By accessing, downloading or using the mobile application and/or website (“Cognition
”) of Cognition Online Proprietary Limited (“the Company
”) located at www.cognition.online
or downloaded on any application store, you agree that you have read, understood and agreed to the terms and conditions contained herein (“the Terms
”).All rights in and to the content of Cognition remain at all times expressly reserved by the Company. [In compliance with section 49 of the Consumer Protection Act 68 of 2008 (“CPA”), please pay specific attention to the BOLD paragraphs of the Cognition Terms. These paragraphs limit the risk or liability of Cognition, constitutes an assumption of risk or liability by you, impose an obligation by you to indemnify Cognition or is an acknowledgement of any fact by you.] Please read these terms carefully before accessing or using Cognition.
The terms “user”, “you”and “your” are used interchangeably in these Terms and refer to all persons accessing Cognition for any reason whatsoever.
1. INTRODUCTION AND THE SERVICES
1. Cognition provides an online platform which connects users requiring tutoring on a variety of classes (“Students”)with other users who are tutors (“Tutors”), in exchange for a payment of a fee (“the Fee”).
2. A Student chooses her/his price to be tutored by a Tutor. The price and description of the tutoring is then posted onCognition for other users to see.
3. Once a post is created on Cognition,Tutors choose and accept or adjust the price on the Student’s post. The Student is able to decide which tutor to accept based on the Tutor’s rating, price and ability.
4. Please refer to clause 9to see how Cognition uses and protects your personal information.
5. Cognition and these Terms are subject to change without notice. These Terms are updated or amended from time to time and will be effective upon the Company uploading the amended Terms toCognition. Your continued access or use of Cognition constitutes your acceptance to be bound by the Terms, as amended. It is your responsibility to read these Terms periodically to ensure you are aware of any changes.
6. Unauthorised use of Cognition may give rise to a claim for damages and/or be a criminal offence.
2. RELATIONSHIP BETWEEN THE PARTIES
1. Subject to adherence to the Terms, theCompany grants to users a personal, non-exclusive, non-assignable and non-transferable license to use and display all content and information contained in Cognition on any machine which the user is the primary user.However, nothing contained on Cognition should be construed as granting any licence or right to use any intellectual property without the prior written permission of the Company.
2. Cognition acts solely as an intermediary between users and the Company does not have an employment relationship with any Tutor or user. You connect with another user entirely at your own risk.
3. When a Student books a Tutor usingCognition, the users enter into a direct and binding agreement with each other.Cognition is not responsible for the quality, duration or content of the tutoring provided by the Tutor.
3. REGISTRATION PROCESS
1. In order to use Cognition, you must complete the registration process detailed on the mobile application. Each user shall have only 1 (one) account and agrees to provide accurate, current and complete information during the registration process and to update such information as and when it changes.
2. To protect your privacy and security,Cognition takes reasonable steps to verify your identity by requiring a password and user ID before granting access to your data. To view and change the personal information that you have provided, you can use the “Edit”function on the “Profile” tab on Cognition. To resubmit documents you have provided to Cognition, please email email@example.com from your registered email address.
3. By entering your personal information on Cognition, the Company is entitled to assume that the person using Cognition is you. You are responsible for your account and you should not share your log-in details or password with anyone.
4. The Company requires you to submit your full name, physical address, e-mail address, identity number, phone number, driver’s license, vehicle registration number, matric certificate, proof of registration or qualification at a tertiary education institute, profile photograph, academic transcript (if applicable) and banking details upon registration for Cognition.
5. To be accepted as a Tutor on Cognition, a user must have achieved at least 75% (seventy five percent) in matric for the subject the user wishes to tutor. In the event that a user did not take the subject at matric, the user must have obtained a minimum of 60% (sixty percent)aggregate at a tertiary level in the subject the user wishes to tutor. TheCompany reserves the right at all times to approve or reject a Tutor application to ensure quality tutoring services.
6. Cognition will require the Tutor’s banking details to effect payment for the Tutor’s services. Cognition uses PayU Payment Solutions Proprietary Limited with registration number 2009/017393/07 as a gateway to keep your banking details secure.
7. By submitting your personal information to Cognition, you consent to the Company using this information to facilitate a connection between you and another user.
4. PAYMENT METHOD AND FEES
1. In exchange for providing the online platform to connect Students and Tutors, the Company is entitled to a Fee on each payment by a Student to a Tutor. The Fee is deducted from the agreed upon price for tutoring services.
