1.1 Smart Nanny (also referred to as "we", "our" or "us") – Smart Nanny a private limited company incorporated and registered under the laws of Republic of South Africa with registered office 140 West St, Sandown, Sandton, 2196, Republic of South Africa.
1.2 Smart Nanny Services – services that Smart Nanny provides, including provision and maintenance of the Smart Nanny App, Smart Nanny Platform, In-app Payment, customer support, communication and other similar services.
1.3 Smart Nanny App – a smartphone application for parties to request and receive carer and nanny services
1.4 Smart Nanny Platform – technology connecting carers or nannies with Users.
1.5 Users – End Users of the Smart Nanny App or Platform who utilise third party Carer or Nanny services.
1.6 Carer or Nanny – Third party carers or nannies who make their services available to Users on the Smart Nanny App and Platform.
1.7 Agreement – this agreement between Carer or Nanny and Smart Nanny regarding the use of Smart Nanny Services which consists of:
1.7.1 these General Terms;
1.7.2 Special terms displayed in Smart Nanny App, e.g regarding price info or service descriptions;
1.7.3 the Carer or Nanny guidelines; and
1.7.4 other terms referred to in this Agreement as may be amended from time to time.
1.8 Service Fee– the fee a User is obliged to pay the Carer or Nanny for provision of the Services.
1.9 Smart Nanny Fee – the fee that Carer or Nanny is obliged to pay to Smart Nanny for using the Smart Nanny Platform.
1.10 In-app Payment – cards, carrier billing and other payment methods used by the User via the Smart Nanny App to pay for the Services.
1.11 Smart Nanny Carer or Nanny account – access to a website containing information and documents regarding usage of the Smart Nanny Services in course of provision of Services, including accounting documentation.
1.12 Services – Carer or Nanny service a Carer or Nanny is providing to User whose request for Carer or Nanny services has been accepted through the Smart Nanny App.
2 ENTRY INTO THE AGREEMENT
2.1 Prior to using the Smart Nanny Services, you must sign up by providing the requested information. You may sign up either as a legal or a natural person. By signing up electronically, you represent and warrant that:
2.1.1 pursuant to valid legal acts, you are entitled to enter into an agreement with us to use the Smart Nanny Platform for providing the services; you have carefully studied, fully understand and agree to be bound by these General Terms, including all obligations that arise as provided herein and from Agreement or update to this agreement;
2.1.2 all the information you have presented to us is accurate, correct and complete;
2.1.3 you will keep Smart Nanny Account accurate and profile information updated at all times;
2.1.4 you will not authorize other persons to use your Smart Nanny Account nor transfer or assign it to any other person;
2.1.5 you will not use the Smart Nanny Services for unauthorized or unlawful purposes and impair the proper operation of the Smart Nanny Services;
2.2 You are obliged to provide your bank requisites upon registration. In case you are a legal person, you must insert the bank account of the company. We are transferring In-app Payment fees to the bank account that you have provided. We are not liable for any incorrect money transactions in case you have provided wrong bank requisites.
2.3 By registering the account as a legal person (i.e. a company), you are considered to be a legal person. In such case, the indicated legal person is considered to be the provider of Services and a party to these General Terms, Agreement and any further agreements. Only the specific natural person indicated in the signup process may factually provide the Services. Such natural person may use the account of the career or nanny only if he/she has read and agrees to be bound by these General Terms and any further documentation that is part of the Agreement. The legal person in the payment details and the natural person factually providing the services under Smart Nanny account shall remain jointly and severally liable for any infringement of the general terms and agreement conducted by the Carer or Nanny.
3 RIGHT TO USE THE SMART NANNY APP AND SMART NANNY ACCOUNT
3.1 We hereby grant you a license to use the Smart Nanny App and the Smart Nanny Account. The license does not grant you the right to sublicense or transfer any rights to the third persons.
3.2 In course of using the Smart Nanny App and/or Smart Nanny Account you may not:
3.2.1 decompile, reverse engineer, or otherwise attempt to obtain the source code of the Smart Nanny App, the Smart Nanny Account or other software of Smart Nanny;
3.2.2 modify the Smart Nanny App or the Smart Nanny Account in any manner or form or to use modified versions of the Smart Nanny App or Smart Nanny Account;
3.2.3 transmit files that contain viruses, corrupted files, or any other programs that may damage or adversely affect the operations on Smart Nanny Platform;
3.2.4 attempt to gain unauthorized access to the Smart Nanny App, Smart Nanny Account or any other Smart Nanny Services.
