SKILLFULLY: COMMERCIAL TERMS AND CONDITIONS
All clauses in these Terms displayed in BOLD are provisions which limit the risk or liability of Skillfully Group(Proprietary) Limited trading as Skillfully(“Skillfully”), and constitute an assumption of risk or liability by you, impose an obligation on you to indemnify Skillfully or is an acknowledgment of a fact by you. Please read these clauses carefully before agreeing to these Terms.1.DISCLAIMER
1.1. Skillfully does not endorse the accuracy or reliability of any information, statement, opinion, advice or other content contained on the Website or provided in the Services,and such content does not constitute legal, financial or other professional advice and should not be used to obtain credit, make investments of any nature or make financial decisions or for any other commercial purposes.
1.2. All information provided on the Website or with the Services are provided for information purposes only. You should therefore not rely upon it when making any decisions or when transacting.
1.3. Any reliance you place on any information on the Website or with the Services is strictly at your own risk. Skillfully will not accept any responsibility for any loss whatsoever which may arise from reliance on information or materials published on the Website or with the Services.
1.4. All information provided on the Website and with the Services is the intellectual property of Skillfully and/or the Trainers and are subject to these Terms and applicable laws.
2.INTERPRETATION AND DEFINITIONS
2.1. "Account" means the account created by Users through which Users access the Website;
2.2. “Client” means the organisation that employs a Trainee/User; or, more rarely, another person or entity who/that sponsors a Trainee/User to register for a Course;
2.3. “Course” means the training Service marketed on the Website;
2.4. "Skillfully", "us" and "we" means Skillfully Group Proprietary Limited (company registration number 2017/272446/07), a private company incorporated in terms of the laws of the Republic of South Africa;
2.5. "Fees" means the fees described in clause 10.1;
2.6. "PersonalInformation" means all information about a User that can be used to identify the User;
2.7. "Services" means the training services supplied to the Trainees by the Trainers, and the Website service available to Users in the context of the use of the Website, each being applicable in the relevant context;
2.8. “Supervisor” means a User employed by a Client who has been granted oversight responsibility for a set of Trainees who are employees of that Client, and who has access to the Trainees’ training records on the site;
2.9. "Terms" means these terms in this legally binding agreement that regulate your use of the Services and our relationship with you;
2.10. “Trainee”means a person making use of the Services;
2.11. "Trainer" means a third-party training partner, who we enter into a contractual relationship with from time to time, and if applicable,the Trainer’s subsidiaries and affiliates;
2.12. "User" and "you" means the person making use of the Website (which may include a Supervisor, Client Administrator, Trainee, Client or Trainer)and includes Trainees specifically in the context of a User making use of the training Services;
2.13. "VAT" means value added tax levied in terms of the Value Added Tax Act, 89 of 1991;and
2.14. "Website" means www.skillfully.co.za, including all sub-domains
3.WHEN DO THESE TERMS APPLY?
3.1. These Terms will apply when you use the Services as a User to the extent that they are applicable to you. You are required to accept these Terms when you create an Account.
3.2. To make use of any of our Services you must agree to these Terms. We reserve the right to refuse any request for our Services without notice or reason.
3.3. These Terms will also apply to any future services and interaction channels that may be made available by us unless stated otherwise.
4.OTHER APPLICABLE TERMS
Your use of the Services will be regulated by these Terms as well as any other terms that are available on the Website ("the Additional Terms"). The Additional Terms include the privacy policy governing the use of your Personal Information ("the Privacy Policy") and the general browser terms applicable to the general use of the Website ("the Browser Terms"). If there is a conflict between these Terms and any of the Additional Terms, the following order of preference will be applied in respect of applying such terms: (1) these Terms;(2) the Privacy Policy;and(3) the Browser Terms, in so far as the Additional Terms are applicable to you.5.CHANGES TO THESE TERMS
5.1. We may change or add to these Terms, change or cancel the Services or offer new Services to you from time to time, change the Website from time to time, and change or remove the Website from time to time, at our discretion. We will notify you of any material changes via email which will contain a link to the updated terms or with a prominent notice on the Website.For continued use of the Services, you may be requested, from time to time, to accept new or amended versions of these Terms.
5.2. We will give you 30(thirty) calendar days' notice of a material change to these Terms.Should you disagree with the changes made, you can discontinue using our Services.
