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Section 1

SmartWill SYSTEM TERMS AND CONDITIONS OF USE

TERMS AND CONDITIONS

These Terms and Conditions (“the Terms and Conditions”) together with the Disclaimers and Privacy Notice govern your (“the User/you/your”) use of the SmartWill system. By accessing and using the SmartWill system, you agree to be bound by the Terms and Conditions set out in this legal notice together with the Privacy Notice. If you do not wish to be bound by these Terms and Conditions and the Privacy Notice, you may not use, access, display, use, download, and/or otherwise copy or distribute content obtained on the SmartWill system.

These Terms and Conditions become effective when you access the SmartWill System for the first time. The current version of these Terms and Conditions as contained on the SmartWill System governs our respective rights and obligations each time you access this SmartWill system.

A certificate signed by the administrator responsible for maintaining this SmartWill system will be prima facie proof of the date of publication and content of the current version.

On each login to the SmartWill system via smartwill.co.za, you will be asked to reconfirm your acceptance of the current version of the Terms and Conditions.

REGISTRATION AND USE OF PASSWORD
1. The Provider utilises each Users unique identity number (‘the identity number”) in order to access and use certain features or functions of the SmartWill system when logging into the SmartWill system a unique pin will be provided via email and/or an sms to your personal email and/or mobile number linked to your profile
2. The SmartWill system is only made available for Users over the age of 18 years.
3. Your identity number is personal to you and you may not allow any others to use your identity number under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation of your identity number, disclosure of your identity number, or your authorization of anyone else to use your identity number. You agree to notify us immediately if you become aware of or believe there is or may have been any unauthorized use of (or activity using) your identity number or any other need to deactivate your identity number due to security concerns.
4. UNIQUE PINS ARE ISSUED ON A PERSONAL BASIS AND EMAILED/SMS’D TO YOU ON REQUEST TO GAIN ACCESS TO THE SYSTEM. ACCORDINGLY, ALL CONTENT OR INSTRUCTIONS TRANSMITTED BY OR RECEIVED FROM ANYONE PRESENTING YOUR PIN NUMBER ON THE SMARTWILL SYSTEM WILL BE DEEMED BINDING ON YOU. You agree that you are solely responsible and liable for all actions taken via your pin, whether or not made with your knowledge or authority and you hereby indemnify SmartWill against any damages, whether incidental, direct, indirect, special or consequential damages and including without limitation, lost revenues or lost profits arising from or in connection with your pin number being presented on the SmartWill system without your knowledge or authority. You agree to guard your pin carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the SmartWill system for which you will be legally responsible.
5. You expressly give consent, by becoming a registered User of the SmartWill system that any and all information posted by you and collected and stored on your behalf on the SmartWill system for purposes of utilising the products and services offered on and through the SmartWill system and as set out in the Privacy Notice is posted, collected and stored with your express consent. Under no circumstances shall the Provider or any of its affiliates, respective partners, officers, directors, employees, subsidiaries, sponsors or agents be held liable for any damages, whether incidental, direct, indirect, special or consequential damages and including without limitation, lost revenues or lost profits arising from or in connection with the posting, collection and storage of your personal information on the SmartWill system whether incurred by you or any other third party.

USE OF AND RENEWAL/UPDATE OF THE SERVICES
1. The Services are those services as defined at clause 9.3 below.
2. In order to utilise the Services as defined, the User is required to:
  1. update on the System annually by accessing the SmartWill website and updating your Snapshot (as defined in clause 9.3).
  2. ensure that at all stages the email address and contact details of the User remain correct and updated and the User has provided SmartWill with notice of any changes during the course of each annual period;
3. In order to assist the User to utilise the Services, smartwill.co.za will: -
  1. notify the User of the necessity to update their Snapshot on the System via email;
  2. provide the User with a copy of the User’s most recent Snapshot for quick confirmation of details or in order to make the necessary updates and amendments on the System;

