PropCert Fidelity Fund Certificate Terms and Conditions

1 Definitions

1.1 “Acceptance Date” means the date on which you accepted the Agreement, by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone;

1.2 “Agreement” means the agreement concluded between you and SWITCHX which agreement will be exclusively governed by these terms and conditions and the privacy policy;

1.3 “Business Day” means Monday to Friday, but excludes Saturdays and a day which is an official public holiday in the Republic of South Africa; 

1.4 “Business Hours” means the hours between 08h30 and 17h00 on a Business Day;

1.5 "CPA" means the Consumer Protection Act, 2008;

1.6 “Customer” or “you” means a user of any of our products or services; 

1.7 “ECT Act” means the Electronic Communications and Transactions Act, 2002;

1.8 “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the aforegoing and any names, licenses, know how, trade secrets and data associated with the aforegoing;

1.9 "Juristic Person" means a company or close corporation and includes a body corporate, partnership, association or trust;

1.10 “Legal Notices Website” means http://www.propcert.co.za;

1.11 “Purchase Date” means date that a successful transaction is concluded by completing the checkout process including successful payment in full;

1.12 “Service” means the online facilitation of payment to the PPRA, as well as submission of data and documents to the PPRA;

1.13 “SWITCHX”, “we”, “us” and “our” means SwitchX (Proprietary) Limited t/a PropCert;

1.14 “SWITCHX Marks” means any trademarks, logos, brand names, trade names domain names or other names or marks of SWITCHX whether registered or not including without limitation the name PropCert;

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

1.16 “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991; and

1.17 “Website” means www.propcert.co.za.

2 Commencement, Duration, Termination and Cooling-off

2.1 You warrant that you have the contractual capacity to enter into this Agreement with us. If the Agreement is signed by a person acting in a representative capacity on behalf of you, the signing party hereby warrants that all of the information relating to the entity, partnership, association or other person whom he/she represents and which he/she has supplied to us at any time will be true, accurate and complete. We reserve the right to treat all misrepresentations by you as a fraud and you indemnify us against any loss or damage that we may sustain resulting from such misrepresentation.  

2.2 The provisions of the ECT Act, apply to transactions and communications that are executed electronically by a natural person. It does not apply to juristic persons or paper-based transactions, e.g. where you apply for a service or product by completing an agreement in writing.

2.3 The Agreement will commence on the Acceptance Date and endure for as long as you have a profile with SWITCHX until it is cancelled as provided for in this Agreement.

2.4 This Agreement incorporates by reference the Website Terms and Conditions and Privacy Policy which have been made available to you on this website and which you undertake to read and understand. If you do not understand anything, please ask us to explain it to you.

2.5 SWITCHX may terminate this Agreement immediately for material breach of this Agreement.

2.6 Notwithstanding the termination of the Agreement, in the event that you continue to use the products or services despite the termination of the Agreement, you will remain liable for and promptly pay on demand all amounts that would have been due to SWITCHX as a result of the use of or access to the product or service and this Agreement shall be deemed to continue to apply until such time as all amounts due to SWITCHX have been paid in full, and we will be entitled to terminate the agreement at any time.

2.7 If the Agreement results from any direct approach to you by SWITCHX or is an electronic transaction as contemplated in the ECT Act, you will be entitled to cancel the Agreement on written notice to SWITCHX without reason or penalty within 5 (five) Business Days (subject to the exclusions in section 42 (2) of the ECT Act) of –

2.7.1 in the case of services only being provided in terms of the Agreement - the Purchase Date unless the Service commences before the end of the 5 (five) day period. In this regard please note that these Services fall within the exceptions of section 42 (2) and cannot be cancelled; and

2.7.2 in the case where goods are provided and constitute the subject of the Agreement, whether in conjunction with services or on its own – the date of delivery of such goods.   

2.8 For purposes of clause 2.7.2, goods include any literature, music, photograph, motion picture, game, information, data software, code or other intangible product or any license to use such intangible product. 

2.9 A contract for sale of goods will only come into being on the Purchase Date. 

3 Conditions of access

3.1 SWITCHX will make the Service available to you on the Acceptance Date. 

3.2 You agree that:

3.2.1 You may not use the Service unless you are either a registered Property Practitioner renewing your registration or wish to register as a Property Practitioner as contemplated in the Property Practioners Act No 22 of 2019.

3.2.2 you will access the Service for your personal use or for the specific business for which you purchased the services only;

3.2.3 You are responsible for ensuring that complete and correct data is inputted and clear copies of the required documentation are uploaded;

3.2.4 you, as the applicant (irrespective of whether you apply in person or use a third party to capture your data and documents), acknowledge you are solely responsible for all payments in respect of a Service charged to your SWITCHX account, irrespective of whether the Service has been utilized or is being utilized by you or not, or whether or not your application for a Fidelity Fund Certificate is successful or not, and accordingly the entire amount outstanding on your SWITCHX account will be deemed to have arisen from (or relate to) your access to and/or use of a Service; and 

3.2.5 you will not attempt to circumvent SWITCHX’ user authentication processes or engage in attempts to access SWITCHX’ network where not expressly authorised to do so.

4 Service Delivery, Service Availability, Ownership

4.1 Contractual Relationship

4.1.1 Please note that the agreement for providing your Fidelity Fund Certificate lies between you and the Property Practioners Regulatory Authority (PPRA) itself. We are not a party to or involved in that agreement. Our responsibility to you in terms of this agreement ends once we have submitted your data and documentation to the PPRA and transferred your payment to the bank account of the PPRA. Note that the terms and conditions available at https://propcert.co.za/ffc-terms will apply to the issuing of your Fidelity Fund Certificate by the PPRA. Note that all payments made by you via our Service on our platform for PPRA fees are paid directly to the PPRA. 

