1. Contractual Relationship
By proceeding and/or utilising the Smart Nanny app or any associated service, I acknowledge that I have read and understood the terms and conditions as stipulated hereunder and that I agree to same.
By proceeding to register and/or utilise the services of Smart Nanny you agree to be bound by these Terms, which establishes a contractual relationship between you and Smart Nanny. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Smart Nanny may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Additional terms and conditions may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Additional terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Additional terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Smart Nanny may amend the Terms related to the Services from time to time. Amendments will be effective upon Smart Nanny’s posting of such updated Terms. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services constitute a technology platform that enables users of Smart Nanny’s mobile applications or websites provided as part of the Services (each, an “Application”) to identify potential carer or nanny services with independent third party providers of such services(“Third Party Providers”). Unless otherwise agreed by Smart Nanny in a separate written agreement with you, the Services are made available solely for your personal, non-commercial use.
You acknowledge that smart nanny does not provide carer or nanny services or function as a carer or nanny and that all such carer or nanny services are provided by independent third party contractors who are not employed by smart nanny or any of its affiliates.
License.
Subject to your compliance with these Terms, Smart Nanny grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Smart Nanny.
Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Smart Nanny; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under Smart Nanny’s various brands or request options associated with carer or nanny services. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of Smart Nanny’s subsidiaries and affiliates; or (ii) independent Third Party Providers.
Third Party Services and Content.
The Services may be made available or accessed in connection with third party services and content (including advertising) that Smart Nanny does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Smart Nanny does not endorse such third party services and content and in no event shall Smart Nanny be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service.
Ownership.
The Services and all rights therein are and shall remain Smart Nanny’s property or the property of Smart Nanny’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Smart Nanny’s company names, logos, product and service names, trademarks or services marks or those of Smart Nanny’s licensors.
3. Your Use of the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Smart Nanny certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Smart Nanny’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Smart Nanny in writing, you may only possess one Account.
User Requirements and Conduct.
You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Text Messaging.
By creating an Account, you agree that the Services may send you text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Smart Nanny at any time by following the directions found at Smart Nanny’s website. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
Promotional Codes.
Smart Nanny may, in Smart Nanny’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that Smart Nanny establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Smart Nanny; (iii) may be disabled by Smart Nanny at any time for any reason without liability to Smart Nanny; (iv) may only be used pursuant to the specific terms that Smart Nanny establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Smart Nanny reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Smart Nanny determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Provided Content.
Smart Nanny may, in Smart Nanny’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Smart Nanny through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Smart Nanny, you grant Smart Nanny a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Smart Nanny’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Smart Nanny the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Smart Nanny’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Smart Nanny in its sole discretion, whether or not such material may be protected by law. Smart Nanny may, but shall not be obligated to, review, monitor, or remove User Content, at Smart Nanny’s sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Smart Nanny does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
4. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”). After you have received services or goods obtained through your use of the Service, Smart Nanny will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges may include other applicable fees and/or surcharges and will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Smart Nanny.
All Charges are due immediately and payment will be facilitated by Smart Nanny using the preferred payment method designated in your Account, after which Smart Nanny will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Smart Nanny may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
As between you and Smart Nanny, Smart Nanny reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Smart Nanny’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Smart Nanny will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Smart Nanny may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Smart Nanny does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by Smart Nanny (on Smart Nanny’s website, in the Application, or in Smart Nanny’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Smart Nanny provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider. If you're using the booking service, payment is due before the service begins. If the service is canceled, then 70% of the monies paid will be refunded to you provided the cancelation is not due to our fault. Overall payment is due on receipt of the invoice.
5. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
The services are provided “as is” and “as available.” Smart Nanny disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, Smart Nanny makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the services or any services or goods requested through the use of the services, or that the services will be uninterrupted or error-free. Smart Nanny does not guarantee the quality, suitability, safety or ability of third party providers. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
LIMITATION OF LIABILITY.
Smart Nanny shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the services, even if Smart Nanny has been advised of the possibility of such damages. Smart Nanny shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the services or your inability to access or use the services; or (ii) any transaction or relationship between you and any third party provider, even if Smart Nanny has been advised of the possibility of such damages. Smart Nanny shall not be liable for delay or failure in performance. In no event shall Smart Nanny’s total liability to you in connection with the services for all damages, losses and causes of action exceed five hundred Rands (R500).
Smart Nanny’s services may be used by you to request and schedule carer or nanny services with third party providers, but you agree that Smart Nanny has no responsibility or liability to you related to any transportation, goods or logistics services provided to you by third party providers other than as expressly set forth in these terms.
The limitations and disclaimer in this section 5 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
Indemnity.
You agree to indemnify and hold Smart Nanny and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Smart Nanny’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
6. Loss and/or Damage to Property or Harm to Persons
You understand and agree that it is your responsibility to ensure that you secure your property at the location of the provision of service.
Whilst you may expect Third Party Providers to respect your property, the offices of Smart Nanny shall not be held liable in the event of the Third Party Provider causing loss or damage to your property as expected.
Smart Nanny shall not be held liable for any harm the Third Party Provider may cause to any person or child being taken care of or supervised. Smart Nanny shall similarly not be held liable for any negligent conduct by any Third Party Provider. You understand that in any instances of negligence by a Third Party Provider, such Third Party Provider shall be liable and no fault can be attributed to Smart Nanny.
7. Governing Law; Arbitration.
Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of South Africa, excluding its rules on conflicts of laws. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules' Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be Johannesburg, South Africa. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
8. Other Provisions
Notice.
Smart Nanny may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account. You may give notice to Smart Nanny by written communication to Smart Nanny's address at 140 West St, Sandown, Sandton, 2196
General.
You may not assign or transfer these Terms in whole or in part without Smart Nanny’s prior written approval. You give your approval to Smart Nanny for it to assign or transfer these Terms in whole or in part, including to: (i) a subsidiary or affiliate; (ii) an acquirer of Smart Nanny’s equity, business or assets; or (iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, Smart Nanny or any Third Party Provider as a result of the contract between you and Smart Nanny or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”