April 2018 | Version 1.0
These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide goods to you. The commercial terms of any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.
In the agreement:
additional fee means a charge you must pay us for the provision of any goods outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between the parties;
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
business day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;
business hours means our normal business hours on business days;
calendar day means a day counted from midnight to midnight. It includes all days of the month, including weekends (Saturday and Sunday), and public holidays;
contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;
credentials means a unique username and password that has been assigned to an authorised user;
effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
fees means the fees, charges, or purchase consideration that you will pay to us in respect of goods we provide under orders;
goods means any goods that we supply to you;
our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any:
personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;
sign means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of each of our duly authorised representatives;
tax means any:
terms means the terms, consisting of:
third party contractor means any contractor, supplier, vendor, or licensor of a part of the goods, which is not a party to the agreement;
we, us, or our means our organisation, the vendor that enters into an order and, if specified in the order, those related to it;
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 (like pdf), but excludes information or data in the form of email;
you or your means the customer that enters into an order and, if specified in the order, those related to it;
your data means your data (including information about an identifiable person) that:
Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.
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.
You represent and warrant that you (and any person who places an order):
The marketing of the goods by us is merely an invitation to do business or for you to make an offer to procure goods. The parties only conclude a valid and binding order when we accept the offer made by you. Unless otherwise agreed in writing or we accept an offer earlier, we only accept an offer relating to goods, when we dispatch the goods. If we only ship part of the goods relating to an offer, we only accept that portion of the offer. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.
Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you if we do.
Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any goods when we accept your offer.
The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office. We do not need to communicate the acceptance of the offer to you.
The terms in effect at the time you make an offer will govern the order. Each order will create a separate agreement.
We sell the goods to you who purchases them on the terms of the agreement.
Unless otherwise agreed in an order the goods will be supplied on the following basis:
Once payment has been made, access to the goods is immediate. If someone has made the payment on your behalf, you will have to wait for them to send you an invitation to access the goods. You may not withdraw any offer due to a delay in delivery.
All risk will pass to you upon you gaining access to the goods.
The goods will be subject to any warranty indicated in the description of the goods appearing on the accompanying documentation . Please review those documents carefully. You will have the same rights against us as we have against the supplier regards defects in the goods, the intention being that our liability to you will be co-extensive with the right of recourse we have against the supplier. We will provide a copy of any warranty on request. To the extent legally possible, we assign to you the benefit of any supplier warranties that a supplier may give to us regards the goods. You may not waive any of our common law rights as against the supplier.
We own all copyright and any other intellectual property rights in our software. Our software belongs to us and not to you. If you agree to the terms of this agreement, then we grant you this license to use our software subject to the licence conditions set out below. You will then have the right to use the software subject to the conditions. But, you may not use our software as if you own any rights in it. We do not grant you any licence to use our software if you do not agree to the terms of this agreement.
Your right to use our software:
You will be in breach of the license to use our software if you use it contrary to the conditions set out above.
The videos are our intellectual property. You may not copy any of our intellection property in any way. Prohibited methods of copying include, but are not limited to, downloading, screenshots, photography or recording. Any form of duplication will be considered a violation of our proprietary rights.
You own all your data. We do not own your data or other third party content used as part of the website. All title, ownership rights and intellectual property rights in and to the content submitted through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.
When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.
We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.
If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right or interest in it.
Our logo and sub-logos, marks, and trade names are our trade marks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
Except as expressly permitted under the agreement, the goods may not be: - reverse engineered or copied; or - reproduced or distributed.
All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
We warrant that:
You use our goods at your sole responsibility and risk. We provide the goods on an “as is” and “as available” basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including 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.
Despite any warranty we give, we will not be liable regards any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.
You warrant that:
and you agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.
You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off, or demand and free of exchange in the currency specified in the order.
You must make payment in the manner specified in South African Rands (ZAR).
All fees include VAT.
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 goods related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
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.
The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.
We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
We are not liable for any other deliverable, including website, goods, or service provided by any third party.
We agree to indemnify, defend, and hold you (and your personnel) harmless against any and all:
Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.
If a party:
Then the other party may, without prejudice to any of its rights:
We may immediately terminate this agreement at any time by giving you notice in writing if:
On termination, cancellation, or expiry of this agreement:
The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
On termination, cancellation, or expiry this agreement, all amounts due to us for goods delivered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
Following termination, you may take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.
We acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect:
There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg, Cape Town, or Durban (whichever city is closest to our head office at the time). The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
The parties may agree otherwise in an order.
The parties may agree in writing to change the periods for negotiation or mediation.
This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the relevant order.
Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
Each party may change the addresses or numbers in the specific terms to any other addresses or numbers by writing to the other party 14 days before the change.
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.
If a party actually receives any notice or other communication, this will be good enough.
No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.
No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of our business or some of our assets.
Despite this clause, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
We may have discussions with each other relating to this agreement, but the agreement is the entire agreement between the parties on the subject. It does not include anything outside of the agreement.
We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.
Any favour we may allow you will not affect or substitute any of our rights against you.
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.
South African law governs this agreement.
You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
Each party is responsible for its own costs of drafting and negotiating this agreement.
A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.
