SALE OF GOODS WITH SUPPORT TERMS AND CONDITIONS
In the Sale of Goods Agreements, unless inconsistent with or otherwise indicated by the context:-
1.1 “Commencement Date” means the date upon which the signature clause overleaf is signed by the party last in time to do so;
1.2 “Contract Price” means the purchase price payable by the Purchaser to the Seller for the Goods and as specified in Sale Schedule Part 3; provided that the terms Contract Price shall after the first 36 (thirty six) months of the Agreement (apart from arrears) be deemed to be a reference to the training fee also set out in Sale Schedule Part 3;
1.3 “Delivery Address” means the Purchaser’s Delivery Address set out in Sale Schedule Part 1 at which he will accept delivery of the goods;
1.4 “Goods” means an educational course known as the Stock Market Course which trains the Purchaser to trade in securities and derivatives on securities and derivatives exchanges and:
1.4.1 in relation to the Download format of the Goods elected in Sale Schedule Part 2 (”the Goods”), Stock Market Course downloaded from the SMC server. An access password will be supplied.
1.4.2 Support in the form of training in respect of Stock Market Course which is weekly available at the SMC Campus, which support is included in the Contract Price for the first 36 (thirty six) months of this Agreement and which shall thereafter automatically extend for a further period of 36 (thirty six) months at a monthly fee set out in Sale Schedule Part 3 (“training fee”); provided that the Purchaser may terminate such support by 1 (one) calendar months’ written notice to SMC after expiry of the first 36 (thirty six) months of the Agreement
1.5 Sale Schedule” means the Sale Schedules in Parts 1, 2, 3, 4 and 5 overleaf relating to the Sale of Goods Agreement;
1.6 “Party” or “parties” means individually or collectively, as the context may require, the Seller and the Purchaser;
1.7 “Purchaser” means the person, company, firm, partnership or any other entity, including its successors or assigns, identified in Sale Schedule Part 1: Purchaser’s Particulars overleaf and called “Purchaser”;
1.8 “Sale of Goods Agreement” or “Agreement” means the sale agreement between the Seller and the Purchaser in relation to the Goods set out overleaf, including the Sale Schedules, these Sale of Goods Terms and Conditions, and the General Terms and Conditions set out below;
1.9 “Seller” means the person whose particulars appears in the heading of the Sale of Goods Agreement overleaf and called “The Seller”;
1.10 “SMC” means Stock Market College (Proprietary) Limited, Registration No. 2002/025712/07, a private company with limited liability duly registered and incorporated in terms of the laws of the Republic of South Africa of 1st Floor, Building 13, Woodmead Estate Office Park, 1 Woodmead Drive, Woodmead, Johannesburg, 2191 or such other address in Midrand or Johannesburg to which SMC may move by virtue of capacity requirements (“the SMC Campus”).
- Contract Price and Payment
2.1 The Contract Price set out in Sale Schedule Part 3 shall be payable by the Purchaser to the Seller. The Purchaser shall in Sale Schedule Part 3 elect the method by which he will pay the Contract Price or any part or balance thereof, which may be in a combination of payment methods, i.e. by electronic transfer, cash, credit/debit card or debit order, or any combination thereof, and shall duly give effect to such elected payment method.
2.2 Should the Purchaser elect to pay any part of the Contract Price in instalments by debit order, the Purchaser (or the Account Holder on his behalf) shall complete and sign, or have completed and signed the Debit Order Authorisation in Sale Schedule Part 4, the Purchaser undertaking to instruct his bank, or to procure that the Account Holder instruct his bank to effect payment of such instalments by debit order, provided that if the Purchaser (or the Account Holder on his behalf) terminates such debit order, the Purchaser shall nevertheless remain liable for payment of the Contract Price by other means on demand.
2.3 Should a third party authorise payment of the Contract Price or any part thereof by means of his credit/debit card or by debit order drawn on his bank account terminate such payment/s, all payments made under such authorisation shall be deemed to be payments made by the Purchaser, and such termination shall be deemed to be that of the Purchaser, who shall remain liable for the payment of the Contract Price, or deposit or instalments or the balance thereof by other means.
2.4 The Purchaser/Card Holder shall pay the Contract Price to the banking account of SMC specified in Sale Schedule Part 3, or on written notice by SMC to the Purchaser, to such other banking account nominated by it. If the Seller is not SMC the Seller acknowledges that it nominated the said banking account of SMC as the account to which payment must be made to it in terms of this agreement.
