Preferental provides the Services on an “as is” and “as available” basis, without warranty of any kind, express or implied. Preferental disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Limitation of Liability:
To the fullest extent permitted by law, in no event will Preferental, its affiliates, officers, directors, employees, agents, suppliers, or licensors be liable for any indirect, consequential, exemplary, incidental, special, or punitive damages.
1.1. ” Administrative Fees” means the amounts payable to Preferental in accordance with the Administrative Fee Schedule as updated or changed from time to time and available for inspection at www.preferental.com .
1.2. ” Application” means collectively any application for mobile, tablet and other smart or feature devices and application program interfaces through which Preferental makes the Services available.
1.3. ” Collection Charges” means the Administrative Fees, Tracing Fees, Legal Fees and interest on the Outstanding Amounts, or any similar charges incurred in attempting to collect the Outstanding Amounts as specified in a Lease Agreement.
1.4. ” Consumer Protection Act” means the Consumer Protection Act 68 of 2008, as amended.
1.5. ” Deposit” means the rental deposit or security deposit payable by the Tenant in terms of a Lease
Agreement as security for the repair and restoration of the Property or for any other purpose as determined in the Lease Agreement.
1.6. ” Landlord” means any natural or juristic person or persons who have accepted and agreed to these Terms and Conditions of Service and who own a Property which is rented or leased to an individual or business for purposes of providing residential accommodation.
1.7. ” Lease Agreement” means any agreement for the rental or lease of a Property entered into between a Tenant and a Landlord using the Application (” Preferental Lease Agreement”), or any other agreement for the lease or rental of a Property entered into between a Tenant and a Landlord in respect of which the Landlord has authorised Preferental to act as its agent and has subscribed to one or more of the Services and Preferental has accepted the lease agreement
(“Private Lease Agreement “).
1.8. ” Legal Fees” means legal fees and disbursements on the attorney-and-client scale.
1.9. ” Preferental” means Rentr (Pty) Ltd (registration number: 2016/241956/07), a private company duly incorporated and registered in accordance with the laws applicable in the Republic of South Africa, and the owner of the Site and Application and provider of the Services.
1.10. ” National Credit Act” means the National Credit Act 34 of 2005, as amended.
1.11. ” Personal Information” means and includes your IP address, cookie information, page logs, name, surname, identity number, passport number, date of birth, nationality, citizenship, signature, email address, mobile phone number, physical address, bank account details, employment status, occupation, period of employment, gross monthly salary, date of payment of your salary, employers name, employment address, employers contact number, employers email address, current monthly expenses, credit history, renting history, marital status, spouses name, spouses surname, spouses identity number, spouses mobile phone number, previous landlord’s contact number, previous landlord’s email address and any additional information which may be required from time to time in order for Preferental to provide the Services or as required for purposes of fulfilling any of the terms of these Terms and Conditions of Service or for any purpose required by law.
1.12. ” Property” means a house, apartment, flat, townhouse, land or other residential immovable property which is owned by a Landlord and rented or leased to a Tenant.
1.13. ” Property Charges” means rates and taxes, electricity, water, levies and any other fees or charges that may be imposed by a municipality, local authority, property developer, or body corporate of a sectional title scheme for the use of a Property.
1.14. ” Protection of Personal Information Act” means the Protection of Personal Information Act 4 of
2013, as amended.
1.15. ” Rental” means the consideration sounding in money payable monthly by a Tenant for the exclusive use and enjoyment of a Property, as contemplated in the Lease Agreement.
1.16. ” Rental Housing Act” means the Rental Housing Act 50 of 1999, as amended.
1.17. ” Site” means preferental.com and any other websites through which Preferental makes the Services available.
1.18. ” Services” means an online platform that connects the Landlord and Tenants and assists them in the management of a Property and their obligations towards each other. The Services include Virtual Inspections, Preferental Promise, a marketplace for the conclusion and processing of Lease Agreements between the Landlord and Tenant, and may include the provision of access to third-party services such as legal services, insurance or property maintenance services, which are accessed on the Site or Application and may be extended and improved upon from time to time.
1.19. ” Service Charges” means the fees and charges, whether fixed or relative, which Preferental charges a Landlord or a Tenant for the Services from time to time, and which are specified under clause 9 of these Terms and Conditions of Service.
1.20. ” Tracing Fees” means fees incurred by Preferental and its agents or any legal practitioner appointed by Preferental in attempting to trace a Tenant or Landlord.
