Last updated: 16 August 2019

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All clauses in these Terms displayed in parenthesis are provisions which limit the risk or liability of KMI and KMG and constitute an assumption of risk or liability by you, impose an obligation on you to indemnify KMI and KMG or is an acknowledgement of a fact by you. Please read these clauses carefully before agreeing to these Terms.

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1. DISCLAIMER

1.1. KMI and KMG do not endorse any information, statement, opinion, or other content on the Platform or provided in the Services to be accurate or reliable and this content does not constitute professional, legal, financial or other advice.

1.2. KMI and KMG provide all information on the Platform or with the Services for information purposes only. You should therefore not rely upon it when making any decisions or when transacting.

1.3. If you rely on any information on the Platform or with the Services, you do so strictly at your own risk. KMI and KMG will not be responsible for any loss whatsoever which may arise if you rely on information or materials published on the Platform or with the Services.

2. INTRODUCTION

2.1. These terms and conditions ("Terms") of Knowledge Mentoring Institute Proprietary Limited, a company registered in South Africa ("KMI"), and Knowledge Mentoring (Global) Limited, a company registered in the United Kingdom ("KMG") (KMI and KMG referred to collectively as "us" or "we" in these Terms) contractually regulates the use of the websites https://www.kminstitute.co.za/ and https://www.knowledgementoring.com/, including all sub-domains ("Website"), the web-based Mobile Headquarters (MHQ) administration management and analytic dashboards console, made available on the Website, the KnowledgeMentor mobile app as downloaded from the Google Play Store or Apple App Store (com.kmi.mkmapp) ("App") and the services that we (and our resellers) offer ("Services") through the App and/or Website (collectively referred to as the "Platform"). These terms apply to the individual users of the Platform ("Users" or "you") and create a legally binding agreement between us and you and will apply as soon as you use the Platform.

2.2. We make the Platform and Services available to you as a result of your relationship or affiliation with a specific organisation, such as your employer, school, university or other institution, which is a client of KMI or KMG or of our value added resellers (and referred to in these Terms as the "Client"). Using the Platform and Services is also subject to any agreement between you and the Client (like your employment agreement or company policies for example).

3. WHEN DO THESE TERMS APPLY?

3.1. These Terms will apply when you use the Platform and Services as a User to the extent that they are applicable to you. You are required to accept these Terms when you download the App or when you access the Services through the Platform.

3.2. By agreeing to these Terms, you are entering into a legally binding agreement with KMI or KMG. Where you are based in Africa, your agreement is with Knowledge Mentoring Institute Proprietary Limited (South African company registration number 1998/022535/07), with its registered address at 493 Rooibekkie Crescent, Featherbrooke Estate, Johannesburg, South Africa, 1746. For all Users based outside of Africa, your agreement is with Knowledge Mentoring (Global) Limited (United Kingdom company registration number 11771555, with its registered address at 115c Milton Road, Cambridge, CB4 1XE.

3.3. To use any of our Services or the Platform you must agree to these Terms. We reserve the right to refuse any request for our Services or the use of the Platform without notice or reason.

3.4. These Terms will also apply to any future services and interaction channels that we may make available, unless stated otherwise.

4. OTHER APPLICABLE TERMS

Using the Platform and Services will be regulated by these Terms as well as our privacy policy available at www.kminstitute.co.za/privacy-policy (the "Privacy Policy") and any agreement between you and the Client (collectively, the "Additional Terms"). If there is a conflict between these Terms and 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) any agreement between you and the Client.

5. CHANGES TO THESE TERMS AND SERVICES

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, and change or remove the Platform from time to time, at our discretion. We will give you 30 (thirty) calendar days' notice of any material changes via email which will contain a link to the updated terms or with a prominent notice on the Platform.

5.2. For continued use of the Platform and Services, you may be requested, from time to time, to accept new or amended versions of these Terms. If you disagree with the changes made, you must stop using our Platform and Services. By continuing to use the Services and Platform after we have provided you with notice of any changes, you agree to be bound to the changes.

