1 Definitions

1.1 “Acceptance Date” means the date on which you accepted the Agreement, by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone;

1.2 “Agreement” means the agreement concluded between you and ESET SA which agreement will be exclusively governed by these terms and conditions and the privacy policy;

1.3 “Business Day” means Monday to Friday, but excludes Saturdays and a day which is an official public holiday in the Republic of South Africa; 

1.4 “Business Hours” means the hours between 08h30 and 17h00 on a Business Day;

1.5 "CPA" means the Consumer Protection Act, 2008;

1.6 “ECT Act” means the Electronic Communications and Transactions Act, 2002;

1.7 “ESET SA”, “we”, “us” and “our” means 4D Innovations Group (Proprietary) Limited t/a ESET Southern Africa;

1.8 “ESET SA Marks” means any trademarks, logos, brand names, trade names domain names or other names or marks of ESET SA whether registered or not;

1.9 “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the aforegoing and any names, licenses, know how, trade secrets and data associated with the aforegoing;

1.10 "Juristic Person" means a company or close corporation and includes a body corporate, partnership, association or trust;

1.11 “Legal Notices Website” means www.eset.com/za/legal-information/;

1.12 “Purchase Date” means date that a successful sale is concluded by completing the checkout process including successful payment in full;

1.13 “Service” means the sale of products;

1.14 “Customer” or “you” means a user of any of our products or services;

1.15 “Uncontrollable Event” means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of ESET SA including the termination or suspension of a service or product provided by a third party, that may result in a delay or a failure to provide any product or service;

1.16 “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991; and

1.17 “Website” means www.eset.com.

2 Commencement, Duration, Termination and Cooling-off

2.1 The Agreement will commence on the Acceptance Date and endure for as long as you have a profile with ESET SA until it is cancelled as provided for in this Agreement.

2.2 This Agreement incorporates by reference the Website Terms and Conditions and Privacy Policy which have been made available to you on this website and which you undertake to read and understand. If you do not understand anything, please ask us to explain it to you.

2.3 ESET SA may terminate this Agreement immediately for material breach of this Agreement.

2.4 Notwithstanding the termination of the Agreement, in the event that you continue to use the products or services despite the termination of the Agreement, you will remain liable for and promptly pay on demand all amounts that would have been due to ESET SA as a result of the use of or access to the product or service and this Agreement shall be deemed to continue to apply until such time as all amounts due to ESET SA have been paid in full, and we will be entitled to terminate the agreement at any time.

2.5 If the Agreement results from any direct approach to you by ESET SA or is an electronic transaction as contemplated in the ECT Act, you will be entitled to cancel the Agreement on written notice to ESET SA without reason or penalty within 5 (five) Business Days of –

2.5.1 in the case of services only being provided in terms of the Agreement - the Purchase Date; and

2.5.2 in the case where goods are provided and constitute the subject of the Agreement, whether in conjunction with services or on its own – the date of delivery of such goods.

2.6 For purposes of clause 2.5.2 , goods include any literature, music, photograph, motion picture, game, information, data software, code or other intangible product or any license to use such intangible product.

2.7 A contract for sale of goods will only come into being on the Purchase Date.

3 Conditions of access

3.1 ESET SA will make the Service available to you on the Acceptance Date.

3.2 You must be at least 18 (eighteen) years of age to access the Services.

3.3 ESET SA will, where relevant, issue a license key in order to enable you to gain access to and/or use a service. In such instance, you will not be able to access and/or use a service without this license key.

3.4 You agree that:

3.4.1 you will use your license key for your own personal use or for the specific business for which you purchased the license only;

3.4.2 you will not disclose your license key to any other person for any reason whatsoever and that you will maintain the confidentiality thereof;

3.4.3 in the event that your license key is compromised, you will immediately notify ESET SA and request a reset of your license key;

3.4.4 you, as the holder of the license key, acknowledge you are solely responsible for all payments in respect of a service charged to your ESET SA account, irrespective of whether the service has been utilized or is being utilized by you or not and accordingly the entire amount outstanding on your ESET SA account will be deemed to have arisen from (or relate to) your access to and/or use of a service;

3.4.5 you agree to cause all persons who use any products or services under your account or with your authorization to comply with the Agreement. All acts or omissions of all persons who use services under your account or with your authorization will be treated for all purposes as your acts or omissions;

3.4.6 ESET SA also offers a license key reminder service. We will send your license key to your email address used when you purchased the product. Subscription to this service is voluntary.