1.21. ” Tenant” means any natural or juristic person or persons who have accepted and agreed to these Terms and Conditions of Service, and who have been screened and approved by Preferental, and to whom a Landlord may grant temporary and exclusive use and enjoyment of land or a part of a building for the purposes of providing residential accommodation in exchange for rental.
2.1. To access certain features of the Site and Application and to subscribe to the Services, you must register and create an account as a Landlord or Tenant (” Preferental Account “, which may be referred to as a ” Preferental Landlord Account” or ” Preferental Tenant Account” as the context may specifically require).
2.2. The terms of this clause 2 (including sub-clauses) apply to both Preferental Landlord and Tenant Accounts unless otherwise provided within a particular sub-clause.
2.3. Your Preferental Account will be created for your use of the Site and Application based upon the Personal Information you provide to us. Your account may provide you with access to different Services, provide you with different rights, or require you to comply with different obligations depending on whether you have registered as a Landlord or a Tenant.
2.4. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. If any of your Personal Information changes, you are obliged to notify Preferental of the changes for us to effect the changes on your Preferental Account.
2.5. You may not create a Preferental Account for any person other than yourself, and you may not transfer your Preferental Account to any other person
2.6. Unless expressly authorised by a specific feature on the Site or Application, you are not permitted to share your Preferental Account with anyone or allow others to access or use your Preferental Account. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party.
2.7. You agree that you will take sole responsibility for any activities or actions under your Preferental Account, whether you have authorised such activities or actions or not. You will immediately notify Preferental of any unauthorised use of your Preferental Account.
2.8. You may not have more than one active Preferental Tenant Account and one active Preferental Landlord Account at a time. We reserve the right to suspend or terminate your Preferental Account and your access to the Site, Application and Services if you create more than one Preferental Tenant and/or Landlord Account, or if any information provided by you proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of these Terms and Conditions of Service.
2.9. The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
2.10. If we suspend or terminate your Preferental Account for any reason whatsoever arising from our rights in these Terms and Conditions of Service, you agree that you will not create a new account.
3. SUBSCRIPTION OF SERVICES
3.1. You are required to access and subscribe to the Service which we may make available for you by requesting the Service for a Property that is linked to your Preferental Account from within the Site or Application.
3.2. If you create a Preferental Landlord Account, then you will be required to load your Property on the Application or Site and provide Preferental with information about your Property. The Property which you have loaded onto the Application or Site will be linked to your Preferental Account and available for you when signing in as a Landlord. By loading a Property on your Account, you warrant that you are the lawful owner of the Property and that you are lawfully entitled to rent the Property to a current or prospective Tenant.
3.3. To gain access to the Services available for a Property, the Landlord must invite a Tenant to use the Preferental Services by sending an invitation code to the Tenant on the Site or Application.
3.4. As a Tenant, you are required to create a Preferental Account and link a Property to your Preferental Account by providing the invitation code supplied by the Landlord of the Property. The Property will be loaded onto the Application or Site and linked to your Preferental Account if the invitation code corresponds with that supplied by Preferental to the Landlord. You agree that you will not share your invitation code with any other person, and you will only use the code to access the Property if you are lawfully entitled to rent the Property from the Landlord in terms of these Terms and Conditions of Service or any applicable law.
3.5. You may subscribe to any Services available for your Property provided that both the Landlord and the Tenant have created Preferental Accounts and have accepted these Terms and Conditions of Service, and we have made the Services available to you.
3.6. Preferental does not guarantee the availability of all Services. To access some of the Services, you may be required to subscribe to another Service first, or your Landlord or Tenant (as the case may be) may be required to subscribe to a particular Service first.
3.7. Some Services may only be available to you if you pay a Service Charge. If you fail to pay a Service Charge as required then we may suspend or cancel your subscription to a Service.
3.8. We may limit the Services offered to any Landlord or Tenant:
3.8.1. if you fail to comply with these Terms and Conditions of Service, or
3.8.2. in accordance with our rights under these Terms and Conditions of Service, or
3.8.3. following a background screening process undertaken by us which results in an unfavourable outcome for you, whether the screening process is stipulated in these Terms and Conditions of Service or not.
4. BACKGROUND SCREENING AND RISK ANALYSIS
4.1. In the interests of safety and transparency, Preferental may investigate and validate the risk profile of any Tenant or Landlord or potential Tenant who registers a Preferental Account (“General Screening “).
