1.1 “Additional Terms” means all additional terms and conditions applicable to MSM’s Offering and includes:
1.1.2 FAQ’s; and
1.1.3 PAIA Manual.
1.2 “App” means the MSM mobile phone and tablet application.
1.3 “Business Day” means any day other than a Saturday, Sunday or statutory public holiday in the RSA.
1.4 “FAQ’s” means the frequently asked questions and answers thereto containing important information relevant to MSM’s Offering, as amended from time to time and found at MSMPropertyfund.com.
1.5 “MSM” means MSM Group (Proprietary) Limited (registration number: 2012/126574/07), a private company duly incorporated in accordance with the laws of the RSA.
1.6 “MSM’s Affiliates” means MSM’s shareholders, directors, present or past employees, consultants, service providers, suppliers, holding companies, subsidiaries, affiliates, agents, representatives, successors and assigns.
1.7 “MSM’s Offering” means MSM’s Platform and MSM’s Services.
1.8 “MSM’s Platform” means the App and Website.
1.10 “MSM’s Services” means any services provided by MSM through MSM’s Platform or otherwise.
1.11 “Law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law.
1.12 “Loss” means financial loss as result of the use of any aspect of MSM’s Offering, claims, damages, liabilities, losses, costs (including legal costs on a scale as between attorney and own client and any additional legal costs) or expenses of any kind, whether direct or indirect, actual, consequential, compensatory, incidental, punitive or special (including damages for loss of business, revenue, profits, data, use, goodwill or other intangible losses) including loss incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry regarding any aspect of MSM’s Offering.
1.13 “PAIA Manual” means MSM’s manual in respect of the Promotion of Access to Information Act, No 2 of 2000(as amended), as amended from time to time and found at MSMPropertyfund.com.
1.14 “Parties” means MSM and the User and any reference to “Party” shall be a reference to either of them as the context may require.
1.15 “RSA” means the Republic of South Africa.
1.16 “Terms” means these terms and conditions as contained herein (including any Additional Terms) and amended from time to time.
1.17 “Third Party Offerings” means any websites and/or services offered by third parties and which offerings may or may not be endorsed by MSM.
1.18 “Third Party Providers” means any third-party service providers who have been appointed by MSM to assist MSM with the provision of MSM’s Services.
1.19 “User” means any user of MSM’s Offering.
1.20 “Website” means the website owned by MSM and situated at MSMPropertyfund.com.
2.1 The use of MSM’s Offering is governed by these Terms. Each time a User utilises MSM’s Offering, the User agrees to be bound by these Terms.
2.2 MSM may change these Terms at any time and will publish the amended and latest version. To the extent that these Terms are amended so as to materially alter a User’s rights in a substantial way, MSM will notify Users of any material change and a User shall be entitled to discontinue using MSM’s Offering.
2.3 The User confirms acceptance of these Terms as modified, changed, supplemented or updated by MSM.
2.4 These Terms incorporate all Additional Terms, with the User acknowledging that they have read and understand all Additional Terms and that the User agrees to be bound to them.
2.5 People below the age of 18 years are prohibited from using MSM’s Offering.
MSM’s Offering does not and should not be deemed to constitute financial advice of any kind. Users acknowledge and understand that they are solely responsible for any decision to utilise any of MSM’s Services and should seek professional advice where necessary.
4.1 By using MSM’s Offering the User acknowledges and agrees that MSM’s Offering is provided without any representations, warranties, promises or guarantees whatsoever of any kind including, without limitation, any representations, warranties, promises or guarantees regarding the accuracy, currency, completeness, adequacy, availability, suitability or operation of MSM’s Offering and that MSM’s Platform is free of viruses, destructive materials or any other data or code which is able to corrupt, compromise or jeopardise the operation or content of a computer system, computer network or a User’s hardware or software.
4.1.1 MSM accepts no responsibility for any errors or omissions on MSM’s Platform.
4.1.2 MSM may, in its sole discretion, at any time, suspend or terminate the operation of any aspect of MSM’s Offering, without prior notice.
MSM retains all right, title and interest in MSM’s Offering, all copyrights, patents, trade secrets, trademarks, other intellectual property rights, trade names, logos, slogans, custom graphics, button icons, scripts, videos, text, images, software, code, files, content, agreements, policies, information and all other material available on MSM’s Platform which may not be copied, imitated or used, in whole or in part, without MSM’s written permission. MSM reserves all rights not expressly granted.