3.3 The License granted herein revokes automatically and simultaneously with termination of the Agreement. After termination of the Agreement you must immediately stop using the Smart Nanny App and the Smart Nanny Account and we are entitled to block and delete the account without a prior notice.
3.4 Additionally, we may give you tags, labels, stickers or other signs that refer to Smart Nanny brand or otherwise indicate you are using the Smart Nanny Platform. We grant you a non-exclusive, non-sublicensable, non-transferable license to use such signs and only for the purpose of indicating you are providing Services via the Smart Nanny Platform. After termination of the Agreement you must immediately remove and discard any signs that refer to Smart Nanny brand.
3.5 All copyrights and trademarks, including source code, databases, logos and visual designs are owned by Smart Nanny and protected by copyright, trademark and/or trade secret laws and international treaty provisions. By using the Smart Nanny Platform or any other Smart Nanny Services you do not acquire any rights of ownership to any intellectual property.
4 PROVIDING THE SERVICES
4.1 You hereby guarantee to provide carer/nanny Services in accordance with the General Terms, Agreement as well as laws and regulations applicable in the state where you are providing Services. Please note that you are fully liable for any violation of any local laws and regulations as may arise from providing Services.
4.2 You must have all documentation, registrations and certifications that are required in the applicable jurisdiction for providing the Services. It is your obligation to maintain the validity of all aforementioned documentation. Smart Nanny reserves the right to require you to present evidence and submit for review all the necessary licenses, permits, approvals, authority, registrations and certifications.
4.3 You must provide the Services in a professional manner in accordance with the business ethics applicable to providing such services and endeavour to perform the User’s request in the best interest of the User.
4.4 You retain the sole right to determine when you are providing the Services. You shall accept, decline or ignore Services requests made by Users at your own choosing.
4.5 You are obliged to provide and maintain all equipment and means that are necessary to perform the Services at your own expense, including a transportation, smartphone, etc. You are also responsible for paying all costs you incur in the course of performing the Services including, but not limited to, fuel, mobile data plan costs, etc. Please bear in mind that using the Smart Nanny App may bring about consummation of large amount of data on your mobile data plan.
4.6 You are entitled to charge a Service Fee for each instance you have accepted a User on the Smart Nanny Platform and completed the Service as requested (i.e. Service Fee).
4.7 A User may be offered to use a Service option that allows the User to agree to a fixed Service Fee for a given instance of Service provided by you (i.e Upfront Service Fee). In such instances, Smart Nanny shall not reduce its charge to you.
4.8 Smart Nanny may adjust the Service Fee for a particular order completed, if we detect a violation or in case a technical error affecting the final Service Fee is identified. Smart Nanny may also reduce or cancel the Service Fee in cases we have reasonable cause to suspect fraud or a complaint by the User indicates a violation by you. Smart Nanny will only exercise its right to reduce or cancel the Service Fee in a reasonable and justified manner.
4.9 Users may pay the Service Fee for the Services either directly to you or via the In-app Payment as described in these General Terms. In case the User pays the Service Fee directly, it is your obligation to collect the Service Fee. If User justifiably refuses to pay the Service Fee on the account that your information stated in the Smart Nanny App is incorrect, then Smart Nanny will not reimburse you for such expenses.
4.10 After each successful provision of Services, Smart Nanny shall create and forward a receipt to the User.
4.11 Users may cancel a request for Services that a Carer or Nanny has accepted via the Smart Nanny App. The Carer or Nanny is entitled to the Service Fee for cancelled Services (Cancellation Fee) in the event that a User cancels accepted request for Services after certain time period determined by Smart Nanny App.