6. DURATION OF THESE TERMS

Simply, these Terms (or as updated from time to time) apply for as long as you use our Platform and Services, which will include the period until any disputes have been settled in the event of any disputes arising from the use of the Platform and Services.

7. OUR SERVICES

7.1. We offer a Platform and Services to Clients and Users to facilitate accelerated learning and collaborative engagement through various mentoring methods and technologies. The Platform and the Services are made available by us and our value added resellers to the Client and to you, to facilitate professional growth, development and communication in closed group collaborations based on pre-defined and structured knowledge themes.

7.2. The Services that are available for your use are determined by the Client, and we make those Services accessible via the Platform.

7.3. The specific details about the Services are available on the Website and as described or displayed on the Platform.

8. YOUR ACCOUNT AND INFORMATION

8.1. In order to access the Platform, the Client has provided certain personal information to us to onboard you to the Platform, from which you will create an account. Once you have created an account, you will be a User for purposes of these Terms. You can only access the Services on the Platform once a Client has onboarded you.

8.2. You are solely responsible to keep your account access information – username and password – safe. If anyone enters your account access information (whether that be you, or anyone else), we assume that the person using the Platform or Services is you.

8.3. You may not share your account with other Users. Only you may use your account to access the Platform 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, the Platform or the Services.

8.4. It is in your interests to familiarise yourself with our security requirements, guidelines and procedures as we communicate them from time to time and follow these carefully.

8.5. You must inform us and the Client immediately if there has been, or if you suspect, any breach of security, confidentiality or of your account, and then you must update your account access information.

8.6. In respect of your information, the Client will obtain any consents or permissions from you that are required for us and the Client to lawfully use your information in making the Platform and Services available.

9. USING THE PLATFORM AND SERVICES

9.1. When you use the Platform and Services, you will interact and share information with other users. The Client determines which users you will be able to interact with and may include users that are affiliated with the Client and/or users affiliated with other KMI and KMG clients.

9.2. Certain information in your account will be 'public' information, being information that is visible to other users of the Platform and Services and may include your name, the Client that you are affiliated with, the team you form part of, etc. This public information is shared with other users so that they are able to identify and interact with you.

9.3. When a user publishes any information on the Platform, that information is considered owned by the Client that the user is affiliated with and the Client has ultimate control over that information.

9.4. Any information that you publish on the Platform, such as messages to other users, is published by you voluntarily and will be visible to the users that you have chosen to share that information with, whether in a direct message or in a channel accessible by various users, as well as the Client and us. The information will not be accessible by users that you have not chosen to share the information with.

9.5. The Platform and Services may only be used for the purposes specified by the Client. All content posted to the Platform must be strictly aligned to the purposes determined by the Client. The Client, and KMI and KMG, have the right to remove any activity from the Platform that does not comply with the specified purposes. The Client will inform you of any relevant policies and practices that apply when you use of the Platform and the information that you may publish on the Platform.

9.6. Due to the nature of the Platform, the information shared on the Platform is accessible by other users and we cannot guarantee that other users will not use such information for their own benefit. Therefore, you acknowledge and agree that we are not responsible for any misuse or appropriation of any information that you publish on the Platform.

9.7. You must not publish any confidential or proprietary information or intellectual property on the Platform that you are prohibited from sharing. Users must ensure that any other user that might access such information is authorised to access such information.

9.8. Any views, opinions, advice or other information expressed or published on the Platform are strictly those of the individual User (publisher) and will under no circumstances be considered the views, opinions, advice or information of KMI or KMG (or of our value added resellers). You take all risk in expressing or relying on any views, opinions, advice or other information expressed or published on the Platform.

9.9. You are responsible for ensuring that any view, opinion, advice, content or other information expressed or published on the Platform is suitable for the users that will access that information. 

