Terms & Conditions – Moonstone Business School of Excellence

*The Client agrees that his / her consent, given electronically by the acceptance of these Terms and Conditions, will have the same legal effect as if it had been personally signed by the Client. Please print a copy of these Terms and Conditions for future reference.

DEFINITIONS
1. “CPD Cycle” means a period of 12 months commencing on 1 June of every year and ending on 31 May of the following year.
PREAMBLE
1. Whereas the Client wishes to receive the above-mentioned selected service from MBSE and whereas the Client wishes to register via Self-Help registration, the following terms and conditions apply.
2. The Client and MBSE have agreed that MBSE will provide the selected Service to the Client on the terms and conditions set out in this agreement.
3. Any agreement to deliver the Service to the Client is subject to MBSE’s continued registration as an education provider.
4. MBSE is an accredited service provider with the Department of Higher Education and Training.
SUBSCRIPTION TERM & TERMINATION.
1. This Agreement shall commence on acceptance of the Terms and Conditions (“the Commencement Date”), and shall terminate at the end of the current CPD cycle (“Subscription Period”).
2. The Terms and Conditions may be terminated on the giving of 2 (two) months’ notice in writing by either Party at any time during the Subscription Period. Refunds on any Subscription Fees due and payable and / or paid in terms of this Agreement will not be permitted where the Client terminates this Agreement in terms of this clause during the Subscription Period.
3. Where the Subscription Period expires, the Agreement shall be automatically renewed for any subsequent CPD cycles, unless:
  1. either Party notifies the other Party of termination, in writing, at least 1 (one) month before the expiry of any Subscription Period; or
  2. otherwise terminated per the provisions of this Agreement.
4. A renewal referred to in clause 3.3 is subject to an annual increase in the Subscription Fees in accordance with the allowable percentage increases, the inflation rate at the time of the Renewal Period, and at the discretion of MBSE.
5. On termination of this Agreement for any reason:
  1. the Client shall immediately pay to MBSE all amounts due, owing and payable by the Client in terms of this agreement;
  2. any subscription granted under this Agreement shall immediately terminate; and
  3. the Client shall not be entitled to make further use of the Services.
CLIENT SUBSCRIPTIONS
1. Subject to the Client purchasing the applicable Individual Subscription Package per the terms and conditions of this Agreement, MBSE hereby grants to the Client a non-exclusive, non-transferable right to use the Services during the Subscription Term.
2. The Client may, from time to time during the Subscription Term, request an upgrade to his / her Individual Subscription. Should the aforementioned occur:
  1. Upon approval by MBSE, MBSE shall grant the Client access to the Services as per the provisions of this Agreement; and
  2. The Client’s Subscription Fee will be adjusted in accordance with same.
REGISTRATION
1. The Client will utilise MBSE’s Self-Help option via the Client’s online profile to register for the selected Service.
2. The Client will choose the Individual Subscription Package which the Client will be subscribed for.
3. Per the particular selected Individual Subscription Package option, the Client will, as and when it deems appropriate, choose from the selected Products as provided for in the Product Basket and enrol via the completion of the online Self-Help registration documentation.
4. The Client will be responsible for ensuring that the Client’s details are correctly and accurately recorded in the documentation, and that all the required information is completed in the prescribed manner.
5. The Client will be responsible for ensuring that the Client is registered for the correct selected Service. MBSE will not be liable if the Client registers for and completes the incorrect selected Service.
6. MBSE reserves the right not to process registrations should any information be incomplete.
7. MBSE may, at any stage amend, edit or revise its registration process.
8. The Client will be required to log into their MyMBSE profile to upload a certified copy of their ID to finalise the process. This is for identification and authentication purposes.
CANCELLATION (Client is permanently discontinuing/withdrawing from the course)
1. Due to the identity verification that needs to take place, MBSE does not provide for the replacement of learners with substitute learners. In exceptional cases where sufficient notice is provided, and with management approval, MBSE will consider substitution of learners.
2. No refund is permissible on Additional Fees (e.g. re-assessment Fees, online tutoring Fees).
NON-COMPLETION
1. Should the Client, who, as a result of unforeseen circumstances, be prevented from completing the training by the closing date of the course, (this will depend on the start date as well as the particular selected service module registered for at the time), the Client will be required to contact MBSE on the prescribed application form within 10 business days, furnishing reasons for the Client not being able to complete the training. The matter will then be referred to the MBSE Day Management Committee for deliberation and a decision will be communicated accordingly.