We supply digital goods.
Please carefully read and follow all instructions that come with our goods. For example, any documents that help you use our goods. Please also read our website at learn.fuelonline.mu for tips on using our goods.
Section 44 of the ECT Act may apply to your electronic transactions. If you qualify as a consumer under the Electronic Communications and Transactions Act, you may be entitled to cancel some electronic transactions within seven days, without reason or penalty. Section 44 is only applicable if you are a natural person – in other words, a human being. You must also be the end user of the goods or service. The transaction must be an electronic transaction – a transaction concluded via (in whole or in part) the website, email, or SMS.
We warrant that all our goods are of good quality unless we clearly describe them as having specific defects.
You must delete any digital goods you have downloaded from our website and confirm that you have done so on request by us in the manner provided for below. Certain goods by reason of their nature cannot be returned during the cooling-off period, such as eBooks, eMagazines, or electronic vouchers. If you have any problems with these types of digital goods, please contact us within seven days of the date on which you purchased the goods. We will do our best to resolve the problem.
We warrant that any media on which digital goods are delivered will be free of any defects for six months of normal use, from the time we supplied the goods. This is the statutory warranty in terms of the Consumer Protection Act of 2008 (the CPA).
Defective goods are those that had a defect or were unsafe when we supplied them. A defect usually means that workmanship involved in the creation of the goods was below an acceptable standard. This includes software bugs that cause death or illness to a natural person or damage to property. You must prove that goods are defective.
We will remedy, or refund the price of, any defective goods during the six month statutory warranty on request. Refund claims must follow our refunds procedure below.
Our goods are created under strictly controlled conditions. For this reason, warranties on any of our goods will be invalid if any person who is not suitably qualified and has been authorised by us in writing (for copyright reasons) and has edited, tampered with, or altered the goods or used the goods contrary to our instructions. This also applies to goods found to be unsuitable. It may be fraud to make goods defective deliberately to claim a refund.
Our customer that is also a consumer under the CPA may delete and request a remedy or refund for goods within ten days of delivery if the goods are not suitable for a specific purpose that they communicated to us in writing prior to purchasing the goods.
A consumer must claim a refund for unsuitable goods within ten days of delivery according to our refunds procedure below.
We will refund the full price of any unsuitable goods.
Customers of other suppliers (such as major online retailers) must claim refunds for defective or unsuitable goods directly from that supplier. Customers must use the correct refunds procedure. Please contact the customer services department of the relevant supplier for details of their refunds procedures.
You must use our refunds procedure for returning defective or unsuitable goods, or else we may refuse to accept them. Our refunds procedure is as follows:
If we do not accept that we supplied defective or unsuitable goods, and our customer services department has not been able to help, any customer may still take the matter up with a suitable ombud or other dispute resolution body, or take legal action. The dispute resolution procedures under the CPA do not necessarily apply to all transactions with us. This policy does not exclude any other rights customers may have.
Our customers can contact our service department as follows:
We aim for complete customer satisfaction. We respect our customers’ rights and always try to comply with best practice and all relevant laws. If you are not satisfied with any of our goods, or have any questions, please contact our customer services department and have your invoice ready. We will try our best to solve your problem. We are proud of the reputation of our goods.
There is no such thing as ‘perfect security’. We have to create a balance between increased levels of security and making transacting with us convenient to you.
We will ensure that:
Please note the following:
Other steps you should take to help protect your computer include:
Transacting with us electronically (including transacting and using your credit card on our website) is safe and secure. It is much the same as transacting in person face-to-face.
We do not get involved in any credit card transactions directly. All credit card transactions are handled or acquired for us via MyGate who are the approved payment gateway for our bankers, First National Bank. No credit card details are stored on our website. MyGate uses extremely secure and internationally recognised 256-bit encryption standards. You may go to https://mygate.co.za/ to view their security certificate and security policy.
GoDaddy checks, verifies, and certifies our service provider’s company registration documents and domains to ensure that nobody can impersonate them to obtain your payment Information.
Once you begin the checkout process you will notice that the site URL will change from “http” to" https" and a small padlock will appear at the bottom of your screen. This is indicative of a secure Internet transaction.
We do not currently support the Verified by Visa program or the MasterCard SecureCode. You can still use your Visa or MasterCard credit card as payment for an order, but we will not ask you to enter your Verified by Visa password or MasterCard SecureCode.
We accept EFT payments.EFT payments can be made through instant EFT provided by MyGate.
You must only log in to your account from a page that begins with.
We will never ask you to confirm your username and password or other sensitive information by clicking on any links in an email other than the email link we send you at registration to verify your email address. Be aware of “phishing” attacks where criminals attempt to obtain your sensitive information by sending you an email, masquerading as an email from us, asking you to access your account or verify information via links in the email, or diverting you to a fake Fuel LMS website. Please report any suspected phishing attacks to us immediately to prevent any harm to you or other users.
Please report any suspicious or unauthorised activity relating to your use of our website to us directly, because it will help make our website as secure as we can.
We reserve the right to take whatever action we may deem necessary at any time to preserve the security and reliable operation of our system. You undertake not do (or permit anything to be done) that may compromise the system under our control.