RULES OF CONDUCT
1. Your use of the SmartWill system is subject to all applicable national laws and regulations and, in some cases, international regulation. You, the User are solely responsible for all activities, acts and omissions that occur in, from, through or under your identity number and the Provider shall not, under any circumstances, be held liable to any third parties for any activity, act or omission that may occur from, through or under your identity number or password or through your use of the SmartWill system. You shall not use, allow, or enable others to use the SmartWill system, or knowingly condone use of this SmartWill system by others, in any manner that is, attempts to, or is likely to:
  1. be libellous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
  2. affect us adversely or reflect negatively on the Provider, the SmartWill system, the Provider’s goodwill, name or reputation or cause duress, distress or discomfort to the Provider or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the SmartWill system, or from advertising, linking or becoming a supplier to the Provider in connection with the System;
  3. send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, surveys, contests, pyramid scheme, or so-called "spamming" and "phishing";
  4. be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other system or website pages;
  5. transmit, distribute or upload programmes or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
  6. create a false identity for the purpose of misleading others;
  7. violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the Republic of South Africa), judicial or governmental order or any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy or any other rights of the Provider or of any other person, firm or enterprise; gain unauthorized access to the SmartWill system, other users' accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the SmartWill system or to use the SmartWill system in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
  8. modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the SmartWill system or the rights of use and enjoyment of the SmartWill system by any other person, firm or enterprise.
  9. Should the Provider determine that you have, in its opinion, breached one of the Rules of Conduct set out in clauses 7.1 to 7.1.8 above, the Provider reserves the right to remove your access to the SmartWill system and prevent you from remaining as a User on the SmartWill system.

UPDATING OF THESE TERMS AND CONDITIONS

The Provider reserves the right to change, modify, add to or remove from portions or the whole of these Terms and Conditions from time to time. Changes to these Terms and Conditions will become effective upon such changes being posted to this SmartWill system. However, it remains the User’s obligation to read these Terms and Conditions when logging on to familiarize yourself with any and all changes and updates. The User’s continued use of this SmartWill system following the posting of changes or updates will be considered notice of the User’s acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.

SUPPLIER OF SERVICES DETAILS
In accordance with the disclosure requirements of the Electronic Communications and Transactions Act (“ECTA”), Act No 25 of 2002, the Provider, as the provider of services offered for hire or by way of an electronic transaction, makes the following information available to consumers:
1. Provider is Cliqtech (Proprietary) Limited T/ A SmartWills(Company Registration Number:_2018/623557/07) (hereinafter referred to as “Provider”), a private limited company by shares duly registered and existing under the laws of South Africa, with its physical address at (22 Braamfisher Drive Linden, Johannesburg, 2194), Tel (011 568 2397). Provider’s place of registration is (4 Los Angeles Drive Northcliff Ext 15, 2195) and Provider will accept legal service at (4 Los Angeles Drive Northcliff Ext 15, 2195). Provider’s directors and office bearers are: (Mr Zale Clarendon Hechter, Director; Mr Michael Terence Hinton, Director; Mr Champ Thekiso, Director). The main business of Provider is the supply of digital fiduciary services;
2. Provider’s website is www.smartwill.co.za and its email address is [email protected].
3. “SmartWill/ SmartWill Services” means a digital estate planning service that provides an authorized and registered member (“the User”) with the means to access and manipulate their own stored/saved information from a secure remote location (“the Product”). Utilizing this information, a summary of all relevant aspects of the Estate (“the Snapshot”) and a unique Last Will and Testament (“the SmartWill”) is provided for each User. The User is required to remotely update their Snapshot annually to ensure the information remains current. The information is maintained until the User dies when this occurs we distribute the Snapshot to the nominated Executor along with a step by step guide on how to administer the deceased’s Estate in accordance with the User’s SmartWill.
4. Complaints and disputes: Provider offers Users to e-mail complaints to [email protected] via the “Contact us” service of the website smartwill.co.za. Currently Provider does not subscribe to any alternative dispute resolution code or mechanism.

