IMPAQ (PART OF OPTIMI HOME (PTY) LTD) STANDARD AGREEMENT
Terms and Conditions
This Agreement is entered into by and between the Company and the Legal Guardian/Account Holder.
- Impaq means Optimi Home (Pty) Ltd, Registration Number: 2011/011959/07, a limited liability private company duly incorporated in South Africa, a private company that sells educational Products and Services (which can be utilised in conjunction with other Impaq Supplementary Offerings and/or private and independent services offered by third parties), and which include but are not limited to educational programmes and modules, lesson material, examinations, assignments, and support, administration services and Supplementary Offerings (hereinafter referred to as the “Products and Services”).For the purposes of this Agreement:
- “Affiliate” means, as to any party to this Agreement, any other person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such party. For the purposes of this definition, reference to the term “control” or its correlative terms shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such party, whether through the ownership of voting rights, by contract or otherwise;
- “Account Holder” means the account holder, as stipulated in the Application, who has undertaken, both in this Agreement and on the Application, to make payment of all amounts due to the Company in respect of the Company’s provision of the Products and Services, and can also be the Legal Guardian as defined herein;
- “Agreement” means this Agreement read in conjunction with the Application completed;
- “Application” means the application process completed by the Legal Guardian/Account Holder, whether online or telephonically, for the purposes of this Agreement. The Application is linked to, and read with, the provisions of this Agreement;
- “Company” means the entity, as stipulated in the Application, concluding this Agreement with the Legal Guardian/Account Holder;
- “Company Platform” means any one or more online systems prescribed by the Company from time to time, which without limitation, must be used for managing Learner records, account administration and academic guidance;
- “Company Policy” means any policy, regulation, rule, or similar proclamation published on the Company Platform and/or communicated by the Company directly to the Legal Guardian/Account Holder in writing, regulating any aspect relating to the Company and/or the Products and/or Services. The Company Policy shall be determined by the Company from time to time in its sole and absolute discretion, and such Company Policy, upon publication on the Company Platform and/or dispatch of direct written notification by the Company to the Legal Guardian/Account Holder, shall substitute and replace the parallel and/or equivalent preceding Company Policy (if any);
- “Learner” means any learner, as stipulated in the Application, who is activated on the Company’s platform(s) to receive Products and/or Services;
- “Legal Guardian” means the person, as stipulated in the Application, who is either (a) the parent or legal guardian of a Learner; or (b) the person who has legal custody of a Learner; or (c) the person that undertakes to perform the duties of a person who is referred to in (a) and (b);
- “Personal Information” shall have the meaning as defined in Section 1 of POPIA;
- “POPIA” means the Protection of Personal Information Act 4 of 2013;
- “Process”, as well as a derivation thereof, shall have the meaning as defined in Section 1 of POPIA;
- “Products” means the lesson material and related products offered by the Company, from time to time, to the Legal Guardian/Account Holder and/or the public irrespective of whether the same is printed or in digital format;
- “Services” means the services offered by the Company, from time to time, to the Legal Guardian/Account Holder and/or the public;
- “Supplementary Offerings” means the Impaq Online School and/or the Optimi Campus facilities and any other offering Impaq may identify as such from time to time.
- “Tutor” means any individual or independent entity that has been activated on the Company’s system in order to use the Products and/or Services in the performance of private tutor services to Learners.
- The Legal Guardian undertakes to ensure compliance with the requirements of the South African Schools Act, no 84 of 1996 (as amended) (“the Act”), in particular:
- In terms of Section 3 of the Act, it is every Legal Guardian’s responsibility to ensure that every Learner for whom he or she is responsible attends a school once they reach the appropriate age and, as such, is educated and trained;
- In terms of Section 51 of the Act, the Legal Guardian of a Learner, of compulsory school-going age and who does not attend a public or independent school, must apply to the Head of the applicable Department of Education to register such Learner(s) to receive education at home;
- The education provided to the Learner will be of a standard not inferior to the standards provided by public schools;
- The Legal Guardian is required to ensure that the Learner’s progress is assessed in accordance with the applicable laws regulating a Learner’s education; and
- The Legal Guardian will also be required to comply with all other reasonable conditions set out by the Head of the applicable Department of Education. These conditions may differ in each province.
