential information to any third party without the prior written approval of the other party, unless required by law.
    • Law and jurisdiction. This Agreement and all obligations connected to it or arising from it shall be governed and interpreted in terms of the laws of South Africa. Each party submits to the jurisdiction of the South African courts.
    • Good faith. The parties shall in their dealings with each other display good faith.
    • No waiver. The failure of Smartup to insist upon or enforce strict performance by the Customer of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment of Smartup’s right to enforce any such provision or right in any other instance.
    • No assignment. The Customer will not be entitled to cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of Smartup.
    • Relationship between the parties. The parties agree that neither party is a partner or agent of the other party and neither party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
    • No representation. To the extent permissible by law, no party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
    • Severability. Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
    • No stipulation. No part of this Agreement shall constitute a stipulation in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
    • Notices.
      • Smartup selects the address and email address indicated on each invoice, as updated from time to time, as its physical and email address for the service of all formal notices and legal processes in connection with this Agreement.
      • The Customer hereby selects the physical and email address indicated on each invoice as its physical and email address for service of all formal notices and legal processes in connection with this Agreement. The Customer may change these details by providing Smartup with 7 (seven) days’ notice in writing.
      • Service via email shall be accepted in all cases where notice is required. Service via email is deemed to be received at the time and date of sending, subject to the terms of this Agreement that may regulate alternative specific notice requirements in some instances.