USER TERMS AND CONDITIONS
1. AGREEMENT TO TERMS AND CONDITIONS
1.1. This Agreement was last modified on [31 May 2020]. This User Agreement describes the terms and conditions which you accept by using our Website or our Services. These Terms and Conditions constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Hekima Counsel, concerning your access to and use of the hekimacounsel.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Website”).
1.2. You agree that by accessing the Website, you have read, understood, and agree to be bound by all of these Terms and Conditions.
1.3. We will alert you about any changes by updating the “Last updated” date of these Terms and Conditions, and you waive any right to receive specific notice of each such change.
1.4. It is your responsibility to periodically review these Terms and Conditions to stay informed of updates. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms and Conditions by your continued use of the Website after the date such revised Terms and Conditions are posted.
1.5. The information provided on the Website is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country.
1.6. Accordingly, those persons who choose to access the Website from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
2. In this User Agreement:
Unless a contrary intention clearly appears—
2.1. words importing—
2.1.1. any one gender includes the other genders;
2.1.2. the singular includes the plural and vice versa; and
2.1.3. persons include juristic entities, the state and vice versa;
2.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely—
2.2.1. "Account" means the account associated with your email address;
2.2.2. “Bidder” means a User that offers and provides services or identifies as a User providing professional services through the Website. A User may be both a Buyer and a Bidder under this agreement;
2.2.3. “Bidder Services” means the project, professional or specialised services provided by you;
2.2.4. "Buyer" means a User that purchases Bidder Services through the Website;
2.2.5. “Consumer Protection Act” means the Consumer Protection Act 68 of 2008, including any Regulations and schedules published in terms thereof, as amended from time to time;
2.2.6. “ECTA” means Electronics Communications and Transactions Act No.25 of 2002 including any Regulations and schedules published in terms thereof, as amended from time to time;
2.2.7. “Hekima Counsel”, “we”, “us” means Hekima Counsel, a company duly registered in accordance with the laws of South Africa, registration number: 2020/145252/07, the owner of the platform; 2.2.8. “Intellectual Property Rights” means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including: (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity;
2.2.9. “Personal Information” means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to: (a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person; (b) information relating to the education or the medical, financial, criminal or employment history of the person; (c) any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person; (d) the biometric information of the person; (e) the personal opinions, views or preferences of the person; (f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; (g) the views or opinions of another individual about the person; and (h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person;
2.2.10. “Protection of Personal Information Act” means the Protection of Personal Information Act No. 4 of 2013 including any Regulations and schedules published in terms thereof, as amended from time to time;
2.2.11. “User” means an individual who uses the Website. A User may be both a Buyer and a Bidder under this agreement;
2.2.12. “Value-Added Tax Act” means the Value-Added Tax Act No.89 of 1991 including any Regulations and schedules published in terms thereof, as amended from time to time; and
2.2.13. “Website” means the Websites operated by Hekima Counsel and available at: hekimacounsel.com and any of its regional or other domains or properties, and any related service, tool or application, specifically including mobile web, any iOS App and any Android App, or API or other access mechanism.
3.1. The Website is an online venue where Users buy and sell Bidder Services and items. Buyers and Bidders must register for an Account in order to buy or sell Bidder Services and/or items. The Website enables Users to work together online to purchase Bidder Services. We are not a party to any contractual agreements between Buyer and Bidder in the online venue, we merely facilitate connections between the parties and provide a platform for parties to meet and conduct business.
3.2. We may, from time to time, and without notice, change or add to the Website or the information, products or services described in it. However, we do not undertake to keep the Website updated. We are not liable to you or anyone else if any error occurs in the information on the Website or if that information is not current.
4. SCOPE 4.1. Before using the bidder platform on the Website, you must read the whole User Agreement, the Website policies and all linked information.
4.2. You must read and accept all of the terms in, and linked to, this User Agreement and our policies as posted on the Website from time to time. By accepting this User Agreement as you access our Website, you agree that this User Agreement will apply whenever you use the Website, or when you use the tools we make available to interact with the Website.
5.1. You will not use the Website if you:
5.1.1. are not able to form legally binding contracts;
5.1.2. are under the age of 18;
5.1.3. a person barred from receiving and rendering services under the laws of South Africa or other applicable jurisdiction;
5.1.4. are suspended from using the Website; or
5.1.5. do not hold a valid email address.
5.2. All free user accounts are associated with individuals. Login credentials should not be shared by users with others. The individual associated with the account will be held responsible for all actions taken by the account, without limitation.
5.3. Subject to your local laws, a person over 15 but under 18 can use an adult's account with the permission of the account holder. However, the account holder is responsible for all actions taken by the account, without limitation.
