1     DEFINITIONS

1.1                “AUP” means the Acceptable Use Policy of Via Afrika that contains restrictions and obligations of Subscribers outlining proper use of the Services, that can be found on the Website and may change from time to time;

1.2                “Acceptance Date” means the date on which the Subscriber accepted these terms on our Website;

1.3                “Activation Date” means the date on which Via Afrika gives the Subscriber access to and/or enable the Subscriber to use the Service;

1.4                “Agreement” means these terms and conditions in respect of the Services;

1.5                “Compatible Device” means a tablet device required by the Subscriber in order to access and use the Services. A list of Compatible Devices, which will change from time to time, can be found on our Website;

1.6                “Fees” means the charges for the supply of the Services and which are payable by the Subscriber in accordance with clause 6;

1.7                “Intellectual Property Rights” ‑ all patents, trademarks, trade names, logos, service marks, designs, design rights, copyright (including all copyright in any designs and software), source code, inventions, trade secrets, confidential information and all other intellectual property rights and rights of a similar character in and to, or the subject matter of which relates to the Services (whether or not same are registered or capable of registration) and all applications and rights to apply for protection of such rights, and including without limitation copyright in the Services, all the usual documentation associated with the Services, and all upgrades, new versions, modifications and enhancements of the Services, from time to time;

1.8                “Privacy Policy” means the Privacy Policy of Via Afrika, as amended from time to time, available on the Website;

1.9                “Services” means the Tabtor services selected by the Subscriber on the Website;

1.10             “Subscriber” means you, the person purchasing the Services from Via Afrika;

1.11             “Tutors” means the trained, professional subject experts contracted or otherwise engaged by Via Afrika who provide one-to-one personalised learning to Users;

1.12             “Uncontrollable Event” means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of Via Afrika including the termination or suspension of a service or product provided by an upstream supplier, that may result in a delay or a failure to provide any product or service;

1.13             “Users” means the person authorised by the Subscriber to use the Services;

1.14             “Via Afrika” means Nasou Via Afrika Proprietary Limited; and

1.15             “Website” means http://www.viaafrika.com/tabtor.

2         ACCEPTANCE OF TERMS OF SERVICE

2.1                By using the Services, of Via Afrika, the Subscriber is agreeing to be bound by the terms and conditions of this Agreement.

2.2                Via Afrika reserves the right to amend the Agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is the Subscriber’s obligation to visit our Website on a regular basis in order to determine whether any amendments have been made. The Subscriber’s continued use of the Services after any such changes shall constitute the Subscriber’s consent to such changes.

3         DURATION AND TERMINATION

3.1                The Agreement will commence on the Acceptance Date and endure for a fixed period of 1 (one) year from the Acceptance Date (“the Term”).

3.2                This Agreement may be terminated in terms of the provisions of this Agreement.

3.3                Without limiting its other rights or remedies, Via Afrika may terminate the Agreement with immediate effect by giving written notice to the Subscriber if Via Afrika decides to discontinue the Services or is legally or otherwise obliged to discontinue the Services.

3.4                Notwithstanding the termination of the Agreement, in the event that the Subscriber continue to use the Services despite the termination of the Agreement, the Subscriber will remain liable for and promptly pay on demand all amounts that would have been due to Via Afrika as a result of the use of or access to the Services and the Agreement shall be deemed to continue to apply until such time as all amounts due to Via Afrika have been paid in full.

4         SUBSCRIPTION

4.1                In consideration of the Fee paid by the Subscriber to Via Afrika, Via Afrika hereby grants to the Subscriber a non-exclusive right to use the Services for the Term subject to this Agreement.

4.2                Via Afrika hereby grants to the Subscriber the right to permit the User to use the Services in accordance with this Agreement.

4.3                The Subscriber has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Services in whole or in part.

4.4                The Subscriber acknowledges that no source code or technical level documentation, which is provided by Via Afrika in connection with the Services, is licensed under this Agreement.

4.5                Via Afrika reserves the right to modify the Services for training, maintenance, upgrades, and security purposes at any time.

4.6                The Subscriber hereby acknowledges that only 1 (one) User is permitted to use the Services under this Agreement.

5         ACCOUNT REGISTRATION OBLIGATIONS

In consideration of the Subscriber’s use of the Services, the Subscriber agree to: (a) provide true, accurate, current and complete information about the Subscriber and the User as prompted by the Services registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If the Subscriber provide any information that is untrue, inaccurate, not current or incomplete, or Via Afrika has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Via Afrika has the right to suspend or terminate the Subscriber’s account and refuse any and all current or future use of the Services (or any portion thereof).