10. ACCEPTABLE USE

10.1. Some devices may not support the use of the Platform. You are responsible to keep your device(s) updated and/or in a condition for them to support using the Platform, including internet access capabilities.

10.2. You must respect our Platform and Services and the associated intellectual property in utmost good faith and use it only as we intend it to be used. If you use the Platform and Services in a way to violate this undertaking, we may terminate your access to the Platform or Services.

10.3. We will be the sole judge of what constitutes a violation of your undertaking to use the Platform and Services, but these will likely be good grounds:

10.3.1. copying or distributing any of the content on the Platform without our explicit consent to do so or the consent of the user who posted the content;

10.3.2. providing any untrue or incorrect information to us;

10.3.3. using the Platform in a manner that harms minors or persons that are at risk;

10.3.4. using the Platform in order to build a competitive or similar product or service;

10.3.5. impersonating any person or entity, including another user or Client;

10.3.6. changing, modifying, copying, decompiling, circumventing, disabling, tampering with, or any part of, the Platform, including the security features or reverse engineering the Platform or assisting any third party to do so;

10.3.7. infecting the Platform with any software, malware or code that may infect, damage, delay or impede the operation of the Platform or which may intercept, alter or interfere with any data generated by or received through the Platform;

10.3.8. using malicious search technology, including, but not limited to, spiders and crawlers;

10.3.9. deep linking to any pages of the Platform or engaging in any other conduct in a way to suggest that you are the owner of any intellectual property in the Platform or Services;

10.3.10. allowing any third party to use your account in any manner other than as permitted by these Terms;

10.3.11. using the Platform for personal marketing or advertising purposes, the sending of unsolicited communications or spam;

10.3.12. using the information of other users to contact users outside the Platform without their express consent to do so; or

10.3.13. posting 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.

10.4. You may not engage in any activity that results in the operation of the Services or Platform or any content made available on the Platform being recorded in any way for any purpose whatsoever. This includes taking screenshots or videos of the Platform or creating any material that shows the functioning of the Platform.

11. MONITORING

You agree that the Client and KMI and KMG (and any reseller where the Client has engaged with us through a reseller) will have access to the content published on the Platform and may, subject to any applicable laws, monitor your activities within the Platform and how you use the Services.

12. CANCELLATION AND SUSPENSION

12.1. If you breach these Terms, we may cancel or suspend your account or access to the Platform and/or use of the Services in our sole discretion and without any liability to you or any third party.

12.2. In addition, we may cancel or suspend your account, terminate these Terms, or suspend our obligations if:

12.2.1. we become aware of circumstances that lead us to believe that you will not perform your obligations required by these Terms;

12.2.2. you have used the Platform to breach the intellectual property rights of any third party;

12.2.3. we have been instructed to suspend or terminate your account by the Client that you are affiliated with;

12.2.4. you have not used your account, the Platform or the Services for 3 (three) years and are therefore considered to be an inactive User; or

12.2.5. you are no longer affiliated with a Client of KMI or KMG (or any reseller where the Client has engaged with us through a reseller).

12.3. You may stop using the Platform and Services at any time at your discretion by deleting any version of the Platform that is in your possession and the content that you have received from the Platform. We may inform the Client of any such actions.

12.4. 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.

12.5. Upon termination of these Terms:

12.5.1. you must make all reasonable efforts to delete all parts of the Platform and/or Services held by you in any format whatsoever;

12.5.2. you must immediately stop using the Platform and Services;

12.5.3. we will suspend your account and you will no longer be able to access any portion of the Platform or Services that requires an account; and

12.5.4. we will retain your Personal Information generated as a result of your use of the Platform and Services for a reasonable period in line with the Privacy Policy.

13. CONSENT REQUIRED FOR MINORS

13.1. If you are not 18 (eighteen) years old, you may not use the Platform or Services without the consent or assistance of a parent or guardian.

