Last updated: 18 August 2020
RETIREMENT BENEFIT COUNSELLOR PRODUCT: TERMS AND CONDITIONS OF USE
2 INTERPRETATION AND DEFINITIONS
- 1.1 The Benefit Counsellor (Pty) Ltd (“the Licensor”) is the developer and owner of the Benefit Counsellor Product (“the Product”).
- 1.2 The Product has been licensed to Retirement Fund Solutions Namibia (Pty) Ltd (“the Licensee”) for use by those members of retirement funds administered by the Licensee who has been authorised to use the Product (“Authorised Users”).
- 1.3 The Product can be accessed by Authorised Users on the specified website address per the Agreement and other mobile applications (“the Website”).
- 1.4 These terms and conditions govern the contractual relationship between the Licensor, the Licensee and the Authorised User concerning the use of the Product and the Website by the Authorised User.
3 ACCEPTANCE AND APPLICATION OF TERMS AND CONDITIONS
- 2.1 In these Terms and Conditions, the following words and expressions shall bear the following meanings:
- 2.1.1 “Authorised User” means registered members of Benchmark Retirement Fund who are authorised by the Licensee to use the Product;
- 2.1.2 “Client Data” means data and information supplied and/or entered by the Authorised User for use of the Product;
- 2.1.3 “CPA” means Consumer Protection Act, 68 of 2008 of South Africa;
- 2.1.4 “Personal Information” means personal information as defined in the Protection of Personal Information Act, No. 4 of 2013 of South Africa;
- 2.1.5 “Product” means the Licensor Product developed by the Licensor, which Product provides online retirement benefits counselling to Authorised Users and which Product:
- 126.96.36.199 offers communication of information and ability to communicate directly with Authorised Users;
- 188.8.131.52 offers the ability to interact and request specific information and / or actions from the Authorised Users;
- 184.108.40.206 is designed to help Authorised Users make better decisions when exiting from a fund on retirement or resignation; and
- 220.127.116.11 is designed to allow Authorised Users to do financial scenario planning;
- 2.1.6 “Product Content” means the contents of the Product, including any material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs and service marks which are displayed on or incorporated in the Product
4 CONDITIONS OF ACCESS
- 3.1 These Terms and Conditions apply to all Authorised Users and is binding and enforceable on all persons who access and use the Product or any part thereof.
- 3.2 Insofar as the CPA may be applicable, these Terms and Conditions contain provisions that appear in similar text and style to this clause and which:
- 3.2.1 may limit the risk or liability of the Licensor; and/or
- 3.2.2 may create risk or liability for the Authorised User; and/or
- 3.2.3 may create liability for the user to indemnify the Licensor; and/or
- 3.2.4 serves as an acknowledgement, by the Authorised User, of a fact.
- 3.3 Authorised Users’ attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
- 3.4 Nothing in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either the Authorised Useror the Licensorin terms of the CPA
- 3.5 By using the Website, you acknowledge that you have read and agree to be bound by these Terms and Conditions.
- 3.6 If you do not agree to or accept these Terms and Conditions, please leave the Website immediately, as further use of the Website automatically binds you to these Terms and Conditions.
5 RESTRICTIONS ON USE
- 4.1 Each Authorised User shall be issued with a user name ("User Name") and password ("Password"). The Authorised User shall ensure that it’s User Name and Password are not disclosed to any third party and shall immediately report to both the Licensor and Licensee any actual or potential unauthorised access to or use of the Authorised User Name and/or Password. On receipt of such report, the Licensor reserves the right to suspend access to the Product by the compromised Authorised User until such time as a new Password and/or User Name, as the case may be, has been issued by the Licensor to the Authorised User.
- 4.2 Authorised Users are responsible for safeguarding their password and acknowledge and agree that their username and password shall be used for personal use only, and not be disclosed by them to any third party.
- 4.3 Authorised Users agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
- 4.4 The Licensor reserves the right to suspend or terminate any Authorised User account and an Authorised User’s access to the Website if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, incomplete or otherwise in violation of these Terms and Conditions.
- 4.6 By registering an account, the Authorised Users warrant that:
- 4.6.1 he/she is a registered member of Benchmark Retirement Fund and is authorised by the Licensee to register an account;
- 4.6.2 the information provided:
- 18.104.22.168 is accurate and not false, misleading, deceptive or fraudulent;
- 22.214.171.124 does not breach any Intellectual Property Rights of a third party;
- 126.96.36.199 does not contain confidential information or trade secrets of a third party (unless the consent of the third-party owner has been obtained);
- 4.6.3 he/she will not transmit misleading or inaccurate information of any kind, whether of a commercial nature or otherwise;
- 4.6.4 he/she will adhere to the Terms and Conditions of this Website.
5.2 The Authorised User acknowledges that the Licensor may suspend access to the Product by the Authorised User, at any time, without notice, should such access be in breach of this clause 5.
5.3 Any use of the Product in breach of this Agreement Authorised Users, which in the Licensor’s judgment threatens the security, integrity or availability of the Product, may result in the immediate suspension of the Product. the Licensor will, however, use all commercially reasonable efforts under the circumstances to provide the Licensee with notice and an opportunity to remedy such violation or threat prior to such suspension.