6.DURATION OF THESE TERMS
Simply, these Terms apply for as long as you use our Services, which shall include the period until any disputes have been settled in the event of any disputes arising from the use of the Services.7.OUR SERVICES
7.1. The Company offers a marketplace for the employees of Clients, individuals funded by other sponsors, or self-funding individuals to find and book corporate and/or personal training; and a marketplace for Trainers to offer their Courses to potential Trainees.
7.2. The Services also include the provision of administrative services to Clients which include generation of training reports for supervisors, as well as the management of bookings and billing to Trainers.
7.3. The specific details about the Services in relation to each Course are available on the Website, as amended from time to time.
7.4. The information presented in the Services is not advice and should be used for informational purposes only. Any reliance on the information provided in the Services is at your own risk.
8.YOUR ACCOUNT AND INFORMATION
8.1. In order to access the Services, you must create an Account by providing your Personal Information to Skillfully. Once you have created an Account, you will be a User for purposes of these Terms.
8.2. By creating an Account, you acknowledge and agree that all information provided to Skillfully, including the Personal Information, is your own.
8.3. You are solely responsible for the safekeeping of your Account access credentials. This means that should anyone enter your Account access credentials (whether that be you, or anyone else), we assume that the person using the Website or Services is you.
8.4. You are not allowed to share your Account with other Users. Only you may use your Account to access the Website and Services and you may only use your Account and the Services for your own personal purposes. You
are strictly prohibited from sub-licensing or commercially exploiting your Account or the Services.
8.5. It is in your interests to familiarise yourself with our security requirements, guidelines and procedures communicated by us from time to time and follow these carefully.
8.6. You must inform us immediately if there has been, or if you suspect, any breach of security, confidentiality or of your Account, and update your Account access credentials.
9.CANCELLATION AND SUSPENSION
9.1. At any time, and without cause, we may cancel or suspend your Account or access to the Website and/or use of the Services in our sole discretion, without any liability if you are in breach of these Terms.
9.2.In addition, Skillfully may cancel your Account if:
9.2.1. we become aware of circumstances that lead us to believe that you will not perform your obligations required by these Terms;
9.2.2. you have used the Website to breach the intellectual property rights of any third party;
9.2.3. you have not used your Account or the Services for 3(three) years and are therefore considered to be an inactive User; or
9.2.4. you or your employer or sponsor have suspended any payments due by you in terms of these Terms to us.
9.3. Importantly, all our rights in respect of the confidentiality undertakings and our limitation of liability as set out below will survive the termination of these Terms.
9.4. Upon termination of these Terms:
9.4.1. you must make all reasonable efforts to delete all parts of the Services held by you in any format whatsoever;
9.4.2. you must immediately cease all use of the Services;
9.4.3. we will delete your Account and you will no longer be able to access any portion of the Website or Services that requires an Account; and
9.4.4. we will remove your payment information from our systems but will retain your Personal Information generated as a result of the Services for a reasonable period in line with the Privacy Policy.
10.FEES
10.1. The Fees are unique to each Course as described on the Website and are exclusive of VAT unless stated otherwise("the Fees").
10.2. The Fees are subject to change from time to time, however, changes to the Fees will not apply to Services already purchased.
11.PAYMENTS
11.1. Payment:payment of the Fees is required before a Trainee can access the Course. You or your employer or sponsor warrant that you or they are authorised to use the relevant billing details provided when paying the Fees, and we reserve the right to terminate any Service.if you are not authorised to use such details. You or your employer or sponsor must ensure that there are enough funds to cover the Fees when they are billed, and you acknowledge that Skillfully will not be liable for any overdraft fees that you might incur.
11.2. Trainees agree to adhere to the terms and conditions stipulated by the Trainer, as applicable to the Course.
11.3. Under no circumstances will Skillfully be responsible for any additional fees incurred by you to the Trainer or any other third parties.
11.4. Making payment:Fees can be paid viaEFT to Skillfully upon receipt of an invoice, and Skillfully will not have access to your credit card or payment information.
11.5. Transaction records:we will make all documentation relating to transactions between you and us available to you on yourAccountand via email.
11.6. Changes to Fees:the Fees will vary between Courses.
11.7. Taxes:all Fees exclude any applicable taxes unless stated otherwise. To the extent allowed under applicable laws, the User is responsible for any applicable taxes, whether they are listed on the transaction documents or not.
11.8. Failed purchase:should payment for the Fees be unsuccessful, the User will be notified of this and will be able to attend to payment again. In the event of a failed purchase, the Trainee will be unable to access the Course until the Fees have been successfully paid. If the Fees remain unpaid, Skillfully reserves the right to terminate your access to the Course and shall notify you of such termination via email.