4.1.2 We will use reasonable endeavours to deliver your data and supporting documents to the PPRA. However, we do not warrant or guarantee that the data and documents will be received or processed timeously by the PPRA or at all.

4.2 SWITCHX will use reasonable endeavors to make its Services available to you, and to maintain the availability thereof for use by you. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.

4.3 SWITCHX will use its best endeavors to notify you in advance of any maintenance and repairs which may result in the unavailability of a Service, but cannot always guarantee this.

5 Communication and Dispute Resolution

5.1 You agree that SWITCHX may from time to time send you communications regarding (without being limited to) special offers or discounts which SWITCHX may negotiate for and offer to its Customers and/or new services or products launched (should you have opted in)(“marketing messages”) and operational messages about the service from time to time. All communications will abide by our Privacy Policy and applicable law. You will always be entitled to notify us in writing that you do not wish to receive or continue to receive marketing messages and if you can pre-emptively block the receipt of such marketing messages. 

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

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

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

6 Payment

6.1 A valid tax invoice will be emailed to your registered email address on the Purchase Date.

6.2 Every effort is made to ensure the accuracy of pricing and other information. Instances may arise in which product(s) or services are priced incorrectly on the Website or where the product information supplied is inaccurate. SWITCHX will not be held bound by the incorrect price(s) in cases where such error(s) occur. SWITCHX will not be held responsible for errors in the product information supplied. In addition SWITCHX will not be liable for any payment errors made by you.

6.3 All prices listed on SWITCHX are inclusive of VAT unless otherwise stated. 

6.4 At the time of placing the order, the transaction details are presented to the bank and an authorisation is obtained for the amount of the order. As a protection against fraud, SWITCHX reserves the right to request ID documents, credit card billing statements and photocopies of any credit card used to make purchases. SWITCHX reserves the right to cancel any orders for customers refusing to make such information available or whose information appears in any way suspicious.

6.5 We are able to reverse transactions on our payment gateway system. Such refunds will only reflect on the payment method originally used and no other method is allowed. Refunds will be processed as soon as possible. Due to the fact that we are merely facilitating the flow of funds to the PPRA back to you, we are not able to process refunds for any fees already transferred to the PPRA. Any dispute as to the applicability of a refund of PPRA fees will be between you and the PPRA. 

6.6 Please note that chargebacks on card payments are not an alternative to the refund process. Chargebacks are a mechanism to prevent fraud and should not be abused. Any abuse will be reported to the card issuing bank. 

6.7 Payment can be made as follows:

6.7.1 You may make payment via any of the methods accepted by our third party payment processor.By providing a credit card, debit card, or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. 

6.7.2 Please note that you will be required to accept the terms and conditions for the use of our third party payment processor to place any orders with us.

6.7.3 You acknowledge that the amount billed may vary due to changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.

7 Privacy 

7.1 SWITCHX will deal with your personal information in accordance with the provisions of our Privacy Policy which is available on our website and in compliance with all relevant laws.

7.2 Note that at no time will any credit card information be stored by us.

8 Intellectual Property Rights

8.1 You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our services and/products.

8.2 You are prohibited from using any SWITCHX Marks without the prior written approval of SWITCHX.

8.3 SWITCHX (or its Third Party licensors) will wholly and exclusively retain all Intellectual Property Rights related to the provision of any of the services or products in terms of these terms and conditions. 

9 Breach 

9.1 Subject to any other provisions set out in these terms and conditions, should you be in breach of any provision of this Agreement, then SWITCHX shall be entitled, without prejudice to any other rights that it may have and to the extent required or permitted, as the case may be, by law, to forthwith:

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

9.1.2 suspend your access to the Service; or

9.1.3 cancel all agreements concluded between us.

10 Indemnity

10.1 You hereby unconditionally and irrevocably indemnify SWITCHX and agree to indemnify and hold SWITCHX harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by SWITCHX as a result of any claim instituted against SWITCHX by a third party (other than you) as a result of (without limitation):

10.1.1 your use of our Services other than as allowed or prescribed in the Agreement;

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

11 No representations, warranties or guarantees and Limitation of liability

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

11.2 Without limiting the generality of the provisions of clause 11.2, SWITCHX shall not be liable for and you will have no claim of whatsoever nature against SWITCHX as a result of 

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

11.2.2 any unavailability of, or interruption in the Service due to an Uncontrolled Event;

11.2.3 any damage, loss, cost or claim which you may suffer or incur arising from any suspension or termination of the service/s for any reason contemplated in the Agreement.

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

12 Cession and Delegation

You may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of this Agreement without the prior written approval of SWITCHX. SWITCHX shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without your consent and without notice to you provided that you are not unduly prejudiced as a result. “Affiliates” for this purpose includes SWITCHX’ holding company, the holding company(ies) of SWITCHX’ holding company (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by SWITCHX or are under common control with SWITCHX.

13 Jurisdiction

You hereby consent to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by SWITCHX arising out of this Agreement, provided that SWITCHX shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 5 above.

14 Amendment of this agreement

SWITCHX reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our website on a regular basis in order to determine whether any amendments have been made.

15 General

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

15.2 SWITCHX is in terms of section 43 of the ECT Act required to make its contact details, its domicilia citandi et executandi and certain other information available to its Customers who enter into electronic transactions with SWITCHX. This information is available on the website.

15.3 You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.

15.4 No indulgence, leniency or extension of time which SWITCHX may grant or show to you shall in any way prejudice SWITCHX or preclude SWITCHX from exercising any of its rights in the future.

15.5 You warrant that as at the date of acceptance all the details furnished by you to SWITCHX are true and correct and that you will notify SWITCHX in the event of any change to such details.

15.6 All our terms and conditions can be accessed, stored, and reproduced electronically by you.