2. The Fee is R50.00 (fifty Rand) per hour of tutoring by a Tutor, calculated pro rata.
3. The payment by the Student to Cognition for the Tutor services and Fee becomes immediately due and payable upon selecting a Tutor on Cognition. The Student will be redirected to PayU and the tutoring service will be confirmed upon payment.
4. Cognition will collect any payments into the Company’s merchant bank account, on behalf of the Tutor. Cognition will then deduct the Fee and pay to the Tutor the remaining amount, at month end, into the bank account nominated by the Tutor in the registration process.
5. With the exception of the Fee,Cognition does not have any legal right to monies paid to a Tutor by a Student.
6. Any monies paid to the Tutor is final and non-refundable, unless otherwise determined by the Company.
7. All amounts shall be exclusive of ValueAdded Tax (“VAT”), as defined in the Value Added Tax Act No 89of 1991.
5. USER RESPONSIBILITIES AND WARRANTIES
1. By using Cognition, you warrant that:
1.1 you have read and agreed to these Terms and will use Cognition in accordance with them;
1.2 you have not made any misrepresentations and the information provided in the registration process is true, accurate and complete;
1.3 you are at least 18 (eighteen) years old and/or you have permission from your guardian to use Cognition, if such permission is required;
1.4 you will not post, upload, replicate or transmit any abusive content on the online platforms that is or could reasonably be considered threatening, harassing, defamatory, abusive, racist, sexist, discriminatory, in breach of confidence, in breach of privacy or restrict any user in any way from properly using Cognition;
1.5 you will not send any unsolicited electronic messages or use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of Cognition including but not limited to uploading or making available files containing corrupt data or viruses via whatever means or deface, alter or interfere with the front end ‘look and feel’ of Cognition or the underlying software code;
1.6 you will not infringe any third party or Cognition’s intellectual property or other rights or transmit content that the user does not own or does not have the right to publish or distribute;
1.7 you will not use the Cognition platform for any commercial purpose other than as expressly provided for by the Company;
1.8 you will not use Cognition to breach any applicable law or regulation or perform or encourage any illegal activity including (without limitation) promoting or facilitating access to, use of or sale of illegal substances or devices; and/or
1.9 facilitate or assist any third party todo any of the above.
2. Cognition is only available on compatible devices connected to the internet. It is your responsibility to obtain these devices and any data network access necessary to utilise Cognition.The network’s data, messaging rates and fees may apply if you use Cognition and you shall be responsible for such rates and fees.
3. Without prejudice to any of theCompany’s other rights (whether at law or otherwise), the Company reserves the right to deny you access to Cognition where the Company believes (in its reasonable discretion) that you are in breach of any of these Terms.
4. The Company does not guarantee thatCognition, or any portion thereof, will function on any particular hardware or device.
6. STUDENT MESSAGING SERVICES
Please consult our terms and conditions provided to you when signing up as a tutor or student
1. Cognition allows Students to post a short message when requesting tutoring services from a Tutor to explain any unique problem or focus area.
2. The views expressed via the message service are not necessarily condoned, approved, endorsed or supported by theCompany.
3. The Company has deemed as unacceptable, content that:
3.1 is sexually explicit or suggestive or derogatory to any ethnic, racial, gender, or religious group;
3.2. promotes any illegal activity; or
3.3 may harass, defame, misrepresent or contain disparaging remarks about other people or users.
4. The Company reserves the right to monitor or moderate any messages it deems to violate these Terms at its sole discretion, at any time, and without notice:
4.1 remove a message that is deemed inappropriate or unsuitable for the Cognition platforms without notification to the offending user;
4.2 give an offending user a warning; and
4.3. stop or suspend a user’s use of any or all services.
5. Users acknowledge that any content provided on Cognition, including via the messaging system, enters an open, public forum, and is not confidential.
6. Users understand that there are risks involved in sharing personal information. By disclosing personal information such as the user’s name and email address, users acknowledge and understand that this information may be collected and used by a third party to communicate with you.