4.12 You hereby acknowledges that you are obliged to fully comply with all tax obligations that arise to you from the applicable laws in relation to providing the Services, including (i) paying income tax, social security tax or any other tax applicable; and (ii) fulfilling all employee and tax registration obligations for calculations in regard to accounting and transfers to applicable State authorities as required by the applicable law. In case the Tax authority will submit a valid application to us to provide information regarding the activities of you, we may make available to the Tax authority the information regarding the activities of you to the extent set forth in valid legal acts. Additionally, it is your obligation to adhere to all applicable tax regulations that may apply in connection with the provision of Services. You hereby agree to compensate Smart Nanny all state fees, claims, payments, fines or other tax obligations that Smart Nanny will incur in connection with the obligations arising from applicable tax regulations not having been met by you (including paying the income tax and social tax).
4.13 Smart Nanny has a right to issue an invoice on your behalf to the User in order to compensate you any Service Fees, contractual penalties or other fees that Smart Nanny mediates to you.
4.14 You are required to maintain personal and public liability insurance cover for the entire period your services are offered on the Smart Nanny App or Platform. Such insurance should cover the entire scope of the service you offer on the Smart Nanny App or Platform together with any potential ancillary events. The minimum insured value should be R5 000 000.00 (FIVE MILLION RANDS)
5 SMART NANNY FEES
5.1 In order to use the Smart Nanny Services, you are obliged to pay to a fee (i.e. the Smart Nanny Fee). The Smart Nanny Fee is paid based on the Service Fee of each Service order that you have completed. The amount of the Smart Nanny Fee is made available to you via e-mail, Smart Nanny App, Smart Nanny Account or other pertinent means. Please acknowledge that the Smart Nanny Fee may change from time to time.
5.2 You must pay the Smart Nanny Fee and any other fees due to us for the previous month at latest by the 15th date of the following month. Upon delay with payment of the Smart Nanny Fee, you shall be obliged to pay a penalty of late payment in the amount of 5% (five percent) of the unpaid amount per month. You are obliged to cover all costs incurred by us, which are related to debt collection activities.
6 IN-APP PAYMENTS
6.1 We may enable Users to pay for the Service via cards, carrier billing and other payment methods directly in the Smart Nanny App (i.e. In-app Payment). You hereby authorise us to act as your limited commercial agent solely for the purpose of collecting, on your behalf, the Service Fees or other fees paid by the User via In-app Payment. Any payment obligation made by the User via the In-app Payment shall be considered fulfilled as of the time that the payment has been made.
6.2 You may not refuse payment by the User via the In-app Payment, or influence the User against the use of the In-app Payment. In case you refuse to accept an In-app Payment without just cause, we shall be entitled to charge you a contractual penalty in the amount of R500 (FIVE HUNDRED RANDS) for every refusal and/or block your right to use the Smart Nanny Services in case of repetitive behaviour.
6.3 Smart Nanny reserves the right to distribute promo code to Users at our discretion on a per promotional basis. You are required to accept the use of promo code only when the User applies the code in-app to a trip using card payment. Promo codes may not be applied to cash paid service transaction. If the use of promo codes is suspected as being fraudulent, illegal, used by a Carer or Nanny in conflict with our Terms and Conditions relating to promo code use, then the promo code may be cancelled and the outstanding amount will not be reimbursed by Smart Nanny to the Carer or Nanny.
6.4 You are entitled to review In-app Payment reports in the Smart Nanny Account or App. The reports will show the amounts of the In-app Payments brokered as well as the withheld amounts of the Smart Nanny Fee. You must notify us of any important circumstances which may affect our obligations to collect and distribute the Service Fees paid via In-app Payment.
6.5 We are not obliged to pay you the Service Fee due from the User if the In-app Payment failed because User’s credit card or other payment is cancelled or is unsuccessful for other reasons. In such case we will help you in requesting the Service Fee due from the User and shall transmit it to you once the User has made the requested payment.
6.6 Before providing Services, you must verify that the service is being actually provided to the right User or the User has expressly confirmed he/she allows other Users to utilise the User’s account. If you make a mistake in identifying the User, and the In-app Payment is charged to a person, who has not been provided or has not approved the Services for other Users, then we shall reimburse the person for the Service Fee. In such case you are not entitled to receive the Service Fee from us.
6.7 Please note that we will set off any Service Fees paid via In-app Payment against the amounts that you are obliged to pay to us (i.e. Smart Nanny Fees and contractual penalties). We may set off any of your financial liabilities against financial liabilities that you may have against us.