6         PAYMENTS

6.1                The Subscriber must pay the Fees by way of credit or debit card.

6.2                The Subscriber hereby authorises Via Afrika to immediately charge his/her credit or debit card in respect of the first payment and then monthly thereafter in respect of the monthly charges for the Services.

6.3                The Subscriber agrees to pay all amounts due under the Agreement in consideration for the Services.

6.4                Should the Subscriber fail to pay any amount on the due date for payment then Via Afrika may, without prejudice to any of its other rights and remedies ‑

6.4.1                       immediately suspend all access to the Service without notice to the Subscriber until such time as the outstanding amount has been paid in full;

6.4.2                       take all such further steps as may be necessary to recover the outstanding amount from the Subscriber, including without limitation the use of debt collection mechanisms; or

6.4.3                       terminate this Agreement with immediate effect.

6.5                In the event of Via Afrika suspending the Subscriber’s access to the Services, Via Afrika reserves the right to continue to charge the Subscriber the Fees due during the period of suspension and the Term will not be extended by the duration of the period of suspension.

6.6                To the extent that Via Afrika incurs any additional expenditure relating to the tracing and/or collection of unpaid amounts, those costs shall be for the Subscriber’s account to the extent permitted by law.

7         MEMBER ACCOUNT, PASSWORD AND SECURITY

7.1                The Subscriber will select a username and password prior to the Activation Date in order to enable the Subscriber or User to gain access to and/or use the Services. the Subscriber or User will not be able to access and/or use the Services without a username and password.

7.2                The Subscriber agree that ‑

7.2.1                       the Subscriber or User will use the username and password for his/her own personal use only and that Via Afrika accounts may not be used by more than one User;

7.2.2                       the Subscriber will not disclose the username and password to any other person for any reason whatsoever and that the Subscriber will maintain the confidentiality thereof;

7.2.3                       in the event that the password is compromised, the Subscriber will immediately notify Via Afrika and change the password;

7.2.4                       the Subscriber, as the holder of the username and password acknowledges the Subscriber he/she is solely responsible for all payments in respect of a service charged to the Subscriber’s Via Afrika account, irrespective of whether the service has been utilized or is being utilized by the Subscriber or not and accordingly the entire amount outstanding on the Subscriber’s Via Afrika account will be deemed to have arisen from (or relate to) the Subscriber’s access to and/or use of a service;

7.2.5                       the Subscriber agrees to cause an User who use the Services under the Subscriber’s account or with the Subscriber’s authorization to comply with the Agreement. All acts or omissions of an User will be treated for all purposes as the Subscriber’s acts or omissions;

7.2.6                       the Subscriber will not attempt to circumvent Via Afrika’s user authentication processes or engage in attempts to access Via Afrika’s network where not expressly authorised to do so.

8         DATA RETENTION

8.1                Via Afrika will use reasonable endeavours to ensure the safekeeping of any data or content which Subscriber or User may receive or upload to Via Afrika’s servers from time to time (“the Subscriber’s data”).

8.2                Via Afrika will not be liable for any direct or indirect loss or damages of any kind, which Subscriber or User may suffer as a result of the loss of the Subscriber’s data, or any part thereof, for any reason whatsoever.

 

8.3                Via Afrika will, unless otherwise required by law, delete all the Subscriber’s data from our servers upon termination of the Agreement.

 

8.4                Registration Data and certain other information about Subscriber or User are subject to our Privacy Policy.

9         COMMUNICATION, COMPLAINTS HANDLING AND DISPUTE RESOLUTION

9.1                The Subscriber agrees that Via Afrika may from time to time send the Subscriber communications regarding (without being limited to) special offers or discounts which Via Afrika may negotiate for and offer to its subscribers and/or new services or products launched. All communications will abide by our Privacy Policy and applicable law. The Subscriber will always be entitled to notify us in writing that the Subscriber do not wish to receive or continue to receive such communications.

9.2                Complaints must be submitted to Via Afrika and will be dealt with by Via Afrika in accordance with the provisions of this clause.

9.3                Any payment default by the Subscriber arising from, or in connection with, any service rendered or provided by Via Afrika, will be excluded from the provisions of this clause, and Via Afrika will be entitled to proceed to institute legal action against the Subscriber.