5.4. Users may provide a business name or a company name, which is associated with the User's Account. Users acknowledge and agree that where a business name or company name is associated with their Account, this User Agreement is a contract with the User as an individual (not the business or company) and Users remain solely responsible for all activity undertaken in respect of their Account.
5.5. It is therefore each User’s responsibility to ensure that they are duly authorised to represent the business company, corporation, trust, partnership or other non-individual corporate entity on this platform.
5.6. We may, at our absolute discretion, refuse to register any person or entity as a User subject to the Chapter 2 Part A of the Consumer Protection.
5.7. You cannot transfer or assign any rights or obligations you have under this agreement without prior written consent from Hekima Counsel.
6. USE OF WEBSITE
6.1. The purpose of the Website is to enable Users to work together online to procure Bidder Services. We are not a party to any contractual agreements between Buyer and Bidder in the online venue, we merely facilitate connections between the parties and provide a platform for parties to meet and conduct business.
6.2. While using the Website, you will not attempt to or otherwise do any of the following:
6.2.1. Post content or items in inappropriate categories or areas on our Websites and services;
6.2.2. Use the Website in a manner that will infringe any laws, third party rights or our policies as posted on the Website from time to time;
6.2.3. Fail to deliver payment for services delivered to you;
6.2.4. Fail to deliver Bidder Services purchased from you;
6.2.5. Circumvent or manipulate our fee structure, the billing process, or any fees owed to Hekima Counsel;
6.2.6. Post false, inaccurate, misleading, deceptive, defamatory or offensive content (including personal information);
6.2.7. Take any action that may undermine the feedback or reputation systems (such as displaying, importing or exporting feedback information or using it for purposes unrelated to the Website); 6.2.8. Transfer your Account (including feedback) and Username to another party without our consent;
6.2.9. Distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or chain marketing or promotional emails;
6.2.10. Download and aggregate listings from our Website for display with listings from other websites without our express written permission, "frame", "mirror" or otherwise incorporate any part of the Website into any other website without our prior written authorisation;
6.2.11. Attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the Website;
6.2.12. Copy, modify or distribute rights or content from the Website or Freelancer's copyrights and trademarks; or
6.2.13. Harvest or otherwise collect, share or distribute information about Users, including email addresses, without their consent.
7. COPYRIGHT INFRINGEMENTS
7.1. We respect the intellectual property rights of others. If you believe that any material available on or through the Website infringes upon any copyright you own or control, please immediately notify us using the contact information provided in clause 24.
7.2. Please be advised that pursuant to certain laws you may be held liable for damages if you make material misrepresentations on the Website.
7.3. If you believe that your intellectual property Rights have been violated, please notify us on our Website and we will investigate.
8. TRANSACTION FEES
8.1. We charge transaction fees of 25% (twenty five percent) in repect of each milestone that is completed by a successful Bidder.
8.2. Unless otherwise stated, all fees are quoted in South African Rands.
9.1. Successful Bidders are responsible for paying for the Transaction Fees contained in clause 8.1 to Hekima Counsel.
9.2. As a successful Bidder, you agree that you are bound by the applicable payment terms on this Website.
9.3. As a successful Bidder, you agree to maintain your payment instruments and accounts in good standing. Hekima Counsel shall attempt to validate your payment method by performing pre-authorisation at the time of order creation and from time to time prior to any service delivery or performance.
10. VAT LIABILITY AND OTHER TAXES
10.1. You acknowledge that you must comply with your obligations under the Income Tax Act.
10.2. You are responsible for paying any taxes, including any goods, services or valueadded taxes, which may be applicable depending on the goods and/or services provided.
10.3. Hekima Counsel may be required by the Income Tax Act and the Value-Added Tax Act as well as any other applicable law or regulations to collect taxes or levies including, without limitation, withholding income tax or VAT.
10.4. In such instances, any amounts Hekima Counsel is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Hekima Counsel under the Terms of Service.
11. Feedback, Reputation and Reviews
11.1. Your conduct may not undermine the integrity of the Hekima Counsel feedback system.
11.2. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating.
11.3. Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of Bidder Services through the Website. You may not use your User feedback in any place other than a website that is operated by Hekima Counsel or its related entities, without our written permission.
12.1. Unless otherwise agreed with us, you must not advertise an external website, product or service on the Website. Any website address posted on the Website, including in a listing, bid, listing description, clarification board or the message board, must relate to a Bidder Services.