6.1 MSM accepts no responsibility for the accessibility of MSM’s Platform nor the provision of MSM’s Services. In no event will MSM or MSM’s Affiliates be responsible or liable for any Loss regardless of whether MSM or any MSM Affiliates has been advised of the possibility of such Loss, including without limitation any Loss related to the following:
6.1.1 the use or performance of MSM’s Platform including any fault, delays, interruptions or lack of availability of MSM’s Platform, including unauthorised access to a User’s account;
6.1.2 the veracity of any information that the User provides to MSM;
6.1.3 the failure to receive in any way the transmission of any data, content, funds or property from a User;
6.1.4 any reliance on, or decision made on the basis of, information or material shown on or omitted from MSM’s Platform;
6.1.5 any conduct or content of any Third Party Providers and/or any Third Party Offerings;
6.1.6 changes in tax Law or any other Law; or
6.1.7 the User’s violation of these Terms and/or any Additional Terms.
6.2 To the fullest extent permitted by Law, the User indemnifies, defends and holds harmless MSM and MSM’s Affiliates from and against all Loss arising from or related to the above. This indemnity will bind upon and inure to the benefit/obligation of any successors, assigns, heirs and personal representatives of MSM (or any of MSM’s Affiliates) and the User. The User’s obligations contained herein remain operative regardless of whether the User ceases to use any aspect of MSM’s Offering. MSM (or any of MSM’s Affiliates) reserves the right to exercise sole control over the defence, at the User’s expense, of any claim subject to indemnification pursuant to these Terms.
6.3 Notwithstanding the fact that MSM’s Platform may refer to Third Party Offerings, such Third Party Offerings are used entirely at the User’s risk and MSM is not responsible for any Loss, arising from the User’s use of Third Party Offerings. MSM does not endorse, warrant or make any representations about the content, products, services, security or reliability of any Third Party Offerings.
7.1 If any provision of these Terms is found to be invalid under any Law, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of these Terms will be enforced as if such provision was not included.
7.2 MSM may assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification. The User is prohibited from assigning, transferring, or subcontracting any rights and/or obligations under these Terms without MSM’s written consent.
8.1 Should any dispute, disagreement or claims arise between the Parties concerning these Terms (the “Dispute“), the Parties shall attempt to resolve such dispute informally by way of negotiation in Johannesburg (or such other venue as agreed in writing between the Parties). This entails that one Party invites the other in writing to meet and endeavour in good faith to resolve the dispute within 7 (seven) Business Days from the written invitation. The Parties may not initiate further proceedings until either Party has by written notice to the other, declared that the Dispute is incapable of being resolved.
8.2 Should the Dispute not be resolved in terms of clause 8.1 then the Parties shall refer the matter to mediation by a single mediator in Johannesburg (or such other venue as agreed in writing between the Parties). The mediator shall be selected by agreement between the Parties, or failing such agreement, shall be nominated by the President for the time being of the South African Association of Mediators and the mediation shall be conducted as soon as practical but within 14 (fourteen) days of appointment of the mediator in terms hereof. The costs of the mediation shall be borne equally between the Parties.
8.3 Should the Dispute be incapable of resolution by mediation in accordance with clause 8.2 then the Parties hereby irrevocably agree that the Dispute shall be referred for determination (with either Party be able to demand an arbitration in accordance with this clause 8.3) by arbitration in accordance with the rules and procedures of the Arbitration Foundation of Southern Africa (“AFSA”) on the following basis:
8.3.1 The Parties consent to the expedited rules of AFSA;
8.3.2 The language shall be English;
8.3.3 The number of arbitrators shall be 1 (one), who shall be appointed by agreement between the Parties or failing agreement within 10(ten) Business Days after the referral of the dispute, appointed by the Secretariat of AFSA who shall administer and manage the arbitration proceedings; and
8.3.4 The arbitration venue shall be Johannesburg (or any other venue as agreed in writing between the Parties).
8.4 The arbitrator’s award shall be in writing and shall be final and binding upon the Parties and, at the notice of either Party, be capable of being made an order of competent court.
8.5 The provisions of clause 8 shall not preclude any Party from access to a court of competent jurisdiction for urgent and/or interim relief pending the outcome of the arbitration.
8.6 This clause is a separate, divisible agreement from the rest of these Terms and shall remain in force even if these Terms terminate, are nullified or cancelled for whatsoever reason or cause.
8.7 The periods for negotiation or mediation may be shortened or lengthened by written agreement between the Parties.
Laws, regulations and jurisdiction
9.1 The use of MSM’s Offering shall be governed by, and construed in all respects in accordance with the laws of the RSA, and subject to the exclusive jurisdiction of the courts of the RSA.
10.1 Any questions or suggestions regarding these Terms, shall be sent to the following addresses:
WeWork 155 West Street, Sandton GP 2031
10.2 MSM has chosen the above registered address as its domicilium citandi et executandi for the purposes of receiving notices and legal proceedings in connection with these Terms.
10.3 The User nominates the physical address as elected for the purpose of utilising MSM’s Services as domicilium citandi et executandi for the purposes of receiving notices and legal proceedings in connection with these Terms.