2. Please be advised that given the high level of student registrations and administration that MBSE has to manage daily, a student who is unable to complete the training will only be allowed to continue the training in exceptional circumstances.
3. If proof and certification are provided by the Client that the Client could not complete the training due to any unforeseen reason (such as an illness, death or accident), the Client may reschedule the completion of the training at no additional cost.
SUBSCRIPTION FEES
1. The Subscription Fees for the Individual Subscription Package is set out on the landing page where the Client accepts these terms and conditions.
2. The Subscription Fees quoted in the Product Basket Table is exclusive of VAT.
INVOICING & PAYMENT
1. The Client shall at all times be responsible and liable for the payment of the Subscription Fees as determined by the selected Service.
2. MBSE will issue an invoice to the Client on registration for the selected Service.
3. The Subscription Fees are due and payable by the Client on receipt of the Subscription Fee invoice from MBSE.
4. Where the Client makes payment via an electronic funds transfer (“EFT”), the Client will only be granted access to the online portal after MBSE has fully processed and cleared the payment.
5. The Subscription Fees shall be paid into a bank account nominated by MBSE in writing to the Client.
6. If at any time the Client, acting in good faith, disputes all or any of the Subscription Fees before the payment of an invoice:
  1. The Client shall notify MBSE within 7 (seven) business days after the date of receipt of an invoice for Subscription Fees, specifying the reasons for disputing the invoice within such notice; and
  2. MBSE may in its sole discretion decide whether to accept or reject the grounds pertaining to the dispute.
7. All payment obligations under this agreement shall be met in Rand.
RESULTS
1. Students will be able to view their results and monitor their progress on the online portal. Students who have passed the final summative assessments will receive a certificate confirming completion of the applicable selected Service Module.
2. MBSE reserves the right not to release any results should any Subscription Fees be outstanding.
3. The Client agrees that the confidentiality obligations contained in this agreement shall still apply to such documentation or other information after termination of this agreement.
4. The Parties recognise that the results of the training and various other information as may be obtained and/or shared under this Agreement constitute the Client’s personal information as contemplated in the Protection of Personal Information Act, 4 of 2013 (“POPI”). MBSE undertakes to comply with the provisions of the said legislation and/or any other applicable laws regulating the collection, use and processing of the Client’s personal information. The client further consents to the collection, use and disclosure of the Client’s personal information provided.
BREACH
1. Notwithstanding anything to the contrary contained herein the wronged party shall have the right to terminate this agreement with immediate effect by giving notice in writing to that effect to the other, in any of the following events:
  1. if either party commits a material breach of any of the provisions of this agreement and fails to rectify such breach within 14 (fourteen) days after having been notified in writing to do so;
  2. if either party has given the other any false or misleading information or has made any misrepresentation in connection with this agreement or if either party does so at any time during the continuance of this agreement in connection with any matter dealt with in this agreement;
  3. if either party is convicted of any criminal offence involving dishonesty or fraud, or is found to be in breach of a fiduciary duty; or
  4. if the estate of either party is sequestrated, or placed under liquidation or judicial management, or if either party enters into any arrangement or composition with its creditors in relation to the payment of its debts, or ceases to carry on its business as a going concern.
2. In addition to clause 11.1 above, if either Party breaches any provision of this Agreement (“Defaulting Party”) and remains in breach for 14 (fourteen) days after the other Party (“Innocent Party”) has given written notice to the Defaulting Party requiring the Defaulting Party to rectify that breach, or if either Party repudiates this Agreement, then the Innocent Party shall be entitled at its option, and in either event without prejudice and without limitation to any other rights or remedies which the Innocent Party may have in law, including the right to claim damages:
  1. to sue for the immediate specific performance of any of the Defaulting Party’s obligations under this Agreement whether or not any such obligation is then due; or
  2. to cancel this Agreement, which cancellation shall take effect on the giving of written notice of cancellation to the defaulting Party.
3. If the Client is in breach of any of its obligations in terms of this Agreement, MBSE is entitled and hereby authorised to suspend the rendering of any Services, which entitlement shall be without prejudice to any rights that MBSE may have arising from the breach.
