Terms and Conditions
1.1. Some words and phrases used in these Terms and Conditions have special meanings. These meanings are set out below:
Information obtained by you and supplied to us so that we can perform the Services
The fees you pay for the Services. These are set out on the Website.
“Company Group Members”
Your subsidiaries, holding company and/or the other subsidiaries of your holding company
The information we provide to you as part of the Services
Any act of government or state civil commotion, epidemic, fire, flood, industrial action, or organised protests by third parties, natural disaster, war or any event beyond the reasonable control of the party claiming the force majeure event.
The reports and the information, including Data and any information that does not relate directly to the Services, that we provide to you
“Opt Out Database”
“Don't Contact Me" list held by the registry recognised or established from time to time by the Commission appointed in terms of Part B section 11(3) of the Consumer Protection Act 68 of 2008
The business information and related services we provide to you through the Website
Means Experian South Africa (Pty) Limited (registered number 2006/010440/07) our registered office is at Experian House, 35 Ballyclare Office Park, Ballyoaks Office Park, Bryanston, Johannesburg 2021
The website located at businesscheck.experian.co.za
Means the person, firm or company to whom we provide the Services.
1.2. The headings used in these Terms and Conditions are for convenience only and do not affect the construction of these Terms and Conditions.
2. PERIOD OF AGREEMENT
2.1. Your entitlement to receive the Services starts when we provide you with access to the full facilities of the Website and continues until terminated in accordance with these Terms and Conditions.
3. THE SERVICES
3.1. We will provide the Services in accordance with these Terms and Conditions.
3.2. Your use of the Services is subject to these Terms and Conditions.
3.3. We will tell you in writing if we amend or vary these Terms and Conditions. Such amended or varied Terms and Conditions shall apply to the provision of Services after the date on which you receive our written notice.
4. PAYMENT OF CHARGES
4.1. Each time you use the Services you will pay the Charges in advance by credit card.
5. COPYRIGHT AND CONFIDENTIALITY
5.1. All of the intellectual property rights (including copyright and database right) in the Information belong to us, or our licensors. You will not acquire any proprietary rights to the Information and may only make such copies of the Information as you reasonably require for the purposes set out below.
5.2. The rights granted to you to use the Information are personal to you and you may only use the Information for the internal purposes of your business and (unless required by law) you will:
- keep the Information strictly confidential.
- not publish the Information.
- not divulge or disclose the Information to anyone else.
- only permit access to the Information to your officers and/or employees who need to know or use them. You will ensure that your officers and employees comply with these confidentiality provisions.
- not copy, distribute or commercially exploit the Information unless expressly permitted by these Terms and Conditions.
- not use the Information for or on behalf of anyone else
- (where the Information is intended to be used for the purposes of marketing) ensure that the person you intend to contact has, where consent is prescribed by law, given their consent, in the manner prescribed, (if any) that the you may use their personal information for the purpose of marketing to them and that those persons had not added their names to any Opt-Out Database, or otherwise notified the Client that they do not wish to be contacted for marketing purposes.
5.3. You undertake not to use, or permit others to use, the Information to provide credit reference and/or moveable asset enquiry services to anyone else. This restriction does not prevent you from sharing the Information with your Company Group Members. However, you must ensure that the provisions under this Section 5 also bind your Company Group Members.
6. APPLICATION INFORMATION
6.1. You grant to us a royalty-free, non-transferrable, perpetual licence to use the Application Information. We can use the Application Information to enhance the databases we use to provide the Services and any other databases, including those we use to provide similar services and other risk and fraud prevention services to others.
7.1. You will comply with any rules and guidelines that we reasonably prescribe in relation to the manner in which we provide the Services. We will adopt such measures necessary to ensure the security of the Information.
7.2. We refer to account numbers, identification codes and passwords used to access the Services as "Client ID".
7.3. You acknowledge and agree that control of and security for your Client ID is your sole responsibility and that we have no liability at all for any losses (whether direct, indirect or consequential) arising from any use of your Client ID by any persons, whether authorised by you or not (this includes unauthorised access to your computers and/or network or any information not deleted when these systems are updated or replaced). We can issue you with new Client ID at any time. Any new Client ID will take effect from when we notify you of the new Client ID.