6.8 If we are not able to pay the Fees to you due to you not including your bank account details in your Carer or Nanny’s account or if the bank account details have been noted incorrectly, then we will hold such payments for 60 calendar days. If you do not notify us of the correct bank account details within 60 calendar days from the date that the right to claim such payments has been established, your claim regarding the payment of the Fare not transferred to you shall expire.
7 CUSTOMER SUPPORT
We provide the Carers and Nannies with customer support regarding the use of the Smart Nanny Services. We have the right to stop providing the customer support services in case you are in delay with any of the payments for more than 5 calendar days.
8 RATINGS AND ACTIVITY
8.1 In order to guarantee high-quality service and provide additional reassurance to Users, you hereby acknowledge that the Users may provide you a rating and leave feedback regarding the quality of the Services that you have provided. Your average rating will be linked to your Smart Nanny account and will be available to Users on the Smart Nanny App. If we find out the rating or comment is not given in good faith, this rating or comment may not be projected in the calculations of your rating.
8.2 In addition to the rating, we measure your level of activity and provide you with an activity score, which is based on your activity regarding accepting, declining, not responding and completing Service requests.
8.3 In order to provide reliable services to Users, we may determine a minimum average rating and a minimum activity score that Carers and Nannies must establish and maintain. If, after a pertinent notification from us, you do not increase your average rating or activity score to minimum level within the prescribed time period, your Smart Nanny account will be automatically suspended either temporarily or permanently. We may reverse the suspension of your account if it is merited by any external circumstances or it is detected that the suspension was caused by a system error or false ratings.
9 MARKET OVERVIEWS AND CAMPAIGNS
9.1 We may send you, via the Smart Nanny App, Smart Nanny Account, SMS, e-mail or other means, market overviews, in order to increase your awareness regarding when the demand by Users is highest. Such market overviews are merely recommendatory and do not constitute any obligations for you. As the market overview estimations are based on previous statistics, we cannot give any guarantees that the actual market situation will correspond to the estimations provided in the market overview.
9.2 We may occasionally arrange various campaigns to Users in order to promote the Smart Nanny Platform.
10 RELATIONSHIP BETWEEN YOU, US AND THE USERS
10.1 You hereby acknowledge and agree that we provide an information society service and do not provide Carer or Nanny Services. By providing the Smart Nanny Platform and Smart Nanny Services, we act as marketplace connecting Users with Carers and Nannies. You acknowledge that you are providing the Carer and Nanny Services on the basis of a contract for care of people and/or children and that you provide the Services either independently or via a company as an economic and professional activity.
10.2 You acknowledge that no employment agreement nor an employment relationship has been or will be established between you and us. You also acknowledge that no joint venture or partnership exists between you and us. You may not act as an employee, agent or representative of us nor bind any contract on behalf of us. If due to the implication of mandatory laws or otherwise, you shall be deemed an employee of us, you hereby agree to waive any claims against us that may arise as a result of such implied employment relationship.
10.3 You may not transfer your rights and obligations deriving from the General Terms or Agreement to any third party.
11 PROCESSING OF PERSONAL DATA
12.1 The Smart Nanny Platform is provided on an "as is" and "as available" basis. We do not represent, warrant or guarantee that access to Smart Nanny Platform will be uninterrupted or error free. As the usage of Smart Nanny Platform for requesting services depends on the behaviour of Users, we do not guarantee that your usage of the Smart Nanny Platform will result in any Service requests.
12.2 To the maximum extent permitted under the applicable law, we, nor Smart Nanny’s representatives, directors and employees are not liable for any loss or damage that you may incur as a result of using the Smart Nanny Services, including but not limited to:
12.2.1 any direct or indirect property damage or monetary loss;
loss of profit or anticipated savings;
12.2.2 loss of business, contracts, contacts, goodwill, reputation and any loss that may arise from interruption of the business;
12.2.3 loss or inaccuracy of data; and
12.2.4 any other type of loss or damage.
12.3 We shall not be liable for the actions or non-actions of the Users or co-Users and shall not be liable for any loss or damage that may incur to you as a result of actions or non-actions of the Users or co-Users.