INTELLECTUAL PROPERTY
1. Each party acknowledges that the intellectual property and any documentation, business methods, systems, application software, know-how and knowledge of each party exchanged between the two in the course of this agreement is of a strictly confidential nature, being the sole property of the disclosing party (“the owner party”).
2. In this regard, each party undertakes that it will not at any time without the prior written consent of the owner party, whether before or at any time after the termination of this agreement, divulge or use, either directly or indirectly, for its own benefit (other than as permitted by this agreement) or that of any other person or entity, any of such information, documentation, business methods, systems, application software, know-how or knowledge exchanged between the parties, and shall only implement such information as is necessary in order to carry on its functions and responsibilities in accordance with the terms of this agreement and the legislation, for the duration of this agreement.
3. At the termination of this agreement, at the election of the owner party, the other party shall either return to the owner party any documentation or other materials provided to it by the owner party or confirm destruction of the same in a written statement signed by the other party, save for any copies that the owner party elects the other party to retain and/or is otherwise required by legislation to be retained by the owner party.
FORCE MAJEURE
1. No Party shall have any liability to the other Party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Moonstone or any other party), failure of a utility service or transport or telecommunications network, acts of god, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of service providers or sub-contractors (hereinafter “force majeure event”), provided that the affected Party is notified of such an event and its expected duration.
DISPUTE RESOLUTION
1. Any dispute which may arise at any time between the parties relating to any matter arising out of this agreement or the interpretation thereof, (other than where an Interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator appointed by AFSA. Either party may demand by written notice to the other, that a dispute be referred to arbitration. The arbitration shall be held at Cape Town in accordance with AFSA’s rules, and the parties irrevocably agree that the decision in the arbitration proceedings shall be final and binding upon them; that it shall be carried into effect and that it may be made an order of any court of competent jurisdiction.
2. The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
GENERAL
1. No Party is entitled to assign any right or obligation in terms of this Agreement to any person or firm without the prior written consent of the other Party.
2. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither Party is the other’s agent, partner, employee, or representative.
3. This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives, as the case may be.
4. This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. The Parties agree that the High Court of South Africa, Western Cape Division, shall have exclusive jurisdiction to hear any disputes that may arise from this Agreement.
5. No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement, and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
6. No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
7. This Agreement constitutes the whole Agreement between the Parties as to the subject matter hereof and no Agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
8. Each provision of this Agreement is severable from the other provisions. Should any provision be found by a Court of competent jurisdiction to be invalid or unenforceable for any reason, the Parties will consult with one another in good faith in order to agree, if possible, to an alternative provision in accordance with the intent and tenor of this Agreement, failing which the whole Agreement shall be deemed to have been cancelled. The remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
9. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re-drafting, entering into and implementation of legally binding documents.
10. Should either Party instruct attorneys to take any steps to enforce any rights in terms of this Agreement arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the party and party scale, collection commission and tracing charges, which costs shall be taxed by a Taxing Master having competent jurisdiction.
11. Each of the Parties hereto acknowledges that they have been free to secure independent legal advice as to the nature and effect of all of the provisions of this Agreement and that they have either taken such independent legal advice or dispensed with the necessity of doing so. Further, each of the Parties hereto acknowledge that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties.
12. The person signing this Agreement on behalf of any one of the Parties expressly warrants his/her authority to do so.
NOTICES
1. The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the addresses set forth in these Terms and Conditions.
2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing and delivered to the relevant Party’s physical address, but it shall be competent to give notice by prepaid registered post or e-mail.
3. Any Party may by notice to any other Party(ies) change the physical address chosen by it for receiving official and/or legal notices (being its domicilium citandi et executandi) from the other Party(ies) to another physical address in the Republic of South Africa or its facsimile number or e-mail address; provided that the change shall become effective vis-à-vis that addressee on the 7th Business Day from the deemed receipt of the notice by the addressee.
4. Any notice to a Party:
  1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its chosen physical address shall be deemed to have been received on the 7th Business Day after posting (unless the contrary is proved);
  2. delivered by hand to a responsible person during ordinary business hours during Business Days at its chosen physical address shall be deemed to have been received on the day of delivery; or
  3. sent by e-mail to its chosen e-mail address shall be deemed to have been received on the date it was sent (unless the contrary is proved), provided it was sent on a Business Day, failing which it will be deemed to have been received on the next Business Day.
5. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.