9.4                Without prejudice to the Subscriber’s rights in law, the Subscriber are required, to first approach us with any complaint or dispute and afford us an opportunity to resolve a compliant before the Subscriber approach any relevant authority, court or other dispute resolution body or refer the matter to Arbitration as contemplated in clause 9.10 below.

9.5                Please direct all complaints to tabtorcomplaints@viaafrika.com. The Subscriber’s complaint should include the following ‑

9.5.1                       the Subscriber’s name and surname;

9.5.2                       the Subscriber’s username;

9.5.3                       the date on which the complaint arose; and

9.5.4                       a brief description of what gave rise to the complaint.

9.6                In the event of a billing complaint the Subscriber should also include the following ‑

9.6.1                       the reason for the dispute;

9.6.2                       the amount in dispute; and

9.6.3                       supporting information or documentation, if any.

9.7                Via Afrika will acknowledge receipt of the Subscriber’s complaint within 3 (three) working days of receipt thereof.

9.8                Via Afrika will formally respond with a view to proposing a resolution of the Subscriber’s complaint in writing within 14 (fourteen) working days of receipt thereof, or within such longer period as we reasonably require under circumstances where the resolution of the complaint is for example (but without limitation) in the hands of a supplier or third party service provider.

9.9                The Subscriber may approach any relevant authority, court or dispute resolution body or refer the matter to Arbitration as set out in clause 9.10 below, for resolution of the dispute, should the Subscriber not be satisfied with the proposed resolution of the dispute by Via Afrika.

9.10             Any dispute between the parties may be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held either in Cape Town or Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This Agreement to arbitrate shall be enforceable in, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.

9.11             The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.

9.12             The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.

10      ACCEPTABLE USE POLICY

The Subscriber hereby agrees to adhere to generally acceptable Internet and e-mail etiquette. In this regard the Subscriber will be expected to have read and familiarised itself with VIA Afrika’s AUP.

11      MEMBER CONDUCT

11.1             The Subscriber understands that all information including but not limited to data, text, software, photographs, graphics, illustrations, artwork, video, music, sound, messages, names, logos, trademarks, service marks and other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that the Subscriber, and not Via Afrika, are entirely responsible for all Content that the Subscriber or User upload, post, e-mail, transmit or otherwise make available via the Service. Via Afrika does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Via Afrika be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed, transmitted or otherwise made available via the Service.

11.2             This subscription is for individual use only and under the guidance of the Via Afrika Tutor.  The User have access to unlimited worksheets, however Via Afrika reserves the right to not provide Tutor grading of the worksheets in case of excessive use. The following is a non-exhaustive list of practices that would be considered excessive use ‑

11.2.1                    submitting more than 5 worksheets in a day.

11.2.2                    submitting more than 25 worksheets in a week.

11.3             The Subscriber understands that the technical processing and transmission of the Service, including the Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

11.4             The Subscriber agrees to indemnify and hold Via Afrika, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content the Subscriber or User submit, post, transmit or make available through the Service, the Subscriber or User’s use of the Service, the Subscriber or User’s connection to the Service, the Subscriber or User’s violation of the Agreement, or the Subscriber or User’s violation of any rights of another.

11.5             The Service may provide, or third parties may provide, links to other Internet websites or resources. Because Via Afrika has no control over such sites and resources, the Subscriber acknowledge and agree that Via Afrika is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources.  The Subscriber further acknowledge and agree that Via Afrika shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

12      INTELLECTUAL PROPERTY RIGHTS

12.1             The Subscriber agrees to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by the Subscriber through the use of any of our Services.

12.2             The Subscriber acknowledges that all Intellectual Property Rights in the Services belong and shall belong to Via Afrika and the Subscriber shall have no rights in or to the Services other than the right to use it in accordance with the Agreement.

13      BREACH

13.1             Subject to any other provisions set out in the Agreement and without prejudice to any of these provisions, should the Subscriber be in breach of any provision of this Agreement, then Via Afrika shall be entitled, without prejudice to any other rights that it may have and to the extent  required or permitted, as the case may be, by law, to forthwith ‑

13.1.1                    afford the Subscriber a reasonable opportunity to remedy the breach, taking into account the nature of the breach in question; or

13.1.2                    suspend the Subscriber’s access to the Services;

13.1.3                    cancel the Agreement; or

13.1.4                    claim immediate performance and/or payment of all the Subscriber’s obligations in terms hereof.