- In the event that the Learner is not resident in the Republic of South Africa, the Legal Guardian hereby undertakes to abide by all relevant legislation and policy pertaining to the Learner’s educational requirements, as may be in effect from time to time in the Learner’s country of residence.
- Any Application completed online and/or telephonically with the Company by the Legal Guardian/Account Holder shall constitute an offer to the Company, and the Agreement between the Legal Guardian/Account Holder and the Company shall be deemed to have been concluded only once such Application has been received and accepted by the Company at its head office. Furthermore:
- The Company shall not be required to provide the Legal Guardian/Account Holder with express acceptance of its offer, and the provision of any Products and/or Services shall constitute acceptance;
- No offer shall be considered unless the Legal Guardian/Account Holder complies with the minimum requirements set out in the Application, and in this regard, the Company reserves its right to refuse any offer made;
- This Agreement shall start on the date of the Learner’s activation on the Company’s platform and shall be valid in respect of the relevant academic year that this Agreement was concluded for, as stipulated in the Application;
- This Agreement shall subsist for the relevant academic year unless terminated early in terms of this Agreement and shall automatically terminate at the end of the relevant academic year. In terms of this Agreement, the academic year is deemed to end on 31 December. In the event the Company allows the Legal Guardian/Account Holder continued access to certain Products and/or Services after the end of the relevant academic year, the provisions of this Agreement shall continue to apply in respect of such access;
- This Agreement is not capable of being renewed, and a new agreement shall be concluded in respect of each academic year.
- The Legal Guardian/Account Holder acknowledges:
- The Supplementary Offerings are products and services offered in addition to the homeschooling Products and Services and are not equivalent to or to be used as a substitute for the Impaq Products and Services for the purposes of home education.
- No Tutor is authorised to conclude an agreement for the provision of Products and/or the rendering of Services on the Company’s behalf;
- A Tutor may not charge or accept payment of any kind in respect of the Products and Services;
- A Tutor’s activation on the Company’s system, or listing of a Tutor on the Company Platform, does not imply accreditation with the Company;
- The Company does not regulate the services rendered by a Tutor, which are private services and independent from the Products and/or Services offered in terms of his Agreement;
- Any agreement between the Legal Guardian/Account Holder and a Tutor shall not be construed as part of this Agreement. The Company shall not be responsible for any agreement entered into between the Legal Guardian/Account Holder and a Tutor, and the relationship between the Legal Guardian/Account Holder and such Tutor will not be regulated by this Agreement.
- The Legal Guardian/Account Holder guarantees and undertakes that:
- The information provided in the Application and in connection with this Agreement is both true and accurate, and this is a material term of the Agreement;
- If so requested, additional documentation required by the Company will be the original document or will be certified as a true copy of the original;
- He/she is fully familiar with the Company’s most recent Company Policy and shall comply with any applicable Company Policy.
- All amendments or adjustments that the Legal Guardian/Account Holder wishes to make in respect of the Learner’s registration on the Company’s platform must be made in writing within seven (7) calendar days of the date of registration on the Company’s platform. Any changes of whatsoever nature by the Legal Guardian/Account Holder in respect of the Learner’s activation on the Company’s platform shall result in additional costs, which include but are not limited to the administration costs stipulated in the Company Policy or by the Company from time to time.
- The Company, its Affiliates, agents, sub-contractors and authorised service providers (“Authorised Partners”) may Process the Personal Information of the Legal Guardian, Account Holder and/or Learner (“Data Subject”) provided by the Data Subject to the Company and/or held by any Authorised Partner associated with the Data Subject, as is necessary or desirable for rendering the Products and/or Services and/or administering this Agreement (“Relevant Information”). The Legal Guardian/Account Holder hereby, on their own behalf and on behalf of the Learner, consent to such Processing of Personal Information as well as authorises:i) The Authorised Partners to Process all Relevant Information and transfer and share all Relevant Information between the Authorised Partners in order to register the Data Subject for, and to perform, additional or related services offered by the Authorised Partners;ii) The Authorised Partners to store and transmit all Relevant Information in electronic form; andiii) The transfer of the Relevant Information to any jurisdiction in which the Authorised Partners consider appropriate.