7.4. You also agree that you will:
- maintain appropriate technical and organisational security measures and procedures to prevent the accidental or unauthorised disclosure of your Client ID or its use by unauthorised persons
- inform us as soon as you become aware of any unauthorised use and/or disclosure of your Client ID, or if any equipment you use to access the Services is stolen
- be liable for any and all Charges incurred in connection with the Client ID whether or not you authorise such Charges.
7.5. We may invalidate or suspend use of your Client ID if:
- you break any of your obligations under these Terms and Conditions
- we are notified of, or become aware of, any unauthorised or improper use of your Client ID (either by you or someone else) or of the fact that any of the equipment you use to access the Services has been stolen.
8. PERFORMANCE AND LIABILITY
8.1. You agree and acknowledge that you will not use the Information as the sole basis for any of your business decisions.
8.2. You acknowledge that the Information is based on information provided to us by others and that we cannot control the accuracy of this information, which may also contain expressions of advice or opinion.
8.3. We use all reasonable skill and care to provide the Services. However, you agree that it is reasonable for us to limit our liability. In particular we:
- do not warrant the accuracy of the Information or the validity of any advice given or opinion expressed
- are not liable for any loss of any kind which you suffer as a result of a claim by a subject of the Information, advice or opinion.
8.4. We are not liable to you for any of the following as a result of our negligence, breach of contract, other tort or otherwise:
- indirect or consequential loss
- loss of profit, loss of sales or increase in (or failure to reduce) bad debts
- loss of business
8.5. Our total liability to you in any year (starting on the date on which you first use the Services or subsequent anniversary of that date) for all claims for negligence, breach of contract, tort or otherwise is limited. In the first year our liability does not exceed the amount payable by you for the Services provided during that year. In subsequent years our liability does not exceed the amount payable by you for the Services provided in the previous year.
8.6. We do not give any representations, warranties, conditions, undertakings, or terms (either express or implied):
- as to the fitness for a particular purpose of the Services and/or the Information
- that the Services and/or Information will meet your requirements
- that provision of the Services will be uninterrupted, timely, secure or error free.
8.7. We exclude all such representations, warranties, conditions, undertakings and terms to the fullest extent permitted by statute.
8.8. Nothing in these Terms and Conditions excludes our liability for death or personal injury arising out of our negligence.
8.9. You will protect us and keep us fully protected against any claims or actions made or brought against us as a result of:
- you rendering the Information inaccurate or incomplete (whether by an act or omission)
- your use of the Services.
This protection shall include all losses, damages, costs and other expenses (including any payments we make to settle any such claims or actions on the advice of our lawyers) that we incur and you promise to pay us or reimburse us if there is any such loss, damage, cost or other expense. This protection will not apply where we are in default.
9. GENERAL CONFIDENTIALITY
9.1. We both will ensure that our respective officers, employees and agents shall, maintain in strictest confidence and not divulge or communicate to anyone else any Confidential Information relating to the other. This shall not affect any of the other part of these Terms and Conditions.
9.2. "Confidential Information" means (as the context may require):
- any information concerning either of our trade secrets, customer, business dealings, transactions or affairs which may come to the notice of the other party
- any information and/or knowledge relating to the methods or techniques we use to provide the Services and/or Information. These include any documents or other materials comprising any part of such information and/or know how we make available to each other.
9.3. These provisions do not apply to any Confidential Information which:
- either you or we are required to divulge by a Court, tribunal or governmental authority with competent jurisdiction.
- is already public knowledge, other than where either you or we break these confidentiality provisions.
- was already known to the recipient before the date of disclosure (as evidenced by written records).
- was independently obtained from someone else, without that person breaking any confidentiality obligations they have to either you or we.
9.4. You grant us a perpetual, royalty-free, transferable licence to use data relating to your use of the Services and your payment record within our other products and services.
10. CO-OPERATION AND ASSISTANCE
10.1. You shall at your own cost co-operate with us to such extent and provide to us such information and assistance as we reasonably require to perform our obligations in relation to the Services.