14      DISCLAIMER OF WARRANTIES

14.1             The Subscriber expressly understands and agrees that ‑

14.1.1                    Via Afrika will use reasonable endeavours to make the Services available to the Subscriber and to maintain the availability thereof for use by the Subscriber. However, the Subscriber’s use of the Services is at the Subscriber’s sole risk. The Services is provided on an “as is” and “as available” basis. Via Afrika expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement;

14.1.2                    Via Afrika makes no warranty that (i) the Services will meet the Subscriber’s requirements, (ii) the Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by the Subscriber through the Services will meet the Subscriber’s expectations, and (v) any errors in the software will be corrected;

14.1.3                    Any material downloaded or otherwise obtained through the use of the Services is done at the Subscriber’s own discretion and risk and that the Subscriber will be solely responsible for any damage to the Subscriber’s computer system or loss of data that results from the download of any such material;

14.1.4                    No advice or information, whether oral or written, obtained by the Subscriber from Via Afrika or a Tutor or through or from the Services shall create any warranty not expressly stated in the Agreement.

14.2             Via Afrika will use its best endeavours to notify the Subscriber in advance of any maintenance and repairs which may result in the unavailability of the Services, but cannot always guarantee this.

15      INDEMNITY

15.1             The Subscriber hereby unconditionally and irrevocably indemnify Via Afrika and agree to indemnify and hold Via Afrika harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and when-so-ever arising, suffered or incurred by Via Afrika as a result of any claim instituted against Via Afrika  by a third party (other than the Subscriber) as a result of (without limitation) ‑

15.1.1                    the Subscriber or User’s use of the Services other than as allowed or prescribed in the Agreement;

15.1.2                    any other cause whatsoever relating to the Agreement or the provision of the Services to the Subscriber where the Subscriber have acted wrongfully or failed to act when the Subscriber had a duty to so act.

16      LIMITATION OF LIABILITY

16.1             Save to the extent otherwise provided for in this Agreement or where the Subscriber are entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, we do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality or security of the Services.

16.2             Without limiting the generality of the provisions of clause 16.3, Via Afrika shall not be liable for and the Subscriber will have no claim of whatsoever nature against Via Afrika as a result of ‑

16.2.1                    the Subscriber’s use of the password reminder service which the Subscriber acknowledges the Subscriber is not obliged to use and have voluntarily elected to make use of;

16.2.2                    the loss of or access to any usernames or passwords which the Subscriber are required to safeguard and not allow unauthorized access on the understanding that we will be entitled to assume that the Subscriber are the person so using or gaining access to any service or account where the Subscriber’s username or password is used;

16.2.3                    any unavailability of, or interruption in the Services due to an Uncontrolled Event;

16.2.4                    any damage, loss, cost or claim which the Subscriber may suffer or incur arising from any suspension or termination of the Services for any reason contemplated in the Agreement.

16.3             In addition to and without prejudice to any other limitations of liability provided for in the Agreement and to the fullest extent permitted by applicable law, Via Afrika shall not be liable to the Subscriber for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that Via Afrika is liable to the Subscriber for any damages, Via Afrika’s liability to the Subscriber for any damages howsoever arising shall be limited to the amounts paid by the Subscriber under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.

17      CESSION AND DELEGATION

The Subscriber may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of the Subscriber’s rights and obligations under and in terms of this Agreement. Via Afrika shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without the Subscriber’s consent and without notice to the Subscriber. “Affiliates” for this purpose includes Via Afrika’s holding company, the holding company(ies) of Via Afrika’s holding company (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by Via Afrika or are under common control with Via Afrika.

18      JURISDICTION

The Subscriber hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by Via Afrika arising out of this Agreement, provided that Via Afrika shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, the Subscriber consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 9 above.

19      GENERAL

19.1             The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No changes or cancellation of this Agreement by the Subscriber, including any changes to the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties, notwithstanding activation of the service.

19.2             The Subscriber agrees that any notices we send to the Subscriber in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.

19.3             No indulgence, leniency or extension of time which Via Afrika may grant or show to the Subscriber shall in any way prejudice Via Afrika or preclude Via Afrika from exercising any of its rights in the future.

19.4             The Subscriber warrant that as at the date of signature of the Application Form, all the details furnished by the Subscriber to Via Afrika are true and correct and that the Subscriber will notify Via Afrika in the event of any change to such details.

19.5             All our terms and conditions can be accessed, stored, and reproduced electronically by the Subscriber.

19.6             The physical address where Via Afrika will receive legal service of documents is the following – 11th Floor, Media24 Centre, 40 Heerengracht, Cape Town 8001