- All Authorised Partners shall implement reasonable technical and organisational measures to secure the integrity and confidentiality of the Relevant Information as well as prevent loss, damage, and unauthorised or unlawful access thereto.
- The Data Subject shall at all times have the right to access and request amendments to the Relevant Information as well as withdraw any consent to the Processing of the Relevant Information. Withdrawal of such consent may affect or prevent the Authorised Partners from rendering Products and/or Services and the Data Subject shall have no claim against the Authorised Partners in this regard, however, the Legal Guardian/Account Holder shall remain liable to the Company in terms of this Agreement, including any fees and charges that may be charged in respect of Products and/or Services that may no longer be rendered due to such withdrawal of consent to Processing.
- The Legal Guardian/Account Holder hereby confirms that the Learner complies with the prescribed guidelines for activation in terms of the chosen Company Products as set out from time to time by the Company, any external assessment body, or any applicable regulatory body. If the Learner fails to submit the required proof or information when requested to do so by the Company, the Company may elect to cancel the Learner’s activation, and the prescribed cancellation costs will apply as stipulated in the Company Policy.
- The Legal Guardian/Account Holder is required to familiarise himself/herself with the requirements and the rules of every Product and Service that is purchased from the Company, with reference to the appropriate curriculum and subjects as well as the minimum requirements for passing the specific programme and/or subjects. The Legal Guardian/Account Holder is fully responsible for the choice of Product and Service.
- The Legal Guardian/Account Holder takes full responsibility and liability for the application of the Products, Services and/or Supplementary Offerings that are purchased. The registration with any external assessment body for Further Education and Training (FET) and the issuing of the National Senior Certificate (NSC), and all costs associated therewith, shall be the sole responsibility of the Legal Guardian/Account Holder unless otherwise agreed.
- The deposit and any other monies as prescribed in the Application to be paid upfront must be paid in full before any Product will be delivered, any Service rendered, or access to the Supplementary Offerings is granted.
- In the event the Legal Guardian/Account Holder directs that the purchased Products are to be sent by courier (as selected) to him/her, the Legal Guardian/Account Holder is deemed to have appointed the courier supplier as his/her agent for the delivery of the Products. The Legal Guardian/Account Holder hereby indemnifies the Company, its directors, officers, employees, and affiliated companies against all liability should the courier supplier fail to deliver any or all of the Products and assumes responsibility for receiving the Products during working hours at the address provided. The Legal Guardian/Account Holder agrees to pay the non-refundable delivery cost corresponding to the selected delivery method.
- The Legal Guardian/Account Holder is responsible for thoroughly checking and verifying the Products received from the Company within seven (7) calendar days from the date of receipt. If the content is incomplete or contains errors, the Legal Guardian/Account Holder must inform the Company accordingly in writing. If no notice is received from the Legal Guardian/Account Holder within the seven (7) day period contemplated above, the Legal Guardian/Account Holder shall be fully responsible and liable for all possible costs that may be incurred in resending Products.
- All the Company Products remain the property of the Company until such Products have been paid for in full. It is understood that the Company is, in respect of the sale of the Products, only selling the right to utilise the intellectual property contained in any Product that it provides for the duration of this Agreement, and ownership of such intellectual property shall at all times remain vested in the Company.
- It is specifically agreed that all rights whatsoever to the intellectual property contained in the Company’s Products, Services and/or Supplementary Offerings, whether they are capable of registration or not, and including but not limited to the Company’s name, trading name, educational programmes, lesson material, assessments (tasks, test, and examinations), assignments, logo and/or image, remain the sole property of the Company. The Legal Guardian/Account Holder acknowledges and agrees that it will be liable for any damages incurred by the Company, or alternatively, a minimum amount of one hundred thousand Rand (R100 000) in the event that the Legal Guardian/Account Holder copies, reverse engineers, reproduces or distributes the Company’s Products and/or lesson material, or allows any other person to do so when under his/her supervision. The Company also reserves its right to pursue criminal charges against the Legal Guardian/Account Holder in the event of such infringement.