12.2. We may display advertisements or promotions on the Website. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as a result of the presence of such advertisements or promotions or any subsequent dealings with third parties. Furthermore, you acknowledge and agree that content of any advertisements or promotions may be protected by copyrights, trademarks, service marks, patents or other intellectual property or proprietary rights and laws.
13. IDENTIFY AND VERIFY / KNOW YOUR CUSTOMER
13.1. In terms of section 43 of the ECTA, online suppliers must provide consumers with sufficient information on their websites, including but not limited to their full business name, physical address and an adequate description of the goods or services being sold. A Buyer may cancel an online purchase agreement within 14 days should the successful Bidder fail to comply with section 43.
13.2. You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity. You must, at our request: (1) provide further information to us, which may include your identity number, if you are a reprentative of a juristic person, your full business name and registration number, and any other information that will allow us to reasonably identify you; (2) take steps to confirm ownership of your email address or financial instruments; or (3) verify your information against third party databases or through other sources; and (4) provide us with your physical address.
13.3. You must also, at our request, provide copies of identification documents.
13.4. We reserve the right to close, suspend, or limit access to your Account and/or the Website in the event we are unable to obtain or verify to our satisfaction the information which we request under this section.
13.5. We reserve the right to update your particulars on the Website in order to match any identity documentation that has been provided. Disbursements such as wire transfers from the Website may only be made to the beneficiary matching your provided identity documents and account information.
14. RIGHT TO REFUSE ACCESS TO PLATFORM
14.1. We may close, suspend or limit your access to your Account without reason. Without limiting the foregoing, we may close, suspend or limit your access to your Account for the following reasons:
14.1.1. If we determine that you have breached, or are acting in breach of this User Agreement;
14.1.2. If we determine that you have infringed legal rights (resulting in actual or potential claims), including infringing Intellectual Property Rights;
14.1.3. If we determine that you have engaged, or are engaging, in fraudulent, or illegal activities;
14.1.4. You do not respond to account verification requests;
14.1.5. You do not complete account verification when requested within 3 months of the date of request;
14.1.6. To manage any risk of loss to us, a User, or any other person; or
14.1.7. for any other reasons we deem fit and in the best interest of the Hekima Counsel and its Users.
14.2. If we close your Account due to your breach of this User Agreement, you may also become liable for certain fees as described in clause 14.3.
14.3. Without limiting our other remedies in law, to the extent you have breached this User Agreement, you must pay us all fees owed to us and reimburse us for all losses and costs (including any and all of our employee time) and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
14.4. You acknowledge and agree that:
(1) the damages that we will sustain as a result of your breach of this User Agreement will be substantial and will potentially include (without limitation) fines and other related expenses imposed on us by our Users and that those damages may be extremely difficult and impracticable to ascertain;
(2) if you breach this User Agreement, we mayfine you up to R5000 for each breach and/or we may take legal action against you to recover losses that are in excess of the fine amount. 14.5. In the event that we close your Account, you will have no claim whatsoever against us in respect of any such suspension or termination of your Account.
15. DATA PRIVACY AND PERSONAL INFORMATION
15.2. Hekima Counsel will at all times use all Personal Information collected and in its possession in accordance with the Protection of Personal Information Act.
15.3. You will have access to your Personal Information at any time and be allowed to change it as and when it needs to be updated for accuracy.
15.5. You further represent and warrant that all Personal Information and information provided by you is true and correct in all material respects.
16.1. You will indemnify us (and our officers, directors, agents, subsidiaries, joint venturers and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of this Agreement, or your infringement of any law or the rights of a third party in the course of using the Website.
17. NO WARRANTY AS TO EACH USER'S PURPORTED IDENTITY
17.1. Hekima Counsel cannot and do not confirm each User's purported identity on the Website. We may provide information about a User, such as a strength or risk score, geographical location, or third party background check or verification of identity or credentials. However, such information is based solely on data that a User submits and we provide such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by us.
18. CONTRACTUAL RELATIONSHIP BETWEEN USERS
18.1. If Users decide to enter into a service contract, the service contract is a contractual relationship directly between the Users. Users have complete discretion both with regard to whether to enter into a service contract with each other and with regard to the terms of any service contract. You acknowledge, agree, and understand that Hekima Counsel is not a party to any service contract, that the formation of a service contract between Users will not, under any circumstance, create an employment or other service relationship between Hekima Counsel and any User or a partnership or joint venture between Hekima and any User.
18.2. With respect to any service contract, Users may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.), provided that any such agreements do not conflict with, narrow, or expand Hekima’s rights and obligations under the Terms and Conditions, including this Agreement.