This website contains material which is owned by or licensed to the Provider. This material includes, but is not limited to, the design, layout, look, logos, and graphics. You are authorized to view and download, print and make copies of such printouts provided that you use the material for personal and non – commercial purposes only. You may copy the content to individual third parties for their personal use, but only if you acknowledge this website as the source of the information and /or materials. You may not without the Provider’s expressed written consent distribute or commercially exploit the content.

SmartWill SYSTEM MAINTENANCE

We may suspend this System, and restrict access to the entire System or any part thereof, without prior notice to you in order to update or maintain the SmartWill system.

SUSPENSION AND/OR TERMINATION OF SERVICES
1. We are entitled, without prejudice to any other rights we may have, to suspend and/or terminate the provision of the services to you:
  1. if you are in breach of any of the terms of these Terms and Conditions or the Privacy Notice, and/or any other of our policies applicable to your use of the services and incorporated by reference into this Agreement, and you have not rectified your breach within 14 (fourteen) days of us calling upon you in writing to do so;
  2. you are in breach of our Rules of Conduct set out above and have not provided us with the information we request in order for us to investigate your use of our services within 5 business days of our request;
  3. immediately if we have reason to believe that your use of the services is fraudulent or negatively impacting the operating capability of the services;
  4. immediately if we are notified of or suspect unauthorized access or use of your account or have another security concern, to assess and contain the situation.
  5. immediately if we determine, in our sole discretion, that providing the services is prohibited by law;
  6. on 7 (seven) days written notice to you, if we determine in our sole discretion that it has become impractical or unfeasible for any legal or regulatory reason to continue to provide the services; and/or
  7. if you have not paid any amount due by you in terms of this Agreement on its due date, and have not rectified such non-payment within 14 (fourteen) days after receipt of a notice from us requiring you to do so, in which case the provision of the services may be suspended until the outstanding account fees have been paid.
2. In addition to the provisions of clause 12.1, this Agreement may be terminated by either one of us at any time by providing the other with thirty (30) written notice of its intent to terminate.
3. You may terminate our services at any time by notifying us via e-mail at [email protected]

NOT LIABLE FOR THE EFFECTS OF USE OF THIS SYSTEM

Use of the SmartWill system, and/or any of the services and products offered through it, is at your sole risk. You shall have no claim against us for any loss, damages, harm, injury, death or expense which may be suffered by you or by any third party from any cause whatsoever, howsoever arising, including, but not limited to any act, omission, default or negligence on our part, failure by us to comply with the Privacy Notice, breach of security or the terms of use by any person including ourselves, your reliance on the content of this System or information or advice provided to you, performance of the software, suspension or interruption of your access to this System, or distortion, corruption or loss of data. Damages shall include direct, indirect, general, special, incidental, punitive and consequential.

CHOICE OF LAW

This SmartWill system is controlled, operated and administered by Provider from its offices as set out below within the Republic of South Africa. The User may not use this SmartWill system in violation of South African Privacy Legislation and regulations. If the User accesses this SmartWill system from locations outside of South Africa, that User is responsible for compliance with all local laws. These Terms and Conditions shall be governed by the laws of the Republic of South Africa, and the User consents to the jurisdiction of the South Gauteng High Court, Johannesburg, in the event of any dispute. If any of the provisions of these Terms and Conditions are found by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect. These Terms and Conditions constitute the entire agreement between the Provider and the User with regard to the use of the content and this SmartWill system.

SEVERABILITY

If any provision of these terms is unlawful or void or for any reason unenforceable, then that provision shall be severed from the rest of the terms and shall not affect the validity and enforceability of the rest of the terms.