11.9. Additional charges:if you cancel a payment by giving instruction to your bank to return your funds, and they do so, or your billing details provided are no longer valid, you will be liable to us for any penalty which we incur to that bank or other payment processor.
11.10.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.
12.REFUNDS
12.1. Cooling off:Users may cancel the Services purchased from Skillfully within 7 (seven) calendar days of purchasing the Services, reckoned from the date of payment of the Fees, unless the User has already started to receive the Services (i.e. you have used the Services during this period). We will not refund any Fees in terms of this clause
12.1if you have used the Services or if you request a refund after 7(seven) calendar days of making payment of the Fees.
12.2. Given the nature of the Services, we do not generally offer a refund or credit on Fees once you have used the Services unless required under applicable consumer protection laws.
12.3.Dissatisfaction with the Services:
12.3.1. If you have used the Services and are dissatisfied with them and would like to request a refund or credit on your Fees, you must contact us at legal@skillfully.co.zawithin 7(seven) calendar days of making payment of the Fees.
12.3.2. Skillfully will assess all requests on their merits, considering the digital nature of the Services, the types of problems you encountered and your use of the Services.
12.3.3. Refunds in terms of this clause
12.3. will be granted at the sole discretion of Skillfully, taking all circumstances into account.
12.4. All refunds granted will be paid to the User's payment card used for making payment of the Fees within 30(thirty) calendar days of the refund being granted.
13.PROMOTIONS
13.1. We may, at our discretion, make promotional codes and/or vouchers available to you in any form (“Promotions”), providing a discounted fee.
13.2. The Promotions will be distributed for free by us and will be strictly enforced regarding any expiry date linked to such Promotion and other terms that may apply to the Promotion.
14.CHANGES TO THE SERVICES
14.1. Skillfully shall inform Users of any material changes to the Services by manner of email or prominent notice on the Website. Continued use of the Website after this notice has been displayed shall be deemed as your acceptance of the changes.
14.2. Should any changes to the Services result in a User having less functionality from the Services, the notice will be sent 30(thirty) calendar days before any such changes take place, unless prior notice is not reasonably possible in the circumstances.
15.ACCEPTABLE USE POLICY
15.1. The Services are made available for the personal, non-commercial use of the User and the Trainee, as applicable.
15.2. Some devices may not support the use of our Website. It is your responsibility to keep your device(s)updated and/or in a condition for them to support the use of our Website, including internet access capabilities.
15.3. The use of our Services may be restricted to certain geographical areas.It is your responsibility to determine whether your location is supported by our Services before incurring any liability to us as we will not be liable for any loss that you may incur because of our Services not being supported in your location.
15.4.You must respect our Services and our intellectual property and that of the Trainer in utmost good faith and use it only as we intend it to be used. Any use by you of our Services which violates this undertaking can result in us terminating your use of our Services. We will be the sole judge of what constitutes a violation of your undertaking to use our Services, but these will likely be good grounds:
15.4.1. copying or distributing any of the content on our Website or provided in a course advertised on the Website without our explicit consent to do so;
15.4.2. providing any untrue or incorrect information to us;
15.4.3. changing, modifying, copying, decompiling, circumventing, disabling, tampering with or any part of our Website, including the security features or reverse engineering our Website;
15.4.4. infecting our Website with any software, malware or code that may infect, damage, delay or impede the operation of our Website or which may intercept, alter or interfere with any data generated by or received through our Website;
15.4.5. using malicious search technology, including, but not limited to, spiders and crawlers;
15.4.6.deep linking to any pages of our Website or engaging in any other conduct in a way to suggest that you are the owner of any intellectual property in ourServices;
15.4.7.allowing any third party to use your Account in any manner other than as permitted by these Terms; or
15.4.8.usingthe interactive sections of our Website to post any material which, in our discretion, is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or otherwise violates any laws.
16.CONSENT REQUIRED FOR MINORS
16.1. In terms of South African law, any persons under the age of 18(eighteen) years require the consent or assistance of a parent or guardian to legally enter into a reciprocal agreement.
16.2. Any User of the Website who is not at least 18(eighteen) years old requires the consent or assistance of a parent or guardian to use our Website and/or Services.
16.3. We accept no responsibility for invalid consent being provided by a User. Any legal action taken against a minor as a result of their use of our Website and/or Services is independent from Skillfully and we will not be a party to any such legal action.