- The Legal Guardian/Account Holder may cancel this Agreement within seven (7) days from the date of delivery of the Products at the nominated address, without incurring any cancellation fees, provided such Products are sent back to the Company’s distributor, in the original packaging, within fourteen (14) days from the date of delivery of such Products. Any cancellation outside of the seven (7) day period shall be dealt with in accordance with the Company Policy (Cancellation and Returns), and the Legal Guardian/Account Holder will remain liable for a percentage of the package price, as well as all non-refundable costs.
- The Legal Guardian/Account Holder acknowledges that he/she is fully responsible for all fees and costs with regards to the Products and Services ordered from, or provided by, the Company and accepts the responsibility to pay the full fees and related administration costs on/before the prescribed dates.
- If the Legal Guardian and the Account Holder differ, the Legal Guardian and the Account Holder hereby undertake to be jointly and severally liable for the payment of all amounts that are or will be payable to the Company. The Account Holder may not be changed until such time as all amounts owing to the Company by the current Account Holder are paid in full.
- The Company retains the right to cancel an application and/or to refuse to supply any Product or Service, including but not limited to access to assessments, access to the Company Platform, as well as administration and support services, in the event:
- The Account Holder fails to make payment in terms of this Agreement; or
- The Account Holder owes any money to the Company in respect of a Learner’s previous registration; or
- The Legal Guardian/Account Holder is in breach of any terms and conditions of the Agreement.
- A certificate under the hand of the financial manager of the Company or its nominee (whose appointment as such it shall not be necessary to prove) stating the indebtedness of the Legal Guardian/Account Holder to the Company in respect of all amounts due in terms of this Agreement, shall serve as prima facie proof of such indebtedness for the purpose of any legal proceedings.
- The Company may cede or assign its rights and duties contained herein at any time to any third party without the prior consent of the Legal Guardian/Account Holder. The Legal Guardian/Account Holder may not be ceded or assigned any rights or duties obtained in terms of this Agreement without the Company’s prior written consent.
- The physical address and the email address that the Legal Guardian/Account Holder provides in the Application is his/her address for the purposes of delivery of legal notices or any communication with regards to this Agreement. Any correspondence sent to the nominated address will be deemed to have been received by the Legal Guardian/Account Holder. The Company shall be entitled to affix notices to the premises, at the physical address, in the event the recipient is not present, and such affixing shall be sufficient service. The Legal Guardian/Account Holder undertakes to inform the Company in writing by means of prepaid registered post, email, or fax of any change of address. Such change of address shall be effective from the date of receipt of such written notice by the Company.
- The Legal Guardian/Account Holder hereby agrees that the law of the Republic of South Africa shall govern this Agreement, and further agrees to the jurisdiction of the Magistrates’ Court and acknowledges that he/she will be liable for all legal costs, including costs on an attorney-and-client scale if the amounts due for the Products and Services are not paid timeously according to the payment method chosen in the Application process.
- The Account Holder hereby renounces any benefits to which it may be entitled to in law, without limiting the extent of the foregoing, the benefits of “no value received, revision of accounts, non numerata pecuniae (that no money was paid to the Account Holder), non causa debiti (that there does not exist valid grounds for the debt/s) errore calculi (that there was a mistake in the calculation of any outstanding amount), and revision of accounts”, the meaning and effect of which the Account Holder understands and acknowledges that he/she is fully acquainted with.
- No variations or amendments to this Agreement or waiver of any rights or cancellation thereof will be valid unless placed in writing and signed by both the Legal Guardian/Account Holder and the Company or its duly authorised representative. When interpreting this Agreement, the terms of any valid amendment or variation shall prevail.
- No failure on the part of the Company to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way the Company’s right to require performance of any such provision at any time in the future.
- The Company, its directors, employees, officers, agents, consultants, service providers and affiliated companies will not be responsible for any direct, indirect or consequential losses suffered by the Legal Guardian/Account Holder or Learner, including death, injury of whatsoever nature, losses of profits or data and delays, whether on the basis of contract or delict, that arise from the use of the Products and Services and/or Supplementary Offerings, when used as a home education product or via a Tutor or in any other manner whatsoever.