2.5 Should the Purchaser fail to pay the Contract Price or any part thereof on the due date thereof, then, without derogating from any of the other rights of the Seller, the Contract Price or any part of balance thereof shall immediately and without notice become due and payable, and the Purchaser shall be liable unto the Seller for interest a tempore morae on the full amount due, the statutory rate per annum (presently at 10.5 % per annum.
2.6 Should the Seller not be able to reach the Purchaser at any of the contact details given in this agreement, be it by telephone, mobile, email or post, the Purchaser consents to the Seller performing a trace on the Purchaser’s records on the Trans Union (ITC) Database or the database of any other credit bureau solely for the purposes of getting the most recent contact details to get into contact with the Purchaser.
3.1 Notwithstanding any other provision to the contrary, the Seller shall deliver the Goods to the Purchaser only against receipt or clearance of the Contract Price or the part thereof due on the Commencement Date in the banking account identified in Sale Schedule Part 4.a
3.2 Delivery of the Goods shall be affected by the Seller delivering to the Purchaser a Starter Pack. The Purchaser shall be entitled and obliged to take delivery of the Starter Pack personally at the Seller’s business premises specified in the heading of the Sale of Goods Agreement overleaf within 5 (Five) business days after compliance with clauses 3.1 above, against written acknowledgment of receipt of delivery. Any delivery to the Purchaser otherwise than in accordance with this clause shall be at the Purchaser’s risk. The support is available at the SMC Campus on 7 (seven) days prior arrangement.
3.3 Failing personal delivery as envisaged in clause 3.2 above, the Seller is entitled and authorised by the Purchaser to effect delivery of the Starter Pack at the Delivery Address stipulated in Sale Schedule Part 1: Purchaser’s Particulars overleaf. The Seller shall endeavor to deliver the Starter Pack at the Delivery Address within 5 (five) business days after the Purchaser fails to accept delivery in terms of clause 3.2 above, but such delivery period is not guaranteed, nor shall the time of delivery be of the essence. Delivery shall be completed when the Starter Pack is received at the Delivery Address by the Purchaser or any other person apparently in charge thereof.
3.4 Should the Seller engage a carrier to transport the Starter Pack to the Purchaser (the engagement of which is expressly authorised by the Purchaser), the signature of any person at the Delivery Address on the delivery note of the Seller or the carrier in accepting delivery of the Starter Pack shall be deemed to be that of the Purchaser or his agent, and shall constitute conclusive proof of the delivery of the Goods.
3.5 If there is no person, or no person willing to accept delivery of the Starter Pack at the Delivery Address at the first attempt to do so, it shall be deemed that the Purchaser frustrated delivery and took delivery of the USB Goods, but the Purchaser shall nevertheless again be personally responsible at his own cost to obtain actual delivery of the Starter Pack at the Seller’s business premises specified in the heading of the agreement.
3.6 The risk of damage to or loss of the Goods shall pass to the Purchaser upon delivery of the Starter Pack in terms of the delivery provisions set out above.
3.7 The Purchaser acknowledges that (i) his failure to call on the Seller to take delivery of the Starter Pack, or (ii) the failure of the Seller to deliver the Starter Pack otherwise than to him personally shall not give rise to a right to refund of any monies paid, or to withhold payment of the Contract Price or any part thereof, or for the Purchaser to cancel or otherwise terminate the Sale of Goods Agreement.
3.8 The Purchaser acknowledges that once he or his agent signs a delivery note in respect of the Goods, or opens his Starter Pack, or uses his Access Code to gain access to the SMC website, it will be deemed that he took delivery of the Goods and permanently installed or otherwise joined, added combined the Goods with his computer or any programs on his computer, or printed or otherwise consumed the Goods or any part thereof by use.
GENERAL TERMS AND CONDITIONS
- Limitation of Liability
4.1 Without limitation, any investment or financial decision which the Purchaser may make as a direct or indirect result of any information or material acquired by him in terms of the Sale of Goods Agreement, including the Goods, shall be entirely at the Purchaser’s risk, and for his own benefit or loss.