17.ELECTRONIC MESSAGES AND COMMUNICATION
17.1. We will primarily use email and electronic notices on the Website as our communication tool for all communications relating to our Services or these Terms. This may also include the use of SMS (short message services), registered mail or telephone.
17.2. Please note that by accepting these Terms and using our Services, you acknowledge that we may use your personal contact information provided by you for communicating with you via electronic messages and communication in terms of applicable data protection laws, including the Protection of Personal Information Act, 4 of 2013 and the General Data Protection Regulation ((EU) 2016/679). This includes us sending you direct marketing communications. You can opt-out from receiving further direct marketing messages at any point in time.
18.SOCIAL MEDIA INTEGRATION
18.1. The Website may allow you to create an Account, profile, log in and/or share information through connecting to various social media sites or apps, including Facebook, Twitter, LinkedIn, and Instagram.
18.2. If you proceed to use our Services in such context, then the relevant social media websites' rules will also apply, and you agree to such integration.
19.INTELLECTUAL PROPERTY RIGHTS
19.1. You acknowledge and agree that all right, title and interest in, and to, any of our 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 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 us or the respective owner(s)' property and will remain our or the owner's property at all times.
19.2. You agree that you will not acquire any rights of any nature in respect of that intellectual property by using our Services.
20.WARRANTIES AND REPRESENTATIONS
Subject to applicable laws:
20.1. we give no guarantee of any kind concerning the content or quality of our Services and our Services are not to be considered as advice of any kind;
20.2. we do not give any warranty (express or implied) or make any representation that our Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose; and
20.3. we make no representations to you, either express or implied, and we will have no liability or responsibility for the proper performance of the Services and/or the information, images or audio contained on the Website. Our Services are used at your own risk.
20.4. You warrant to and in favour of us that:
20.4.1. you have the legal capacity to agree to and be bound by these Terms; and/or
20.4.2. you have the consent of a parent/guardian in cases where you are younger than 18(eighteen) years old or you are 18(eighteen) years or older; and
20.4.3. these Terms constitute a contract valid and binding on you and enforceable against you.
20.5.Each of the warranties given by you will:
20.5.1. 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 these Terms;
20.5.2. continue and remain in force irrespective of whether these Terms are active, suspended or cancelled; and
20.5.3. be deemed to be material.
21.LIMITED LIABILITIES
21.1.To be clear:
21.1.1. we will not be liable for any loss arising from your use of the Services or any reliance on the information presented on the Website or in the Services or provided by Skillfully as part of the Services;
21.1.2. we will not be liable to you for any loss caused by using theServices or your liability to any third party arising from those subjects. This includes but is not limited to:
21.1.2.1. any interruption, malfunction, downtime, off-line situation or other failure of the Trainer’s Course, system, databases or any of its components;
21.1.2.2. any interruption, malfunction, downtime, off-line situation or other failure of the Website, system, databases or any of its components;
21.1.2.3. any loss or damage regarding your data or other data directly or indirectly caused by malfunction of the Website; and
21.1.2.4. any third-party systems whatsoever, power failures, unlawful access to or theft of data, computer viruses or destructive code on the Website, or third-party systems or programming defects;
21.1.3. we will not be liable if any material available for downloading from theWebsite is not free from infection, viruses and/or other code that has contaminating or destructive properties;
21.1.4. the Website may include inaccuracies or typos –in such instances we can't be held liable and can't be forced to comply with offers that are genuinely (and/or negligently) erroneous;
21.1.5. we are not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt. Security measures have been implemented to ensure the safety and integrity of our Services. However, despite this, information that is transmitted over the internet may be susceptible to unlawful access and monitoring; and
21.1.6. we are not responsible for the Course content which shall be provided and presented solely by the Trainer, and we shall not be liable in any form for the conduct of the Trainer or for any damage or loss caused by the Trainer in the provision of the Services, including direct, indirect, consequential, special or other kinds of losses or claims which you may suffer.
21.1.7. finally, our limited liability applies to all and any kind of loss which we can possibly contract out of under law, including direct, indirect, consequential, special or other kinds of losses or claims which you may suffer.
21.2. If any matter results in a valid claim against Skillfully, Skillfully's liability will be limited to the Fees paid by the User in respect of the Services supplied under these Terms.
22.INDEMNITY
You shall indemnify, defend and hold us (including our shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time), our affiliates and their employees and suppliers harmless from any and all third party claims, any actions, suits, proceedings, penalties, judgments, disbursements, fines, costs, expenses, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind) and liabilities, including reasonable attorneys' fees, whether directly or indirectly arising out of, relating to, or resulting from negligence, intent, breach of these Terms or violation of applicable law, rule, regulation by a party or its affiliates, or their respective owners, officers, directors, employees, or representatives or any other action or omission of any nature.