19. DISPUTE RESOLUTION: USERS
19.1. If any dispute arises between any of the Users in relation to any matter pertaining to, or arising out of this Agreement, or arising out of the termination thereof, then the party claiming such dispute shall forthwith advise the other parties in writing thereof.
19.2. Within 14 (fourteen) days of receipt of the notice contemplated in clause 19.1 above, the parties shall meet and negotiate in good faith in order to resolve such dispute.
19.3. Should the parties fail to resolve such dispute within 7 (seven) days of their meeting or such longer period as the Parties may agree in writing, any Party may refer the dispute or difference to mediation to be undertaken by a senior representative of each of the parties.
19.4. Failing resolution by the senior representatives, the dispute shall, at the written request of any of the parties, be submitted to arbitration in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
19.5. Any party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.
19.6. Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
19.7. Any arbitration in terms of this clause 14 (including any appeal proceedings) shall be conducted in camera (behind closed doors and confidential) and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
19.8. This clause 14 will continue to be binding on the parties notwithstanding any termination or cancellation of the Agreement.
19.9. The parties agree that the notice by a party to the dispute in terms of clause 19.4 above that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
20.1. Additional Terms It is important to read and understand all our policies as they provide the rules for trading on the Website. In addition there may be specific policies or rules that apply, and it is your responsibility to check our Help pages and policies to make sure you comply. Our policies, including all policies referenced in them, are part of this Agreement and provide additional terms and conditions related to specific services offered on our Websites, including our policies as posted on the Website from time to time. Each of these policies may be changed from time to time. Changes take effect when we post them on the Website. When using platform on our Website, you are subject to any posted policies or rules applicable to services you use through the Website, which may be posted from time to time. All such policies or rules are incorporated into this User Agreement.
20.2. Applicable law and Jurisdiction
20.2.1. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa. 20.2.2. Subject to clause 18 above, the Users hereby consent and submit to the nonexclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg, in any dispute arising from or in connection with this Agreement. 20.3. Entire Agreement
20.3.1. The Terms and Conditions, our policies as posted on the Website from time to time constitute the sole and entire agreement between you and Hekima Counsel with respect to the online Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the online Services.
21.1. The Website is provided for Users and you agree that your use of the Website and our Services will be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the site and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranties or representations about the accuracy or quality of Bidder Services and we will assume no liability or responsibility for any errors, mistakes, or inaccuracies, damage or loss, of any nature whatsoever. We do not warrant, endorse, guarantee, or assume responsibility for any Bidder Services advertised or offered by a Bidder through the Website and we will not be a party to or in any way be responsible for monitoring any transaction between a Buyer and any Bidder.
21.2. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate.
22. SERVICES AND DELIVERIES BY BIDDERS
22.1. You understand and agree that Hekima Counsel is not an agent of the Bidders and makes no warranty, express or implied, of any kind whatsoever with respect to any services provided by any Bidder and disclaims any such warranties that might otherwise exist.
22.2. Hekima Counsel is not responsible for any liability that arises from the use of the online platform or during in-person meetings arising out of the use of the online platform. Buyers take full responsibility for taking safety precautions in the event of an in-person meeting with a Bidder. Though Hekima Counsel strives to encourage a respectful User experience, it is not responsible for the conduct of any User on or off of the Service.
22.3. You agree that you will not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other Users. You agree to use caution in all interactions with other Users. In addition, you agree to review and follow the following safety tips prior to using the Service:
22.3.1. Never send money or share financial information;
22.3.2. Protect your Personal Information;
22.3.3. Report all suspicious and offensive behavior; and
22.3.4. Protect your Account.
22.4. You are solely responsible for your interactions with individuals arising from transactions conducted through this website.
22.5. You understand Hekima Counsel does not conduct criminal background checks on its Users.
22.6. Hekima Counsel makes no representations or warranties as to the conduct of Users.
23.1. These Terms and Conditions and any policies or operating rules posted by us on the Website constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not operate as a waiver of such right or provision.
23.2. These Terms and Conditions operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act as a result of any cause beyond our reasonable control.
23.3. If any provision or part of a provision of these Terms and Conditions is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and Conditions and does not affect the validity and enforceability of any remaining provisions.
23.4. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms and Conditions or use of the Website. You agree that these Terms and Conditions will not be construed against us by virtue of having drafted them.
23.5. You hereby waive any and all defenses you may have based on the electronic form of these Terms and Conditions and the lack of signing by the parties hereto to execute these Terms and Conditions.
24. CONTACT US
24.1. In order to resolve a complaint regarding the Website or to receive further information regarding use of the Website as well to provide us with any feedback, please contact us at: HEKIMA COUNSEL EMAIL ADDRESS: Admin@hekimacounsel.com