4.2. We may, for transparency or fraud prevention or detection purposes, or for the purposes of screening and validating your risk profile, directly or through third parties use your existing Personal Information or request additional Personal Information from you, or undertake additional checks and processes designed to help verify or check your Personal Information against third party databases or other sources. We will not make any representations about, confirm, or endorse your identity or background to any third party unless required to do so under applicable law.
4.3. You agree that your use or access to the Services or your Preferental Account may be limited upon completion of the screening process and validation of your risk profile.
Tenant Screening for Preferental Promise
4.4. If you are a Tenant or potential Tenant and you enter into a Lease Agreement with a Landlord who makes use of, applies to make use of, or subscribes to the Preferental Promise Service, then you may be subjected to an additional screening and validation process to determine your credit score and ability to honour the Lease Agreement (“Tenant Screening “).
4.5. Upon registration of a Preferental Tenant Account, we may directly, or indirectly with a third-party or agent, submit your Personal Information to a registered credit provider or credit bureau within the Republic of South Africa to obtain a Tenant Assessment Report.
4.6. Once we have screened your information and validated your risk profile based on the Tenant Assessment Report, you will be allocated a total credit score which we may compare against a minimum benchmark set by us from time to time to determine whether we are able to offer the Preferental Promise Service to a Landlord (or prospective Landlord who may opt to enter into a Lease Agreement with you). If we can offer the Preferental Promise Service to the Landlord, then your credit score may be used to determine the amount which you will be required to pay as a Deposit. We may, on a confidential basis and in compliance with the law, provide details of your credit score to your Landlord or to prospective Landlords to determine whether they are happy to enter into a Lease Agreement with you. We will not reveal your name or identifying information about you unless required to do so by law.
Consent by Tenant or Prospective Tenant for Third-Party to Perform Credit Check
4.7. By registering a Preferental Tenant Account, you grant consent and authorise Preferental to authorise our agents or third-party providers to:
4.7.1. Obtain your Personal Information from any credit provider or registered credit bureau, which information may be relevant to an assessment of your behaviour, profile, payment patterns, indebtedness, whereabouts, creditworthiness and tenancy behaviour, to use this information to compile the Tenant Assessment Report and/or to evaluate your eligibility for other products and services offered by Preferental or the third-party agent or provider;
4.7.2. Make any reasonable enquiries to verify and research any details provided by you to Preferental in your application to enter into a Lease Agreement;
4.7.3. Access the files of any credit bureau to ascertain your credit profile when assessing this application and at any time during the currency of the Lease Agreement managed by Preferental; and
4.7.4. Furnish the Tenant Assessment Report, including without limitation, information concerning my behaviour, profile, payment patterns, indebtedness, whereabouts and creditworthiness to Preferental , any registered credit bureau, credit provider or any prospective lessor seeking reference regarding your dealings with Preferental.
4.8. You understand that this authorisation and consent will remain in force and effect unless revoked.
The appeal of Credit Score Findings
4.9. If you are unhappy with any aspect of the method of assessment used by a third-party agent of Preferental or if you are unhappy with the credit score awarded to you, then you may request a copy of your Tenant Assessment Report from us and contact the credit ratings agency or credit bureau appointed by us or our agents to appeal the findings.
Information we may Obtain
Withdrawal of Consent or Objection to Screening and Risk Validation
4.11. The General Screening and Tenant Screening is a condition of your use of the Site, Application and Services. If you do not agree to any term of this clause 4 (Background Screening and Risk Analysis) then your only recourse is to cease using the Services and you will be obliged to terminate your Preferental account immediately.
Limitations of Liability
4.12. Preferental is not responsible for the method of assessment used or the credit score awarded to you as a result of a General or Tenant Screening. We do not warrant the accuracy of any information provided to us by a Tenant, Landlord or third party which may be used in or derived from a General or Tenant Screening. We will not be liable for any losses or damage caused to you as a result of an unfavourable finding.
5. VIRTUAL INSPECTIONS
5.1. We offer an online Service which enables the remote inspection of a Property for purposes of monitoring the satisfactory use of the Property by a Tenant. The inspection is carried out by means of uploading and transmitting photographic evidence or other information or evidence as may be required by the Landlord or Preferental through the Application or Site (“Virtual Inspection “).
5.2. A Landlord may request a Virtual Inspection from any Tenant where a Property has been linked to both the Landlord and Tenant’s Preferental Accounts and the Landlord and Tenant have subscribed to the Service.