23.FORCE MAJEURE
Except for the obligation to pay monies due and owing, neither you nor we shall be liable if either of us cannot perform in terms of any agreed terms due to reasons beyond our control. This includes lightning, flooding, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for which we are not responsible, and acts of government or other competent authorities (including telecommunications and internet service providers).
24.ARBITRATION
24.1. Any dispute which arises out of or pursuant to these Terms (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.
24.2. The parties shall jointly appoint an arbitrator within 14(fourteen) calendar days of either party demanding arbitration from the other Party, failing which either party shall be entitled to approach the Secretariat of the Arbitration Foundation of South Africa ("AFSA") to recommend an arbitrator to preside over the arbitration proceedings, which recommendation will immediately be deemed to have been accepted by the parties as soon as such recommendation is made to either party and the arbitration process may immediately commence.
24.3. Unless otherwise agreed, the rules of Commercial Arbitration as stipulated by AFSA will apply to such arbitration.
24.4.That arbitration shall be held:
24.4.1. with only the parties and their representatives present;
24.4.2. at Cape Town.
24.5. The provisions of this clause 24 are severable from the rest of these Terms and shall remain in effect even if these Terms are terminated for any reason.
24.6. The arbitrator's award shall be final and binding on the Parties and incapable of appeal.
25. LEGAL DISCLOSURE
25.1. Website owner: Skillfully Group Proprietary Limited, with registration number 2017/272446/07.
25.2. Legal status: Skillfully Group(Pty) Limited is a private company, duly incorporated in terms of the applicable laws of South Africa.
25.3. Director details may be supplied by email request.
25.4. Description of main business: The Website is a marketplace for the employees of clients, or self-funding individuals, to find and book corporate training. Also providing administrative services to clients (e.g. generation of training reports for supervisors) and to trainers (e.g. handling of bookings, billing, etc.).
25.5.Email address: legal@skillfully.co.za
25.6.Website address: www.skillfully.co.za.
26.GENERAL
26.1.Suspension of the Website: we may temporarily suspend the Website for any reason, including repairs or upgrades to the Website or other systems. Skillfully will take reasonable efforts to notify Users of such suspensions in advance.
26.2. Entire agreement: these Terms constitute the whole agreement between the parties relating to the subject matter of these Terms and supersedes any other discussions, agreements and/or understandings regarding the subject matter of these Terms.
26.3.Confidentiality: party shall disclose any confidential information to any third party without the prior written approval of the other party, unless required by law.
26.4. Law and jurisdiction: these Terms and all obligations connected to them or arising from them shall be governed and interpreted in terms of the laws of the Republic of South Africa. Each party submits to the jurisdiction of the South African courts.
26.5. Good faith: the parties shall in their dealings with each other display good faith.
26.6. Breach: if either party to these Terms breaches any material provision or term of these Terms and fails to remedy such breach within 14(fourteen) calendar 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 these Terms (including obtaining an interdict), to cancel these Terms 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.
26.7. No waiver: the failure of Skillfully to insist upon or enforce strict performance by the User of any provision of these Terms, or to exercise any right under these Terms, shall not be construed as a waiver or relinquishment of Skillfully's right to enforce any such provision or right in any other instance.
26.8. No assignment: the User will not be entitled to cede its rights or delegate its obligations in terms of these Terms without the express prior written consent of Skillfully.
26.9. 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.
26.10. 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.
26.11. Severability: any provision in these Terms 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 these Terms, without invalidating the remaining provisions of these Terms.
26.12. No stipulation: no part of these Terms shall constitute a stipulation in favour of any person who is not a party to these Terms unless the provision in question expressly provides that it does constitute such a stipulation.
26.13.
Notices:
26.13.1. Skillfully selects legal@skillfully.co.za as its email address for the service of all formal notices and legal processes in connection with these Terms, which may be updated from time to time by updating these Terms. Parties wishing to use a physical address for correspondence should email us to request the physical address.
26.13.2. You hereby select the email address specified in your Account as your address for service of all formal notices and legal processes in connection with these Terms, which may be changed by providing Skillfully with 7(seven) calendar days' notice in writing.
26.13.3. Service via email shall be accepted in all cases where notice is required unless alternative service is required by law. Service via email is deemed to be received at the time and day of sending.