7. INTELLECTUAL PROPERTY PROTECTION
1. All trademarks, copyright, database rights and other intellectual property rights in the content and materials on Cognition (as well as the organisation and layout of Cognition) together with the underlying software code (“the intellectual property”) are owned (orco-owned, as the case may be) by the Company, its members, associates and/or partners, whether directly or indirectly, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to you in these Terms, all other rights to all intellectual property on Cognition are expressly reserved. You may not copy, download, print, modify, alter, publish, broadcast, distribute, sell or transfer any intellectual property, editorial content, graphics or other material onCognition or the underlying software code whether in whole or in part, without the written consent of the Company first being granted, which consent may be refused at the discretion of the Company. No modification of any intellectual property or editorial content or graphics is permitted. Any enquiries in this regard must be directed to the Company at firstname.lastname@example.org.
2. The Company reserves the right to make improvements or changes to the intellectual property, information, artwork, graphics and other materials on Cognition, or to suspend or terminate Cognition, at any time without notice, provided that any transactions already concluded through Cognition will not be effected by such suspension or termination (as the case may be).
8. RECEIPT AND TRANSMISSION OF DATAMESSAGES
1. Data messages, including e-mail messages, sent by you to the Company will be considered to be received only when acknowledged or responded to.
2. Data messages sent by the Company to you will be regarded as received when the complete data message enters an information system designated or used for that purpose by the recipient and is capable of being retrieved and processed by the recipient.
3. The Company reserves the right not to respond to any e-mail or other data message which contains obscene, threatening, defamatory or otherwise illegal, unlawful or inappropriate content, and to take appropriate action against the sender of such e-mail or data message where necessary.
4. Messages sent over the internet cannot be guaranteed to be completely secure as they can be intercepted, lost or corrupted. The Company is therefore not responsible for the accuracy of any message sent by email over the internet, whether from the Company to a user or from a user to the Company.
1. The Company is committed to business practices in compliance with the Protection of Personal Information Act 4 of2013 (“POPI”). By using or accessing Cognition, you agree that the Company may process your personal information provided to Cognition in terms of these Terms and otherwise in compliance with POPI.
2. Your personal information is not required in order to access parts of Cognition. However, personal information is required for the purpose of registering an account and carrying out transactions via Cognition.
3. The Company collects, collates, processes, and uses the following types of information about you when you use or access Cognition:
3.1 information provided by the user. TheCompany collects personal information (that is information about the user that is personally identifiable like the user’s name, address, age, gender, e-mail address, phone number(s) and other unique information such as user IDs and passwords, billing and transaction information, product and service preferences and contact preferences that are not otherwise publicly available). The Company verifies the user’s name and email address when the user completes the registration process; and
3.2 information that is collected automatically. The Company receives and stores information which is transmitted automatically from the user’s computer when the user browses the internet. This information includes information from cookies (which are described in clause 9.5 below), the user’s Internet Protocol (“IP”) address, browser type, web beacons, embedded web links, and other commonly used information-gathering tools. These tools collect certain standard information that your browser sends to Cognition such as your browser type and language, access times, and the address from which you arrived at Cognition. Your IP address is the unique address of your computer or device which is automatically provided to other computers when your web browser or email application requests a web page or email from those computers on the internet.
4. The Company keeps track of the number of users of Cognition and duration of use to help maintain accurate, timely, complete and relevant information for the Company’s business purposes.
6. The Company may link information stored in cookies such as your age, gender and country with your personally identifiable information and it may use such information to gather statistics about the number of people who visit Cognition and to customise Cognition’s content, customer support, layout and services for delivery to the user.
7. Use and Disclosure of Information
7.1 The Company will use your personal information to enable you to access and use Cognition, such as communicating with other users through the messaging service and booking process.
7.2 The Company may display the personal information contained in your profile to users who have connected with you viaCognition such as booking a Tutor service.
7.3 The Company may use your personal information to operate, protect, improve and optimise Cognition, better the user experience, perform analytics, conduct research and provide customer service.
7.4 The Company will use your email address to contact you from time to time and may also use it for security reasons to confirm your identity.
7.5. When you, as a Student have usedCognition, you may be prompted to rate and review the Tutor. If you choose to provide a review, your review may be public on Cognition.
7.6 The Company agrees not to use the users’ provided electronic mail address in any manner that users do not consent to nor alert any other parties of the users’ address without the user’s consent.
7.7 You have the right to opt out of receiving electronic mail communication by following the directions posted on every electronic mail communication.
7.8 The Company may review, scan or analyse your communications with other users exchanged on Cognition to ensure compliance with the Terms.