5.3. You are required to ensure that all photographs and information submitted by way of a Virtual Inspection accurately and clearly depict the state, condition, and structure of a room, fixture, fitting or other object which may be required by the Landlord to understand the state, condition, and structure of the Property as if the Landlord had visited the Property in person.
5.4. Each Virtual Inspection submission will be rated by the Landlord based on punctuality of the submission, clarity of the photographs and information, and completeness of the submission. The aggregate rating of each Virtual Inspection may be recorded on your Preferental Account and supplied to prospective Landlords on the Application or Site, and will be recorded for purposes of determining the Tenant Reward (where applicable in terms of clause 8 (Tenant Reward).
5.5. The use of a Virtual Inspection will in no way limit a Landlords right to personally inspect the Property as required or permitted by:
5.5.1. law, or
5.5.2. a lease agreement (which shall be interpreted according to its ordinary definition and not that of clause 1.7 these Terms and Conditions of Service), or
5.5.3. these Terms and Conditions of Service.
6. PREFERENTAL PROMISE
6.1. Preferental offers an online platform in which we provide a guarantee for the payment of Rental to the Landlord on the first day of every month for up to four months. The guarantee includes the institution of eviction proceedings against a defaulting tenant, cover for Legal Fees incurred in eviction and debt collection proceedings, and cover for property damage up to the value of one months’ Rental. (“Preferental Promise”). By subscribing to the Preferental Promise, the Landlord appoints Preferental as its agent for the collection of Rental, Deposit, Property Charges and Collection Charges from the Tenant.
6.2. We agree to accept your subscription to the Preferental Promise service and to pay the benefits of the Preferental Promise to you, provided you accept all the criteria stipulated in these Terms and Conditions of Service.
6.3. For the purposes of this clause 6 (Preferental Promise), including sub-clauses, “you” and “your” refer to a Landlord only.
Mandate and Appointment as Agent
6.4. Upon subscription of the Preferental Promise service, you mandate and appoint us, as your exclusive agent for the collection of Rental, Deposit, Property Charges and Collection Charges in respect of any Property and corresponding Lease Agreement entered into between you and a Tenant. You mandate us as your agent to provide all the services specified under this clause 6 (Preferental Promise) and clause 7 (Rental, Deposit, Collection Charges & Property Charges), including sub- clauses, for each Property to which you have subscribed for the Preferental Promise service. If you have more than one Property which is subject to the Preferental Promise then this Mandate will apply to each Property and its corresponding Lease Agreement individually. (” Mandate”).
6.5. The Mandate will be effective from the date of subscription to the Preferental Promise service. The Mandate will terminate on the date of expiry of the Lease Agreement or the date on which all the obligations of all parties to the Lease Agreement have been fulfilled, whichever occurs later.
Collection of Rental and Related Charges
6.6. We will collect the monthly Rental and Property Charges and ad hoc Collection Charges which are due to you in terms of the Lease Agreement directly from the Tenant in accordance with the provisions of clause 7 (Rental, Deposit, Collection Charges & Property Charges) of these Terms and Conditions of Service.
6.7. You will only receive the benefits of Preferental Promise once we receive payment of:
6.7.1. the Deposit required in terms of clause 7.5 (dealing with calculation and payment of the deposit), and
6.7.2. the 1 st (first) month’s Rental due by the Tenant.
6.8. We will pay the 1 st (first) month’s Rental to you within 5 (five) business days after receiving payment from the Tenant. Thereafter, we will pay the Rental to you on the 1 st (first) working day of each successive month, irrespective of whether the Tenant has paid the rental to us or not. The Rental payable to you will be reduced by any deductions which we are permitted to make under these Terms and Conditions of Service.
6.9. The Property Charges which we collect will be determined in accordance with the terms of your Lease Agreement. Only those charges which are specified in your Lease Agreement and are part of the obligations of the Tenant will be collected from the Tenant.
6.10. We will pay the Property Charges to you together with your Rental payment 1 (one) month in arrears after we have received the payment from the Tenant. We will not be liable to pay any Property Charges which we have not received from the Tenant, and you acknowledge that Property Charges are excluded from the Preferental Promise.
6.11. It is your duty to ensure that the Property Charges are paid to the respective municipality, local authority, developer, or body corporate as they fall due and you indemnify us against any losses or damage caused to the Tenant as a result of your failure to settle the Property Charges on time or at all. You will remain liable for the payment of Property Charges irrespective of whether we have collected them from the Tenant or not.