- The Legal Guardian/Account Holder hereby consents and authorises the Company as well as the Company’s nominee or agent to carry out any necessary credit checks or searches at any credit bureau or similar tracing facility and to verify the Legal Guardian/Account Holder’s personal and account details, with the purpose of establishing the Legal Guardian/Account Holder’s creditworthiness and contact information. The Company retains the right to disclose relevant financial or accounting information pertaining to the Legal Guardian/Account Holder to the Tutor or to any Company agent or cessionary.
- In this Agreement, reference to one gender shall include the other gender, reference to a legal person shall include natural persons and trusts and vice versa, and reference to the singular shall include the plural and vice versa.
The following Terms and Conditions apply only to Applications wherein the Impaq Online School Supplementary Offering is elected.
The Impaq Online School Terms and Conditions
The Impaq Online School Supplementary Offering is a supplementary product provided by the Company in addition to the Impaq Products and Services and includes access to facilitated online classes and supplementary learning material.
In addition to the Company Terms and Conditions, which shall also apply to the Supplementary Offering, the following Terms and Conditions shall apply to Learners, Legal Guardians and/or Account Holders who elect to utilise the Impaq Online School Supplementary Offering.
- Before applying for the use of the Supplementary Offering, it is the sole responsibility of the Legal Guardian/Account Holder to do the necessary research to satisfy themselves as to the relevance and suitability of the Supplementary Offering to the requirements set out by any legislative body including but not limited to the Department of Basic Education.
- By agreeing to these Terms and Conditions, the Legal Guardian/Account Holder consents to be bound by all associated terms and conditions related to the use of the Company’s Products, Services and Supplementary Offerings, which shall include any terms and conditions related to the use of the Company Platforms, software, hardware, learning material, facilities, and the minimum specifications for the use of the Supplementary Offering.
- By agreeing to these Terms and Conditions, the Learner agrees to abide by the Code of Conduct and any other rule, policy and/or process communicated by the Company from time to time.
- The Account Holder/Legal Guardian hereby agrees that under no circumstance will an independent tutor be allowed to invigilate or assess any Learner making use of the Supplementary Offering.
- The Company reserves the right to suspend, withdraw and/or refuse access of a Learner to the Supplementary Offering for any reason whatsoever, including but not limited to non-payment and/or any misconduct.
- The election of the Supplementary Offering may be provided at an additional cost. The Account Holder/Legal Guardian shall be liable for the payment of all fees associated with the Supplementary Offering.
- The Company reserves the right to suspend or cancel the Supplementary Offering if there is insufficient demand, and/or for any other reason as determined by the Company in its sole and absolute discretion and shall provide the Legal Guardian/Account Holder with notice thereof.
- The Legal Guardian/Account Holder acknowledges that the Supplementary Offering may become inaccessible by reason of one or more of the following: I. Equipment malfunction or faults;
II. Downtime and/or periodic maintenance;
III. The Company ceases to make available the Supplementary Offering.
IV. Force majeure including but not limited to war, network interruption or any other cause whatsoever.
- The Company shall not, under any circumstances, be liable for any costs, claims, or damages that may be sustained or suffered as a result of any interruption and/or inaccessibility of the Supplementary Offering. Should the inaccessibility persist for a period of more than 20 (twenty) days, the Company may, within its sole and absolute discretion, terminate the Supplementary Offering without penalty and/or claim for damages.
- The Company, its directors, officers, employees, agents, consultants, and affiliated companies shall not, under any circumstances, be liable for any loss or damage that may be sustained or suffered as a result of the Learner utilising the Supplementary Offering and/or the termination of the Supplementary Offering for any reason.
- The Legal Guardian/Account Holder acknowledges that the Company does not in any way guarantee the suitability of the Supplementary Offering and/or that such Supplementary Offering will improve the Learner’s performance or will enable the Learner to obtain admission to any other educational institution unless otherwise communicated.
- The Legal Guardian/Account Holder acknowledges and agrees that the disclaimers and liabilities contained herein are a reasonable allocation of risk between the Legal Guardian/Account Holder and the Company and that these limitations are an essential basis of the Company’s ability to make the Supplementary Offering available to the Legal Guardian/Account Holder.