PERMISSION FOR HYPERLINKS, DEEP LINKING, CRAWLERS AND METATAGS
1. Nobody may establish a hyperlink, frame, metatag or similar reference, whether electronically or otherwise (collectively referred to as linking), to this System or any subsidiary pages before receiving our prior written approval, which may be withheld or granted subject to the conditions we specify from time to time.
2. An application for linking must be submitted to the SmartWill system administrator. Once received we will do our best to respond and enter into further discussions with you. If you don’t get a written response from us within five business days, consider your request as having been rejected.
3. Breach of these conditions entitles us to take legal action without prior notice to you and you agree to reimburse the costs associated with such legal action to us on an attorney and own client scale.

“Cookies” are small amounts of information stored by your computer. Our server may issue cookies to your computer so that we can better serve you when you return to our System. You can set your browser to notify you when you receive a “cookie” giving you the chance to decide whether to accept it.

ELECTRONIC COMMUNICATIONS

By using this SmartWill system communicating with the Provider by electronic means, the User consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be in writing.

Section 2

TERMS AND CONDITIONS FOR HAVING A SmartWill WILL:

GENERAL
1. These Terms and Conditions (“the Terms and Conditions”) govern your (“the User/you”) use of the Last Will and Testament Service offered by the SmartWill system located on smartwill.co.za (“the SmartWill”). By accessing and using the SmartWill, you agree to be bound by the Terms and Conditions set out in this legal notice. If you not wish to be bound by these Terms and Conditions, you may not utilize the SmartWill obtained on the SmartWill system.
2. Although we take all steps to ensure the correctness of your SmartWill, you warrant and confirm that you have read the draft SmartWill as provided by the SmartWill System before signature and by signing the SmartWill, you confirm and acknowledge the correctness and accuracy thereof and that no guarantees or warranties are made to you regarding the content, correctness and legality of your SmartWill.
3. These Terms and Conditions become effective when you access the SmartWill on the SmartWill system. The current version of these Terms and Conditions governs our respective rights and obligations each time you access the SmartWill system and SmartWill.
4. The SmartWill as provided to you on the SmartWill system has been drafted by qualified attorneys at law and the Executor Function performed by Digital Estate Planning Initiatives (Proprietary) Limited T/ A Estate Plan (Company Registration Number: 2009/011113/07) is overseen by a qualified attorney/s.

INSTRUCTIONS FOR COMPLETION AND SIGNATURE OF YOUR SmartWill:
It is very important that you complete and sign your SmartWill properly and correctly otherwise it can be contested and set aside by the courts.
1. After your SmartWill has been emailed to you with all the completed information already included in it (because you used SmartWill properly), you need to: -
  1. Print out two copies of Your Last Will and Testament.
  2. Sign each page of Your Will in full at the bottom of the page
    (where it says Signed by: Testator/Testatrix______________).
    Get two witnesses to sign each page of your Will in full at the bottom of the page (where it says Witness 1 and Witness 2).
    
    IT IS VERY IMPORTANT THAT THE PEOPLE WHO SIGN AS YOUR WITNESSES ARE NOT INHERITING (GETTING ANY MONEY OR ASSETS) A GUARDIAN, AN EXECUTOR OR A TRUSTEE IN YOUR WILL. IF THEY ARE, AND THEY SIGN THEY WILL NO LONGER BE ABLE TO INHERIT OR UNDERTAKE THEIR MANDATED FUNCTIONS.
2. You must sign and date the last page of your Will in the place that says, “Testator/Testatrix signature.
3. Your two witnesses must complete the information on the last page of your Will and sign in the place that says “Sign”.
4. You must ensure that you sign the Will at the same place and time as the Witnesses, witness your Will.
5. Should you not be able to sign your Will due to disability or incapacitation please contact SmartWill at [email protected] for assistance.

FEES

As a User of the SmartWill System, SmartWill offers discounts to you on the winding up of your estate subject to the total value of the Estate and provided that you have opted for the SmartExecutor service and the annual fee has been paid and up to date for the SmartExecutor service. You may request a copy of the latest Schedule of Fees directly from SmartWill at [email protected].undertakes to make its Schedule of Fees available to the User electronically on an annual basis at the same time that you are requested to update your Snapshot and your SmartWill.