3.4.7 you will not, at any time, permit and/or initiate a simultaneous network log-in; and

3.4.8 you will not attempt to circumvent ESET SA’ user authentication processes or engage in attempts to access ESET SA’ network where not expressly authorised to do so.

4 Service Delivery, Service Availability, Ownership

4.1 ESET SA will use reasonable endeavours to make its services available to you, and to maintain the availability thereof for use by you. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.

4.2 ESET SA will use its best endeavours to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but can not always guarantee this.

4.3 Goods will be delivered electronically by email to the address used when you purchased the goods.

4.4 The cost of delivery will be specified during the checkout process.

4.5 Ownership in the goods will pass on the Purchase Date. Risk will pass on delivery.

5 Communication and Dispute Resolution

5.1 You agree that ESET SA may from time to time send you communications regarding (without being limited to) special offers or discounts which ESET SA may negotiate for and offer to its Customers and/or new services or products launched (should you have opted in) and operational messages about the service from time to time. All communications will abide by our Privacy Policy and applicable law. You will always be entitled to notify us in writing that you do not wish to receive or continue to receive such communications and if you are a consumer as contemplated in the CPA, to pre-emptively block the receipt of such communications.

5.2 Any dispute between the parties may be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held in Cape Town, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.

5.3 The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.

5.4 The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.

6 Payment

6.1 Billing will commence on the Purchase Date. A valid tax invoice will be emailed to your registered email address on the Purchase Date.

6.2 Every effort is made to ensure the accuracy of pricing and product information. Instances may arise in which product(s) are priced incorrectly on the website or where the product information supplied is inaccurate. ESET SA will not be held bound by the incorrect price(s) in cases where such error(s) occur. ESET SA will not be held responsible for errors in the product information supplied, however, should a customer purchase a product that has been incorrectly priced or described, the customer may elect to cancel the sale and receive a refund. In this event, such product is to be returned for refund within 30 (thirty) days.

6.3 VAT is charged at 15%. All prices listed on ESET SA are inclusive of VAT unless otherwise stated. Goods that are exported outside of the borders of the Republic of South Africa do not carry a VAT charge.

6.4 At the time of placing the order, the transaction details are presented to the bank and an authorisation is obtained for the amount of the order. As a protection against fraud, ESET SA reserves the right to request ID documents, credit card billing statements and photocopies of any credit card used to make purchases on ESET SA Online Store. ESET SA reserves the right to cancel any orders for customers refusing to make such information available or whose information appears in any way suspicious.

6.5 We are able to reverse transactions on our payment gateway system. Such refunds will only reflect on the credit card used and no other method is allowed. Refunds will be processed within 3 working days.

6.6 Payment can be made as follows:

6.6.1 Credit Card Transactions are acquired by Checkout.com a registered systems operator and payment gateway in South Africa. Card Holders may go to www.checkout.com to view their security policy. Please note that you will be required to accept the terms and conditions for the use of the Peach Payments service to place any orders with us. If authorisation is not obtained from your acquiring bank, the order is cancelled. You warrant that you are authorised to use the credit card for payment of your order and that there are sufficient funds in this credit card account to cover the costs of any transactions you complete on ESET SA.

7 Privacy

7.1 ESET SA will deal with your personal information in accordance with the provisions of our Privacy Policy which is available on our website and in compliance with all relevant laws.

7.2 Note that at no time will any credit card information be stored by us.

8 Intellectual Property Rights

8.1 You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our services and/products.

8.2 You are prohibited from using any ESET SA Marks without the prior written approval of ESET SA.

8.3 ESET SA (or its Third Party licensors) will wholly and exclusively retain all Intellectual Property Rights related to the provision of any of the services or products in terms of these terms and conditions.