Cession of Rights to Collection Charges
6.12. By subscribing to the Preferental Promise service, you cede and assign to us all rights to any Collection Charges which may be due to you in terms of the Lease Agreement. You agree that we may determine the Collection Charges in our exclusive discretion, and may impose Collection Charges on the Tenant for defaulting on any payments.
6.13. You authorise and provide us with full powers as your agent to retain the Deposit and apply the Deposit in accordance with clauses 7.9 (investment of the Deposit) and 7.10 (repayment of the Deposit). You agree that these powers are irrevocable and material for the provision of the Preferental Promise. If you revoke our power to apply the Deposit in accordance with these Terms and Conditions of Service we may suspend or cancel your subscription to the Preferental Promise service and terminate the Mandate.
Legal Action and Eviction
6.14. You authorise and instruct us to institute and conduct legal action whether in our own right or on your behalf against any Tenant who is in breach of the Lease Agreement, provided that the course of Legal Action complies with any terms of the Lease Agreement regulating the procedure to be followed in the event of breach.
6.15. Notwithstanding anything to the contrary in clause 6.14, you authorise and instruct us immediately, and without notice to you, to terminate a Lease Agreement and to institute and conduct eviction proceedings on your behalf against a Tenant who has defaulted on the Rental.
6.16. Preferental will be liable for Legal Fees incurred in respect of any eviction or debt recovery proceedings instituted against the Tenant which are brought in terms of the Lease Agreement or these Terms and Conditions of Use, provided that:
6.16.1. The legal proceedings are instituted on our instructions, irrespective of whether the Landlord or Preferental is dominus litis or appear as a party to the proceedings, and
6.16.2. The legal proceedings are carried out by a legal practitioner approved and appointed by us for the institution of legal proceedings.
Payment of Service Charges and other Amounts
6.17. You agree that we may deduct the Service Charges from the Rental which we pay to you. The Service Charges include the fees as set out in clauses 9.2.1 (fixed percentage of the Rental) and may include fees as set out in 9.2.2 (a monthly Administrative Fee).
6.18. Where a Tenant pays an amount into your bank account, you are obliged to pay the amounts over to us within 1 (one) working day. Failing this, we will recover the amounts from you in terms of
the provisions of clause 6.19 (dealing with the recovery of amounts due to Preferental by a Landlord).
6.19. If any amounts are due and payable by you to us, then you authorise us, without any notice to you, to
6.19.1. Set-off the amount payable to us against any amount which we are required to pay to you, or
6.19.2. Require you to make payment to us or recover any amount due to us by any one of the payment methods available under clause 10 (Payment).
Cancellation of the Preferental Promise
6.20. You may cancel this Preferental Promise and terminate the Mandate at any time by providing us with 30 (thirty) days’ notice. If you cancel the Preferental Promise and terminate the Mandate, then we will remove the Service from your Preferental Account.
6.21. You may only subscribe to and use the Preferental Promise Service if your Tenant or prospective Tenant has created a Preferental Account and agrees to every term of these Terms and Conditions of Service. If the Tenant does not agree to the use of the Preferental Site or Application, or to these Terms and Conditions of Service, or revokes any consent required by these Terms and Conditions of Service, or repudiates their agreement with Preferental as contained in these Terms and Conditions of Service, then we will be entitled, in our sole discretion, to immediately cancel your subscription to the Preferental Promise Service.
6.22. Subject only to the provisions of these Terms and Conditions of Service, we reserve the right to accept, reject or accept subject to conditions, any instructions from you as principle within our exclusive discretion. We reserve the right to reject or accept subject to conditions your subscription as Landlord to the Preferental Promise service.
6.23. We may, within our sole discretion, decline to offer the Preferental Promise in respect of a Private Lease Agreement if we are not satisfied with the terms of the Private Lease Agreement. You may enter into a Preferental Lease Agreement to replace and vary your Private Lease Agreement for the remaining period of the lease provided that the Tenant also agrees to enter into the Preferental Lease Agreement.
6.24. The Preferental Promise is only available to residential immovable properties situated within the Republic of South Africa where both the Tenant and Landlord are South African citizens or juristic persons.
6.25. We will not pay any benefits of the Preferental Promise relating, directly or indirectly, to:
6.25.1. Any Rental arrears that arose prior to the subscription and commencement of the Preferental Promise or after the termination of the Preferental Promise;
6.25.2. Vacancy as a result of the expiry of a Lease Agreement;
6.25.3. Loss of rental where a Tenant cannot take vacant occupation of a Property because of renovations being performed, the property not being in a good repair or lettable conditions, or any reason that has the effect of making it impossible to offer a prospective tenant immediate occupation (in the opinion of Preferental).