7.9 The Company may use the information collected automatically, such as the user’s IP address and information stored via cookies, to gather statistics about the number of people who visitCognition and to customise Cognition’s content, layout and services.
7.10 TheCompany will disclose the user’s personally identifiable information if it reasonably believes that it is required to do so by law, regulation or other government authority or to protect the rights and property of the Company, its affiliates or the public. The Company may also co-operate with law enforcement in any official investigation and may disclose the user’s personally identifiable information to the relevant agency or authority in doing so.
7.11 TheCompany reserves the right to transfer your personal information in the event of a transfer of ownership, such as acquisition by, or merger with, another entity. If any acquiring entity should plan to materially change the CognitionTerms, the Company will notify you beforehand.
7.12. Circumstances may arise where, whether for strategic or other business reasons, the Company decides to sell, buy, merge or otherwise reorganise its business. Such a transaction may involve the disclosure of personal information to prospective or actual purchasers, or the receipt of it from sellers. It is the Company’s practice to seek reasonable protection for information in these types of transactions.
8. Access to and accuracy of your information
8.1 The Company strives to keep the user’s personal information accurately recorded. The Company provides a user with the reasonable ability to review and correct it or ask for anonymization, blockage, or deletion, as applicable.
8.2 The user is entitled to request access to any relevant personal data held by the Company as laid out in the Promotion of Access to Information Act 2 of 2000 and where such access is necessary for you to exercise and/or protect any of the user’s rights.
8.3 In accordance with the Protection of Personal Information Act 4 of 2013, users may request the Company to review the personal information which it holds and may request for the Company to delete such information.
1. Cognition, including any intellectual property appearing therein, is provided “as is” and “as available”. TheCompany makes no representations or warranties, express or implied, including but not limited to warranties as to the accuracy, correctness or suitability of either Cognition or the information contained in it.
2. The user is able to arrange physical meetings with other persons at various places around the Republic of SouthAfrica by using Cognition. The Company makes no representation or warranty in respect of any meeting. The Company cannot and does not control or make any representations in respect of the actions, background, or the identity of persons who may be present at such meetings. As such and to the maximumextent permitted in law, the Company, its members, employees, suppliers, partners, affiliates and agents shall not be liable whatsoever for any director indirect loss, damage, injury or death resulting from any event or action or omission by the user or any other person, arising from or in any way connected with such meetings.
3. All information or opinions of users in relation to any of the services are those of the authors and not the Company.While the Company makes every reasonable effort to present such information accurately and reliably on Cognition, the Company does not endorse, approve or certify such information, does not guarantee the accuracy or completeness of such information, nor does it warrant in any way the suitability or competency of the Tutors on Cognition.
4. The Company, its members, employees and partners, accept no liability whatsoever for any loss, whether direct or indirect, consequential or arising from information made available on (or by means of) Cognition and/or transactions or actions resulting therefrom.
5. The Company, its members, employees, partners and affiliates, accept no liability whatsoever for any costs, expenses, fines or damages, including but not limited to direct or indirect loss or damages, including any economic loss, consequential loss, loss of profits or any form of punitive damages, resulting from the access to, or use of, Cognition in any manner.
6. The Company takes reasonable security measures to ensure the safety and integrity of Cognition and to exclude viruses, unlawful monitoring and/or access on Cognition. However, the Company does not warrant or represent that your access to Cognition will be uninterrupted or error free or that any information, data, content, software or other material accessible through Cognition will be free of bugs, viruses, worms, trojan horses or other harmful components. The user’s access to and use of Cognition remains solely at the user’s own risk.
1. The user indemnifies and holds harmless the Company, members, employees, and partners from any demand, action or application or other proceedings, including for attorneys’ fees and related costs such as tracing fees, made by any third party and arising out of or in connection with the user’s use of Cognition or services offered or ordered through Cognition in any way.
2. The user agrees to indemnify, defend and hold the Company harmless from any direct or indirect liability, loss, claim and expense (including reasonable legal fees) related to the user’s breach of these Terms. This clause will survive termination of this agreement.