12.4 You shall be fully liable for breach of the General Terms, Agreement or any other applicable laws or regulations and must stop and remedy such breach immediately after receipt of a respective demand from us or any state authority. You shall indemnify us for any direct and/or indirect loss and/or damage, loss of profits, expense, penalty, fine that we may occur in connection with your breach of the General Terms, Agreement and laws and regulations. If a User presents any claims against us in connection with your provision of Services, then you shall compensate such damage to us in full within 7 calendar days as of your receipt of the respective request from us. In case we are entitled to present any claims against you, then you shall compensate us any legal costs related to evaluation of the damages and submission of claims relating to compensation for such damage.
13 TERM AND TERMINATION
13.1 The conditions expressly specified in these General Terms shall enter into force as of submitting the signup application. Agreements and other terms shall enter into force once the specific document or message has been made available to you and you commence or continue providing Services on Smart Nanny Platform.
13.2 You may terminate the Agreement at any time by notifying Smart Nanny at least 7 calendar days in advance, after which your right to use the Smart Nanny Platform and Smart Nanny Services shall terminate. Smart Nanny may terminate the Agreement at any time and for any reason at the sole discretion of us by notifying you at least 3 calendar days in advance.
13.3 Smart Nanny entitled to immediately terminate the Agreement and block your access to Smart Nanny Platform without giving any advance notice in case you breach the General Terms or Agreement, any applicable laws or regulations, disparage Smart Nanny, or cause harm to Smart Nanny’s brand, reputation or business as determined by Smart Nanny in our sole discretion. In the aforementioned cases we may, at our own discretion, prohibit you from registering a new Smart Nanny account.
13.4 We may also immediately block your access to the Smart Nanny Platform and to the Smart Nanny Account for the period of investigation, if we suspect an infringement of the Agreement or fraudulent activity from your behalf. The block of access will be removed once the investigation disproves such suspicions.
13.5 We are aiming to provide the highest quality service to all Users therefore we are monitoring the activity of carers and nanny’s on Smart Nanny Platform. If you fail to meet the minimal service requirements, such as the minimal rating and activity score, we are entitled to immediately terminate the Agreement without giving any advance notice.
13.6 Should you have attended the subsidised Smart Nanny Training Program:
13.6.1 you agree to abide by the terms of this agreement;
13.6.2 you agree to remain on the Smart Nanny platforms for a period of twelve months.
13.6.3 you agree to remain active and available for no less than 500 hours during the period of twelve months as per 13.6.2.
13.7 In the event you are unable to comply with the terms as set out in 13.6, you agree that you are liable to Smart Nanny for the training fee in the amount of R20000.00 (twenty thousand Rands), such amount being due and payable as at date of completion of training.
14.1 Any changes to the Agreement shall enter into force after they have been made available to you via e-mail, Smart Nanny App or Smart Nanny Account and you have continued to provide the Services.
14.2 In order to amend the General Terms, we shall post a revised version on the Smart Nanny website from time to time and give you at least 7 calendar days prior notice. If you continue to use the Smart Nanny Services, you shall be deemed to have accepted the revised conditions.
15 APPLICABLE LAW AND COURT JURISDICTION
15.1 The General Terms and Agreement shall be governed by and construed and enforced in accordance with the laws of Republic of South Africa. If the respective dispute resulting from General Terms or Agreement could not be settled by negotiations, then the dispute shall be solved at Court.
16.1 You are obliged to immediately notify us of any changes to your contact information.
16.2 Any notice required to be given under the General Terms and Agreement shall be sufficiently given if: (i) delivered personally, (ii) sent by courier with proof of delivery, (iii) sent by registered mail, (iv) sent by e-mail or (v) made available via the Smart Nanny App or Smart Nanny Account. Any notice which is sent or dispatched in accordance with this clause shall be deemed to have been received: (i) if delivered personally, at the time of delivery to the party; (ii) if delivered by courier, on the date stated by the courier as being the date on which the envelope containing the notice was delivered to the party; (iii) if sent by registered mail, on the 10th day after handing the document over to the post office for delivery to the party; (iv) if made available via the Smart Nanny App or Smart Nanny Account, or (v) if sent by e-mail, on the day the party receiving the e-mail confirms receiving the respective e-mail or on the 2nd day following the dispatch of the e-mail.
17 FINAL PROVISIONS
If any provision of the General Terms is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision that approximates the intent and economic effect of the affected provision.