11.1. We shall be entitled to suspend or terminate your entitlement to receive the Services at any time. Where we terminate your entitlement to receive a Service for which you have paid in advance, we will refund you for any unused Services, unless we have terminated the Services because you have breached these Terms and Conditions or because the Services are being used for the purposes of fraud.
11.2. We will invalidate your Client ID as soon as termination occurs.
12. STATUTORY COMPLIANCE
12.1. Both of us undertake to each other that in respect of the provision and use of the Services (as appropriate) we will both comply fully with all relevant statutory enactments. These include without limitation:
- the Protection of Personal Information Act (when enacted);
- the Consumer Protection Act No. 68 of 2008
- the National Credit Act 34 of 2005
- all re-enactments and amendments to the acts above
- any regulations or requirements made by any governmental authority or equivalent body of competent jurisdiction.
12.2. You further undertake to us that:
- you hold all necessary registrations and licences prior to your use of the Services
- you will obtain all necessary consent from individuals in order to gain access to and make use of personal data. This includes consent from individuals acting in the capacity of a director, a partner or sole-trader of a business against which we are carrying out searches on your behalf
- you will use wording proposed by us (if any) when obtaining all necessary consents.If you fail to obtain any necessary consent we are not obliged to provide the relevant part of the Services or in our discretion may provide an alternative service that does not make use of personal data.
12.3. You warrant that you have in place and will maintain:
- appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of the Data
- adequate security programmes and procedures to ensure that unauthorised persons do not have access to equipment used to process the Data or on which Data is stored.
13.1. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.
13.2. Any notices to be sent by one party to the other in connection with this Agreement (except for the service of Court proceedings) shall be in writing and shall be delivered personally or by courier or sent by registered post, (or equivalent service offered by the postal service from time to time) to the addresses of each party as set out on the front page of the Schedule or as otherwise notified in accordance with the provisions of this Clause.
13.3. Notices shall be deemed to have been duly given: if delivered personally or by courier, upon delivery and if sent by registered post, ten days after the date on the postage stamp.
13.4. Experian shall be entitled to sub-contract any or all of its obligations under this Agreement to a sub-contractor but by doing so Experian shall be responsible for the acts and omissions of the sub-contractor to the same extent as if it had carried out the obligations itself pursuant to this Agreement.
13.5. If any part of this Agreement is found to be invalid or unenforceable by any Court, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
13.6. If either party fails to exercise a right or remedy that it has or which arises in relation to this Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
13.7. A waiver of any breach or provision of this Agreement shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach or provision. Any waiver of a breach of any term of this Agreement shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of this Agreement.
13.8. Variations of this Agreement shall not be effective unless recorded in writing signed by the parties; variations in electronic form shall not count as variations recorded in writing.
13.9. This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties relating to the same subject matter. Neither of the parties shall be bound by, or liable to the other party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by it or by any agent or person on its behalf which is not expressly contained in this Agreement.
13.10. The parties hereby agree that nothing in this Agreement shall be construed as creating a right which is enforceable by any person who is not a party to this Agreement or a permitted assignee of such a party.
13.11. Each party shall, at the reasonable request and cost of the other party, do whatever is reasonably required to give the other party the full benefit of all the provisions of this Agreement.
13.12. Nothing in this Agreement is intended to, or shall, operate to:
13.12.1. create a partnership or joint venture of any kind between the Client and Experian;
13.12.2. authorise either party to act as agent for the other party;
13.12.3. authorise either party to act in the name or on behalf of, or otherwise to bind, the other party in any way.
13.13. In this Agreement:
13.13.1. any reference to a statutory provision includes a reference to any amendment, modification or re-enactment of it from time to time;
13.13.2. references to clauses and schedules are to the Clauses of and the Schedule to this Agreement;
13.13.3. the singular includes the plural and vice versa;
13.13.4. where any matter is to be agreed, such agreement must be recorded in writing.
13.15. These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the Republic of South Africa. We both agree that the Courts of the Republic of South Africa shall have exclusive jurisdiction to settle any dispute that may arise out of, under, or in connection with these Terms and Conditions.
13.16. The parties hereby agree that nothing in this Agreement shall be construed as creating a right which is enforceable by any person who is not a party to this Agreement or a permitted assignee of such a party.