4.2 Neither the Seller, nor any of their employees, agents, franchisees, independent business owners, intermediaries or distributors (“the Seller”) shall be liable for any loss or damage, either direct, indirect or consequential, suffered by the Purchaser or any other person as a result of (i) any investment or financial decision by him based on the use of the Goods, (ii) any action or omission, including any failure or delay, or the provision of any information, either correctly or incorrectly, or any mistake, error or omission by or on the part of the Seller (iii) from the use of the Goods (iv) any computer virus or security breach, including computer hacking which may result in damage, destruction, alteration or corruption of any device, program or systems of or used by the Purchaser (v) causes beyond the control of the Seller, unless the Purchaser can show that the loss or damage suffered by him is a direct result of any willfulness or gross negligence on the part of the Seller.
4.3 The reason for the limitation of liability set out above is the fact that the use of the educational course calls for a value judgment on the part of the Purchaser, over which the Seller has no control.
- Warranties and Acknowledgments
The Purchaser, by his signature to the Agreement warrants, acknowledges or confirms that (i) all of the information pertaining to him as specified in the Agreement (including the Sale Schedules) is true and correct, and that he has the capacity and authority to enter into the Agreement (ii) he satisfied himself that all boxes in the Sale Schedules (indicating the selection of an option) have been correctly ticked (iii) he was given the opportunity to inspect the Goods and their operation prior to signature, and satisfied himself with the Goods and its operation for his purposes (iv) he must satisfy himself prior to conclusion of the Agreement that his computer and programs (including capacity) are compatible with and suitable for the Goods, the Seller accepting no responsibility in that regard, and (v) he read or was given the opportunity to read the Agreement prior to signature thereof, and that he received a copy thereof.
- Cooling Off Period
If the transaction herein recorded resulted from Direct Marketing the Purchaser may rescind the transaction without reason or penalty, by notice to the Seller in Writing or other recorded form, within 5 (Five) business days after the later of the date the transaction or Agreement was concluded or the goods being the subject to this transaction were delivered to the Purchaser.
- Intellectual Property Rights
7.1 Save as expressly otherwise stated in the Agreement, all rights, title and interest in and to all trade names, trademarks, logos, copyrights and other intellectual property rights used or embodied in or relating to the Goods, (collectively “intellectual property”) shall be and remain the sole property of SMC or its suppliers.
7.2 The Purchaser shall not be entitled to reproduce, distribute, disseminate, sell, publish, broadcast or copy the intellectual property in any way whatsoever.
7.3 The Purchaser undertakes that he shall not at any time in any way question or dispute the ownership of the intellectual property, perform any act that would injure the reputation or goodwill attaching to the intellectual property, infringe or prejudice such rights, and at all times abide by all laws applicable to the intellectual property.
- Breach of Contract
8.1 Should the Purchaser breach any term or condition of the Agreement or any warranty given by him thereunder, or fail to fulfill any of his obligations in terms thereof, including any failure to pay the Contract Price, or any part thereof when due, owing and payable, or should the Purchaser be sequestrated or liquidated, whether provisionally or finally, and whether voluntarily or compulsory, then without prejudice to the Seller’s other rights in law, the Seller shall be entitled forthwith and without notice to the Purchaser to cancel the Agreement, or to demand specific performance by the Purchaser of all his obligations in terms thereof, including the right to demand immediate payment of all sums of money (including future installments) owing by the Purchaser, whether or not then due, but in either event without prejudice to the Seller’s right to claim such damages as it may have suffered by reason of any breach or failure by the Purchaser.
8.2 In the event of the Seller or the Purchaser instituting legal proceedings against the other pursuant to the Agreement, the party to whom a cost order is granted shall be entitled to his costs on the scale as between attorney and own client, including collection costs.