6 WARRANTIES AND LIMITATION OF LIABILITY
- 5.1 Authorised Users agree to not:
- 5.1.1 use the Product:
- 188.8.131.52 for any unlawful purposes or in a manner which infringes the Licensor’s rights or the rights of any other person or restricts or inhibits the use of the Product by any other person;
- 184.108.40.206 to post or transfer any material that is unlawful or violates any third party’s rights or which is obscene, misleading, inaccurate, defamatory, illegal, in breach of any copyright or other Intellectual Property Rights, or damaging to data, software or the performance of the Licensor’s or any other parties’ computer networks or systems;
- 220.127.116.11 in a way that constitutes fraud, abuse, a security risk or a violation of privacy or security;
- 18.104.22.168 in connection with any unlawful activity, including any criminal activity;
- 22.214.171.124 to send spam or for e-mail-,SMS,instant messaging or calls abuse. This includes: (i) mail-bombing; (ii) sending unsolicited commercial e-mails/messages or making unsolicited calls; (iii) e-mails/messages/calls that do not meet the requirements of any applicable laws, including the CPA and the Protection of Personal Information Act, No. 4 of 2013 (iv) sending emails that exceed contracted for capacity;
- 126.96.36.199 to develop any product which competes with the Product;
- 188.8.131.52 in a manner that is in contravention of any applicable laws including intellectual property and copyright laws;
- 5.1.2 modify, translate, generate derivative works from, reverse engineer, decompile, attempt to derive source code from the Product or create derivative works based upon the Product;
- 5.1.3 gain access to or attempt to gain access to any account, computers or networks related to the Product without authorisation;
- 5.1.4 remove, add, alter, obscure any trademarks, trade names, logos, patent or copyright notices or markings, proprietary and/or other legal notices used on or in connection with the Product;
- 5.1.5 interfere with or disrupt the integrity or performance of the Product or third party data contained therein;
- 5.1.6 incorporate the Product into any other software or hardware product.
- 6.1 Save as set out herein and section 61 of the CPA, the Licensor does not make any representations nor, unless expressly given in writing, give any warranty or guarantee of any nature whatsoever in respect of the Product or the suitability for any intended purpose, whether that purpose is notified to the Licensoror not.
- 6.2 While every effort shall be made to ensure the accuracy of information contained in the Product, such information provided by use of the Product is of a general nature and intended as a guide only. It is neither to be construed as financial advice nor to be regarded as a definitive analysis of any Authorised User’s specific financial position. Calculations made/obtained by means of the calculators, planning tools or other facilities made available through the Product are for illustrative purposes only. Authorised Users must not rely on this information to make a financial or investment decision. Before making a decision, Authorised Users should consult a financial planner/advisor to take into account the Authorised User’s particular circumstances, objectives and financial needs.
- 6.3 The Licensor and its directors, officers and employees shall not be responsible and disclaims all liability for any loss, damage (whether direct, indirect, special or consequential) and/or expense of any nature whatsoever, which may be suffered as a result of or which may be attributable, directly or indirectly, to the use of, or reliance upon any information, links or service provided the use of the Product.
- 6.4 While every effort shall be made to ensure the accuracy of information contained in the Product, the Licensor and its directors, officers and employees provide no representation or warranty, express or implied, regarding the accuracy, completeness or correctness of such information.
- 6.5 Notwithstanding any other provision of this Agreement, the Licensor shall not be liable for any loss, liability, damages, whether direct, indirect, consequential or expense of whatsoever nature and howsoever arising which is caused by or attributable to:
- 6.5.1 excusable delays;
- 6.5.2 the fact that the Product is not functioning properly or at all at any particular stage;
- 6.5.3 a delay in providing or repairing the Product or the total or partial interruption of access to/use of the Product;
- 6.5.4 the unlawful or fraudulent accessing by a third party of the Licensee’s/Authorised User’s telecommunication lines or other telecommunication equipment;
- 6.5.5 any act or omission of the Licensor, its servants, agents and sub-contractors and/or any breach of the Licensor’s obligations in terms of this Agreement;
- 6.5.6 the unlawful or fraudulent accessing by a third party of the Licensee’s telecommunication lines, PBX (Private Branch Exchange) or other telecommunication equipment and in such circumstances, the Licensee shall remain liable for all charges incurred pursuant to such unlawful or fraudulent access and hereby indemnifies the Licensor against all loss, liability, damage or expense which either Party may suffer as a result thereof.
- 7.1 Personal Information is collected through the use of and access to the Product either automatically (electronically through the use of various technologies) or voluntarily when such Personal Information is provided by Authorised Users when registering an account or using the Product
- 7.2 The Personal Information will be kept in the strictest confidence and not sold or made known to third parties except insofar as may be required/permitted by law.
- 8.1 the Licensor reserves the right in its sole discretion to modify the content of the Product or to modify these Terms and Conditions at any time and without prior notice to Authorised Users.