13.2. 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 the Platform and/or Services is independent from KMI and KMG and we will not be a party to any such legal action.

14. ELECTRONIC MESSAGES AND COMMUNICATION

14.1. We will primarily use email and electronic notices on the Platform to communicate with you about our Services or these Terms. This may also include SMS (short message services), WhatsApp or telephone.

14.2. 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).

15. THIRD PARTY SITES

15.1. We may provide certain hyperlinks to third party websites or apps only for your convenience, and if we include any hyperlinks or any advertisement of any third party on our Platform, it does not imply that we endorse the websites or apps, their products, business or security practices or any association with its operators.

15.2. You access and use any third-party websites, apps, products, services, and/or business, solely at your own risk.

16. INTELLECTUAL PROPERTY RIGHTS

16.1. You acknowledge and agree that all right, title and interest in, and to, any intellectual property used in providing the Platform and Services (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 Platform or 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 KMI or KMG or the respective owner(s) of the intellectual property and will remain our or the owner's property at all times.

16.2. You agree that you will not acquire any rights of any nature in respect of that intellectual property by using the Platform or Services.

17. WARRANTIES AND REPRESENTATIONS

Subject to applicable laws:

17.1. we give no guarantee of any kind concerning the content or quality of the Platform or Services and our Services are not to be considered as advice of any kind;

17.2. we do not give any warranty (express or implied) or make any representation that the Platform or Services will operate error free or without interruption or that we will correct any errors or that the content is complete, accurate, up to date, or fit for a particular purpose; and

17.3. we make no representations to you, either express or implied, and we will have no liability or responsibility for the proper performance of the Platform, Services and/or the information, images or audio contained on the Platform. Our Platform and Services are used at your own risk.

17.4. You warrant to and in favour of us that:

17.4.1. you have the legal capacity to agree to and be bound by these Terms; and/or

17.4.2. you have the consent of a parent/guardian if you are younger than 18 (eighteen) years old or that you are 18 (eighteen) years or older; and

17.4.3. these Terms constitute a contract valid and binding on you and enforceable against you.

17.5. Each of the warranties given by you will:

17.5.1. 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;

17.5.2. continue and remain in force irrespective of whether these Terms are active, suspended or cancelled; and

17.5.3. be deemed material.

18. LIMITED LIABILITIES

18.1. To be clear:

18.1.1. we will not be liable for any loss arising from you using the Platform or Services or if you rely on the information on the Platform or in the Services or that KMI or KMG or our resellers provides as part of the Services;

18.1.2. we will not be liable to you for any loss caused by using the Platform or Services or your liability to any third party arising from those subjects. This includes but is not limited to:

18.1.2.1. any loss suffered by you or claim against you as a result of another user's use of the information that you publish on the Platform;

18.1.2.2. any loss suffered by you as a result of your use of or reliance on information published by other users on the Platform;

18.1.2.3. any interruption, malfunction, downtime, off-line situation or other failure of the Platform, system, databases or any of its components;

18.1.2.4. any loss or damage regarding your data or other data directly or indirectly caused by malfunction of the Platform; and

18.1.2.5. 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;

18.1.3. we will not be liable if any material available for downloading from the Platform is not free from infection, viruses and/or other code that has contaminating or destructive properties;

18.1.4. the Platform 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;

18.1.5. 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 the Platform and Services. However, despite this, information that is transmitted over the internet may be susceptible to unlawful access and monitoring; and

18.1.6. 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.

19. INDEMNITY

You indemnify, defend and hold us (including our shareholders, directors and employees and resellers) harmless from any damages, losses, liabilities and costs (including, but not limited to, reasonable attorneys' fees) related to any third party claims, charges or investigations caused by your breach of these Terms or applicable laws, including as a result of any content uploaded to the Platform that violates applicable laws or the rights of any third party.

20. FORCE MAJEURE

Except for the obligation to pay monies due and owing, neither you nor we will 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).