- General Provisions and Interpretation
The parties acknowledge and agree that:-
9.1 save for terms implied by law, the Agreement constitutes and contains the entire agreement between them regarding the matters therein dealt with, and no provisions, terms, conditions, stipulations, warranties or representations of whatsoever nature, whether express or implied, have been agreed to or made by any of the parties or on their behalf except as are recorded herein, the Seller confirming that none of its employees, agents or other representatives are authorised to give the Purchaser any advice of a financial nature, or to make any promises or representations of any nature, verbal or in writing to the Purchaser in respect of the Goods or any other matter, other than as contained in the Agreement or in the Seller’s Promotional Material;
9.2 no relaxation, extension of time, indulgence or leniency of time, which the Seller may show to the Purchaser shall in any way constitute a waiver by the Seller of any of its rights under the Agreement, and the Seller shall not thereby be prejudiced or stopped from exercising any of its rights against the Purchaser which may by then already have arisen or which may arise thereafter;
9.3 no alteration, variation, amendment or purported consensual cancellation of the Agreement or this clause, or any waiver thereof shall be of any force or effect unless reduced to writing and signed by or on behalf of the parties hereto;
9.4 the rights and/or obligations of the Purchaser in terms of the Agreement may not be ceded or assigned to any third party without the Seller’s prior written consent. The rights and obligations of the Seller in terms of the Agreement may be ceded, assigned and or delegated by it to any other person on written notice to the Purchaser, provided that should the Purchaser’s consent be required, such consent shall not unreasonably be withheld;
9.5 the Agreement and all matters and disputes arising there from or incidental thereto shall be governed by and be construed in accordance with the laws of the Republic of South Africa;
9.6 the parties, in terms of the provisions of Section 45 of the Magistrate Court Act, No 32 of 1944, as amended, consent to the jurisdiction of the Magistrates Court in relation to any action or proceeding otherwise beyond the jurisdiction, provided that the Seller in its sole and absolute discretion may institute any such action or proceeding in a division of the High Court of South Africa having jurisdiction;
9.7 a certificate signed by any director or accountant of the Seller certifying the sum of any amount due, owing and/or payable by the Purchaser to the Seller, or any other fact in relation to the Agreement, shall be prima facie proof of its contents and sufficient proof for any judgment or order, or any other proceedings;
9.8 if a court or other competent authority having jurisdiction finds that any term or condition of the Agreement is unenforceable, illegal, void or contrary to public policy, such term or condition shall have no effect whatsoever upon the binding force or effectiveness of the remainder of the Agreement, it being the intention and declaration of the parties that they, even with knowledge of such unenforceability, illegality, invalidity or voidance at the Commencement Date, would have entered into a contract containing all other terms and conditions set out in the Agreement;
9.9 the Purchaser and the Seller choose as their respective domicilia citandi et executandi (“domicilium”) their physical addresses appointed in the heading or Sale Schedule Part 1: Purchaser’s Particulars (which in the case of the Purchaser shall be the Delivery Address) for all purposes arising out of or in connection with the Agreement;
9.10 a party may from time to time by written notice to the other vary his domicilium to another address within the Republic of South Africa, which is not a post office box or poste restante. Such notified address shall become the domicilium of that party within 7 (seven) days of the other party receiving such notification;
9.11 any notice given by a party to the other party (“addressee”) which:-
9.11.1 is delivered or made by hand during normal business hours at the addressee’s physical address/domicilium for the time being shall be presumed to have been received by the addressee at the time of delivery, provided that the presumption shall only apply if written proof of receipt is obtained by the delivering party, and duly produced on demand;
9.11.2 is posted by prepaid registered post from an address within the Republic of South Africa to the addressee’s postal address or domicilium, shall be presumed to have been received by the addressee on the seventh (seventh) day after the date of posting;
9.12 all notices by a party to the other in terms of the Agreement must be in writing, and where in terms of the Agreement any communication is required to be in writing, the term writing may include communications by facsimile or by email, provided that receipt thereof by the addressee must be proven by the production of a facsimile or email transmission report, and the direct or indirect admission of receipt thereof by the addressee by return of facsimile or email;
9.13 the Seller tapes and records telephone calls made or received by the Seller to or from the Purchaser, who agrees to such recordings;
9.14 in the Agreement:-
9.14.1 clause headings are for reference purposes only and shall not affect its interpretation;
9.14.2 references to natural persons shall include bodies corporate, other legal personae, associations, partnerships, trusts and other business entities, and vice versa;
9.14.3 references to the singular shall include the plural and vice versa;
9.14.4 any word or expression importing the masculine gender shall include the feminine, the neuter, and vice versa;
9.14.5 the rule of construction that the Agreement shall be interpreted against the party responsible for the drafting or preparation thereof shall not apply;
9.14.6 if any definition in the Agreement confers rights or imposes obligations on any party, such provisions shall be given effect to as if it is a substantive provision in the body of the Agreement;
9.14.7 the expiration or termination of the Agreement shall not affect such of the provisions thereof as expressly provide that they will operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.