- 8.2 If these Terms and Conditions are modified, the modification will be posted on the Website and will also update “the last updated date” at the top of the Terms and Conditions.
- 8.3 Changes to the Terms and Conditions will be effective at the time of posting.
- 8.4 Authorised Users’ continued access or use of the Product will constitute acceptance of the modified terms.
- 8.5 If the modified Terms and Conditions contain material changes applicable to existing Authorised Users (by decreasing rights or increasing responsibilities) the Licensor will provide Authorised Users with notice prior to the changes taking effect.
- 8.6 If the modified Terms and Conditions are not acceptable to any Authorised User, the only recourse is to cease using the Product and to close the Authorised User account by emailing the Licensor at email@example.com. If the Authorised User does not close its account and continue using the Product, the Authorised User will be deemed to have accepted the changes.
- 9.1 Authorised Users can contact the Licensor at firstname.lastname@example.org to provide any feedback/complaint(s) with regard to the Product and the counselling tools it provides.
- 9.2 The Licensor reserves the right to suspend or terminate an Authorised User’s account at any time.
11 OWNERSHIP AND INTELLECTUAL PROPERTY
- 10.1 The use of this Product is entirely at Authorised Users’ own risk.
- 10.2 To the extent permissible pursuant to applicable law, the Licensor disclaim all warranties of any kind, either express or implied, including but not limited to the content/accuracy of the Product Content. No oral or written information provided by the Licensor shall create a warranty, nor shall Authorised Users rely on any such information or advice.
- 10.3 Whilst the Licensor takes reasonable measures to ensure that the Product Content is accurate and complete, the Licensor makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Website or as to the accuracy, completeness or reliability of any information on the Website.
- 10.4 This Product may contain links or references to other websites (“Third Party Websites”) which are outside of the Licensor’s control. These Terms and Conditions do not apply to those Third Party Websites and the Licensor is not responsible for the practices and/or privacy policies of those Third Party Websites or the “cookies” that those sites may use.
12 LINKS TO OTHER WEBSITES
- 11.1 The Product Content are protected by law, including but not limited to copyright and trade mark law. The Product Content is the property of the Licensor and/or is licensed to the Licensor and Authorised Users may not copy, duplicate or use such content/information unless agreed with the Licensor.
- 11.2 Authorised Users will not acquire any right, title or interest in or to the Product Content.
- 11.3 The Licensor name and trademarks, the Licensor logo and all related names, logos, product and service names, designs and slogans are trademarks of the Licensor or its affiliates or licensors. Authorised Users may not use such marks without the prior written permission of the Licensor. All other names,logos, product and service names, designs and slogans on the Website are the trademarks of their respective owners.
- 11.4 Where any of the Product Content have been licensed to the Licensor or belongs to any third party, your rights of use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
13 AVAILABILITY/ACCESS AND TERMINATION
- 12.2 Some of the content, advertising, and functionality of the Product may be provided by third parties that are not affiliated with the Licensor. Such third parties include:
- 12.2.1 advertising providers, which help the Licensor and our advertising customers provide advertisements that are tailored to Authorised Users’ interests and understand how Authorised Users respond to those advertisements;
- 12.2.2 audience-measurement companies, which help the Licensor measure the overall usage of the Product and compare that usage to other online services; and
- 12.2.3 social networking services (like Facebook, Twitter, LinkedIn, Instagram and others) that enable Authorised Users to register and log into certain of the Licensor services and to share things found by Authorised Users with an Authorised User’s social network. This is only applicable if an Authorised User chooses to connect with a social networking service. The Licensor may provide other registration and login methods.
14 APPLICABLE LAW
- 13.1 The Licensor will use reasonable endeavours to maintain the availability of the Product, except during scheduled maintenance periods, and are entitled to discontinue providing the Product or any part thereof with or without notice to Authorised Users.
- 13.2 The Licensor may in its sole discretion terminate, suspend and modify this Product, with or without notice to Authorised Users. Authorised Users agree that the Licensor will not be liable to any Authorised User in the event that it chooses to suspend, modify or terminate this Product.
- These terms shall be solely and exclusively governed by and construed and interpreted in accordance with the law of the Republic of South Africa.
16 INFORMATION DISCLOSURE
- If any item or provision contained in this Agreement or any part thereof (in this clause 15 called the “Offending Provision”) is declared or becomes unenforceable, invalid or illegal for any reason whatsoever,including but not detracting from the generality of the foregoing, by a decision by any competent court, applicable legislation or any statutory or other by-laws or regulations or any other requirements having the force of law,the other terms and provisions of this Agreement shall remain in full force and effect as if this Agreement had been executed without the Offending Provision appearing herein
- The following information of ourselves is disclosed in terms of section 43 of the Electronic Communications and Transactions Act, No. 25 of 2002, of South Africa:
Full name and legal status:
THE BENEFIT COUNSELLOR (PTY)LTD,a private company incorporated under the laws of the Republic of South Africa
201 Pinehurst Building;
Somerset Links Office Park;
(to be used for all legal service)
201 Pinehurst Building;
Somerset Links Office Park;
+ 27 (0)21 200 1456