21. ARBITRATION

21.1. 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) will 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.

21.2. 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.

21.3. Unless otherwise agreed, the rules of Commercial Arbitration as stipulated by AFSA will apply to such arbitration.

21.4. That arbitration shall be held:

21.4.1. with only the parties and their representatives present;

21.4.2. at Cape Town.

21.5. The provisions of this clause 21 are severable from the rest of these Terms and shall remain in effect even if these Terms are terminated for any reason.

21.6. The arbitrator's award shall be final and binding on the Parties and incapable of appeal.

22. LEGAL DISCLOSURE

22.1. Global Platform owner and IP developer: Knowledge Mentoring Global Limited (trading as "KMG"), registered in the United Kingdom, with company registration number 11771555.

22.2. South African Platform owner and licenced developer: Knowledge Mentoring Institute Proprietary Limited (trading as "KMI"), registered in South Africa with company registration number 1998/022535/07.

22.3. Legal status: KMI is a private company, duly incorporated in terms of the applicable laws of the Republic of South Africa and KMG is a private limited company, duly incorporated in the United Kingdom.

22.4. Director: P Marsh.

22.5. Description of main business of KMI and KMG: KMI and KMG are niche innovators and developers of mobile app-based knowledge mentoring technology solutions and responsive web-mobile supporting administration consoles and analytic dashboards. KMI and KMG change the way that large learning-organisations and dispersed knowledge-hungry communities share and leverage knowledge.

22.6. Email address: mailto:info@kminstitute.co.za.

22.7. Website address: https://www.kminstitute.co.za/ and https://www.knowledgementoring.com/. 

22.8. Physical and registered address:

22.8.1. South Africa: 493 Rooibekkie Crescent, Featherbrooke Estate, Johannesburg, South Africa, 1746.

22.8.2. United Kingdom: 115c Milton Road, Cambridge, CB4 1XE.

22.9. Postal address:

22.9.1. South Africa: PO Box 108, Featherbrooke Estate, 1746 Gauteng, South Africa.

22.9.2. United Kingdom: 115c Milton Road, Cambridge, CB4 1XE.

23. GENERAL

23.1. Suspension of the Platform: we may temporarily suspend the Platform for any reason, including if we repair or upgrade the Platform or other systems. We will take reasonable efforts to notify Users of suspensions in advance.

23.2. 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.

23.3. Confidentiality: neither party may disclose any confidential information to any third party without the prior written approval of the other party, unless required by law.

23.4. Law and jurisdiction: these Terms and all obligations connected to them or arising from them will 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.

23.5. Good faith: the parties will in their dealings with each other display good faith.

23.6. No waiver: if KMI or KMG do not insist upon or enforce strict performance by the User of any provision of these Terms when they are entitled, or do not exercise any right under these Terms, it does not mean that they have waived their rights to enforce any such provision or right in any other instance.

23.7. No assignment: the User may not cede its rights or delegate its obligations in terms of these Terms without the express prior written consent of KMI or KMG.

23.8. 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.

23.9. No representation: to the extent permissible by law, no party will 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.

23.10. 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 will be severed from the balance of these Terms, without invalidating the remaining provisions of these Terms.

23.11. No stipulation: no part of these Terms will 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.

23.12. Notices:

23.12.1. KMI selects 493 Rooibekkie Crescent, Featherbrooke Estate, Johannesburg, South Africa, 1746 as its physical address and mailto:info@kminstitute.co.za as its email address in South Africa and KMG selects 115c Milton Road, Cambridge, CB4 1XE as its physical address and mailto:philip@knowledgementoring.com as its email address in the United Kingdom 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.

 

23.12.2. 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 KMI or KMG with 7 (seven) calendar days' notice in writing.

23.12.3. 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.

23.12.4. In the event that KMI or KMG requires the physical address of the User for the service of any notice, the User agrees that KMI or KMG may request the address from the Client.