GENERAL DISCLAIMERS
1. Should the Executor ascertain that the estate of the User as stipulated in the User’s SmartWill includes reference to assets that have not been finally transferred into the name of the User prior to your death e.g. a property that was left to you either intestate or testate by a parent, then Estate Plan reserves the right to charge the full Executor’s fee permissible in terms of the laws of the Republic of South Africa for the winding up of the earlier estate prior to commencing on the finalisation of your Estate.
2. In terms of the Administration of Estates Act of 1965, should the Estate have a Total Asset Value of less than or equal to R250 000.00 it is deemed to be a Section 18(3) Estate. To have your Estate finalised for free your Snapshot of you Estate must have been updated in the last 12 months preceding your death. You need to have opted for the SmartExecutor service and the annual fee must be paid and up to date for the SmartExecutor service. The free service will include:
  1. Reporting the deceased estate to the Master of the High Court and obtaining a Letter of Authority.
  2. Opening of an Estate late bank account, if necessary.
  3. Closing of all the deceased's bank accounts
  4. Distributing any cash in the Estate late bank account to heirs.
    
    (“the Service”)
    Failing this annual update and not having opted for the SmartExecutor service, Estate Plan will provide a quotation to your beneficiaries and/or family members to wind up the Section 18(3) estate on behalf of your beneficiaries. Should the quotation not be accepted by your beneficiaries/Executor, Estate Plan reserves the right to renounce its appointment as the executor and to defer to the nominated the alternative executor as the User’s Executor.
3. Should your Snapshot be up to date and you have opted for the SmartExecutor service Estate Plan will act as the Executor at no charge to the User’s Estate to provide the Service. This will however not include the following:
  1. Estates that are insolvent.
  2. Estates where there are civil disputes or court actions of any nature are pending or ongoing as at the time of death of the User, including but not limited to disputes between potential beneficiaries regarding the validity of the will or which version of the will is valid, who the correct beneficiaries are and legal disputes involving fixed property.
  3. Finalising outstanding income tax returns.
  4. Transfer cost for the transfer of any movable or immovable property in the Estate.
  5. the provision of any other or further service not described in Paragraph 4.2 above, subject to the sole discretion of the Provider.

UPDATING OF YOUR SmartWill
1. You may access the SmartWill on the SmartWill system at any time to update your Last Will and Testament. You undertake to always ensure your SmartWill is properly signed and witnessed as per section 2 above.
2. You will be reminded electronically to update your SmartWill on a yearly basis by the Provider.
3. You undertake to update your personal contact details including but not limited to email addresses, postal addresses and cellphone numbers on a regular basis to ensure that at all times SmartWill can contact you and your family.

SMARTCHECK SERVICE
1. The SmartCheck service is renewable annually.
2. The service will run a check on the first day of the month in real-time against the South African Department of Home Affairs to determine the User’s death status and proactively inform the User’s dependents of the existence of the will held in safe-keeping with Estate Plan for 12 consecutive months.
3. SmartWill is reliant on third parties to provide the SmartCheck service. As a result, SmartWill can not guarantee the service’s accuracy and availability.

COLLECTION AND STORAGE OF YOUR SmartWill
1. SmartWill will facilitate the collection of the SmartWill should the User have elected to purchase the SmartStorage service. The SmartWill service is payable annually and allows for the collection of the new or updated Will once a year at or after the date of annual renewal of the service. Storage of the Will will be facilitated by Cliqtech as the Administrator of the product.
2. Should the User decline to use the SmartStorage Service or fail/refuse to deliver/courier the first SmartWill Will or fail to deliver/courier an original copy of the further/later amended SmartWill Will to our offices for secure storage of the Will, the User undertakes to inform his/her next of kin as to where the original SmartWill is stored so the appointed executor can proceed with the winding up of the User’s estate upon death.

To add to Terms and Conditions
NB!
You will be held liable for the costs should you not collect the will within the set time.

version: 6 August 2020