12. INFORMATION IN TERMS OF SECTION 43 OFTHE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002
1. Site owner: Cognition OnlineProprietary Limited
2. Legal Status: Cognition Online is a private company, duly incorporated in accordance with the laws of the Republic of South Africa
3. RegistrationNumber: 2016/130643/074. Directors: Kyle Roger Dodds, Daniel Jacobus Viljoen
5. Description of main business: online platform to connect Students with Tutors
6. E-mail address: email@example.com
7. Website address: www.cognition.online
8. Physical address: Kings Highway 433c,Lynnwood, Pretoria, 0081
9. Postal address: same as above10. Registered address: same as above
13. DISPUTE RESOLUTION
1. Should any dispute, disagreement or claim arise between the parties concerning the use of Cognition, the parties shall endeavour to resolve the dispute amicably, by negotiation, and with the best interests of both parties in mind.2. Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to in their negotiation, the parties will approach an independent industry expert who shall mediate the discussion on their behalf.3. The parties both agree that in no circumstance will either party publicise the dispute on any social media or other public platform. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.
1. The Company reserves the right to terminate and cancel your account if you breach any of the Terms, or for any other reason provided that the Company gives reasonable notice to you with written reasons for the cancellation.
2. If you wish to terminate the agreement with the Company, you may do so by deregistering your account with Cognition and discontinuing the use of the website and mobile application.
3. In the event of cancellation, theCompany will pay any outstanding monies to the Tutor, as the holder of aCognition account.
15. NOTICES AND DOMICILIUM
Each of the parties chooses their domicilium citandi et executandi for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from these Terms as being:
1. in the case of the Company, at Email Address firstname.lastname@example.org Kings Highway 433c, Lynnwood, Pretoria, 00811.
1.1 in the case of the user, at the e-mail and physical address provided by the user to the Company in the registration process.
2. Any notices to any party will be sent via prepaid registered post, delivered by hand or sent by e-mail. Unless the contrary is proved, any notice:
2.1. sent by prepaid registered post will be deemed to have been received on the 5th (fifth) Business Day after posting;
2.2 any notice delivered by hand on aBusiness Day will be deemed to have been received on the date of delivery; provided that if such day is not a Business Day, then such notice shall be deemed to have been received on the 1st (first) Business Day following the date of delivery;
2.3. transmitted by email will be deemed to have been received on the same day of transmission; provided that if such day is not a Business Day, then such notice shall be deemed to have been received on the 1st(first) Business Day following the day of transmission.
3. For the purposes of this clause 15, the term “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
4. Each of the parties will be entitled from time to time, by written notice to the other to vary its domicilium to any other address in the Republic of South Africa which is not a post office box or poste restante, provided that the change will become effective only 14 (fourteen) days after service of the notice in question.
5. Notwithstanding the above, any notice given in writing in English, and actually received by the party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.
1. This document contains the entire agreement between the parties in relation to the subject matter hereof. Save as contemplated in clause 1.4 above, no alteration, cancellation, variation of, or addition hereto will be of any force or effect unless reduced to writing and signed by all the parties to these Terms or their duly authorised representatives.
2. No indulgence, leniency or extension of time granted by the Company shall constitute a waiver of any of the Company’s rights under these Terms and, accordingly, the Company shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against the user which may have arisen in the past or which might arise in the future.
3. Words importing the singular will include the plural and vice versa. Words importing one gender will include the other genders, and words importing persons will include partnerships, trusts and bodies corporate, and vice versa.
4. The headings to the paragraphs to theTerms are inserted for reference purposes only and will not affect the interpretation of any of the provisions to which they relate.
5. The user’s access and/or use ofCognition, any downloaded material from it and the operation of these Terms(including any transaction concluded pursuant thereto) shall be governed by and construed in accordance with the laws of the Republic of South Africa.
6. Should you have any complaints or queries, kindly address an e-mail to email@example.com advising the Company of same.
7. In the event of the user failing to pay any amount timeously or breaching these Terms, the user shall be liable for all legal costs (on the scale as between attorney and client) (including collection commission) which may be incurred by the Company in relation to the payment failure or breach.
8. Each sentence, paragraph, term, clause and provision of these Terms and any portion thereof shall be considered severable and if, for any reason, any such sentence, paragraph, term, clause or provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation (including, without limitation, the CPA and any regulations thereto) or in terms of a final, binding judgment issued by any court, it shall to that extent be deemed not to form part hereof and shall not impair the operation of, or have any effect upon such other sentence, paragraph, term, clause or provision hereof as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto.
9. No term or condition of these Terms is intended to breach any peremptory provisions of the CPA and any regulations thereto (“Prohibited Provision“). Any breach of any suchProhibited Provision shall be governed by the provisions of clause 16.8 mutatismutandis.