9 Warranty and Returns

9.1 Please note that this will not apply to any products that are damaged due to misuse or that have been tampered with contrary to any manufacturer’s instructions or other void conditions.

9.2 In the first six months after the delivery date, should the goods not be suitable for the purpose for which they were generally intended or should something go wrong with the goods purchased, the Customer will have the rights and remedies set out in the Consumer Protection Act available to them. Please note, this is not a return because you no longer want the goods.

9.3 Unless it is determined that the warranty is void, any goods returned will be at ESET SA’s risk and expense.

9.4 Faulty goods will be replaced at your option.

9.5 You may return any non-defective goods within 30 (thirty) of delivery. All goods must be unused, complete. We will validate the return and refund you if everything is in order within 14 (fourteen days).

10 Breach

10.1 Subject to any other provisions set out in these terms and conditions, should you be in breach of any provision of this Agreement, then ESET SA shall be entitled, without prejudice to any other rights that it may have and to the extent required or permitted, as the case may be, by law, to forthwith:

10.1.1 afford you a reasonable opportunity to remedy the breach, taking into account the nature of the breach in question; or

10.1.2 suspend your access to the Service; or

10.1.3 cancel all agreements concluded between us.

11 Indemnity

11.1 You hereby unconditionally and irrevocably indemnify ESET SA and agree to indemnify and hold ESET SA harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by ESET SA as a result of any claim instituted against ESET SA by a third party (other than you) as a result of (without limitation):

11.1.1 your use of our Services other than as allowed or prescribed in the Agreement;

11.1.2 any other cause whatsoever relating to the Agreement or the provision of Services to you where you have acted wrongfully or failed to act when you had a duty to so act.

12 No representations, warranties or guarantees and Limitation of liability

12.1 Save to the extent otherwise provided for in this Agreement or where you are entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, we do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality or security of any product or service.

12.2 Without limiting the generality of the provisions of clause 12.2 , ESET SA shall not be liable for and you will have no claim of whatsoever nature against ESET SA as a result of

12.2.1 the loss of or access to any usernames and passwords which you are required to safeguard and not allow unauthorized access on the understanding that we will be entitled to assume that you are the person so using or gaining access to any service or account where your username and password is used;

12.2.2 any unavailability of, or interruption in the Service due to an Uncontrolled Event;

12.2.3 any damage, loss, cost or claim which you may suffer or incur arising from any suspension or termination of the service/s for any reason contemplated in the Agreement.

12.3 In addition to and without prejudice to any other limitations of liability provided for in the Agreement and 00 to the fullest extent permitted by applicable law, ESET SA shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that ESET SA is liable to you for any damages, ESET SA’ liability to you for any damages howsoever arising shall be limited to the amounts paid by you under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.

13 Cession and Delegation

You may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of this Agreement without the prior written approval of ESET SA. ESET SA shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without your consent and without notice to you provided that you are not unduly prejudiced as a result. “Affiliates” for this purpose includes ESET SA’ holding company, the holding company(ies) of ESET SA’ holding company (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by ESET SA or are under common control with ESET SA.

14 Jurisdiction

You hereby consent to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by ESET SA arising out of this Agreement, provided that ESET SA shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 5 above.

15 Amendment of this agreement

ESET SA reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our website on a regular basis in order to determine whether any amendments have been made.

16 General

16.1 The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No variation or addition of this Agreement or the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties.

16.2 ESET SA is in terms of section 43 of the ECT Act required to make its contact details, its domicilia citandi et executandi and certain other information available to its Customers who enter into electronic transactions with ESET SA. This information is available at https://www.eset.com/za/policy-hub/ect-act-disclosures/

16.3 You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.

16.4 No indulgence, leniency or extension of time which ESET SA may grant or show to you shall in any way prejudice ESET SA or preclude ESET SA from exercising any of its rights in the future.

16.5 You warrant that as at the date of acceptance all the details furnished by you to ESET SA are true and correct and that you will notify ESET SA in the event of any change to such details.

16.6 All our terms and conditions can be accessed, stored, and reproduced electronically by you.