6.26. The Preferental Promise does not guarantee any loss of Rental, damage or liability directly or indirectly caused by or related to:
6.26.1. Loss due to destruction or damage to the Property by fire, explosions, lightning, earthquake, storm, wind, water, hail, snow or caused by tidal wave originating from earthquake or volcanic eruption;
6.26.2. Aircraft or other aerial devices or articles dropped therefrom;
6.26.3. Impact by animals, trees, aerials, satellite dishes or vehicles;
6.26.4. Civil disobedience, labour disturbances, riot, strike, lock-out or public disorder or any activity which is calculated or directed to bring out these situations;
6.26.5. War, invasion, act of foreign enemy, hostilities, or warlike operations (whether declared or not) or civil war;
6.26.6. Any act which is calculated or directed to bring about loss or damage to further any political aim, objective or cause, or to bring about any social or economic change or protest any State or Government or any provincial, local, or tribal authority or for the purposes of inspiring fear in the public or any section thereof;
6.26.7. Ionising radiations or contamination by radio-activity from any nuclear fuel or from nuclear waste from the combustion of nuclear fuel, or from nuclear weapons or material. For the purpose of this exception only, combustion shall include any self- destructing process of nuclear fission.
6.27. We will not be liable to pay any Rental to you while there is a valid legal dispute between you and the Tenant or where the Tenant has applied for a Court Order to stop us from paying any amounts to you. For the purposes of this clause, a ” valid legal dispute” means a material breach by the Landlord in terms of the Lease Agreement where the breach has been referred to a legal practitioner, adjudicator or mediator for resolution, and where the material breach may support the non-payment of rental by the Tenant to the Landlord.
6.28. You are required to honour your obligations under the Lease Agreement and these Terms and Conditions of Service. If the Tenant vacates the Property because of your failure to adhere to any of your duties and obligations in terms of the Lease Agreement or these Terms and Conditions of Service then we may cancel this Mandate and your subscription to the Preferental Promise service and you will be liable to us and the Tenant for any consequential losses suffered.
Unlawful Actions and Spoliation
6.29. You may not act in any manner or take any action outside of those actions lawfully permitted under the Lease Agreement or in law. If you take any action which may be in violation of the law, including (but not limited to) the spoliation of the Tenant’s right of use and enjoyment of the Property, then we may, in our absolute discretion and without any notice to you:
6.29.1. Cancel this Mandate and your subscription to the Preferental Promise service, and
6.29.2. Hold you liable to us and the Tenant for any damage or losses suffered; and
6.29.3. Withhold any payment which is due to you under these Terms and Conditions of Service and utilise the amount withheld to satisfy the losses or damages sustained by us or the Tenant.
6.30. Where a defaulting Tenant vacates the Property, and the Property requires repairs to be put in a lettable condition, you will be obliged to restore the Property to a lettable condition.
7. RENTAL, DEPOSIT, COLLECTION CHARGES & PROPERTY CHARGES
7.1. The terms of this clause 7 (Rental, Deposit, Collection Charges & Property Charges), including sub-clauses, and any conditions imposed are only applicable to Tenants and Landlord’s where the Lease Agreement is covered by a Preferental Promise in terms of clause 6 (“Preferental Promise”).
7.2. The words “you” and “your” may refer to both the Tenant and Landlord or each of them individually (as the case may be) depending on the context of each sub-clause.
Variation of Lease Agreement
7.3. AS TENANT AND LANDLORD, YOU BOTH AGREE THAT THE TERMS OF CLAUSE 7 (Rental, Deposit, Collection Charges & Property Charges), INCLUDING SUB-CLAUSES, CONSTITUTE A BINDING VARIATION OF YOUR LEASE AGREEMENT. IN THE EVENT OF ANY CONFLICT, YOU AGREE THAT YOUR LEASE AGREEMENT WILL BE READ AND INTERPRETED TO GIVE PRECEDENCE TO THE TERMS OF THESE TERMS AND CONDITIONS OF SERVICE.
Non-substitution of Owner
7.4. You acknowledge and agree that we act as the agent for the Landlord for the collection and payment of the Rental and Property Charges under the Preferental Promise. We have exclusive rights to determine the amounts payable and terms applicable to the payment of the Deposit and Collection Charges for as long as the Landlord has subscribed to the Preferental Promise. The Landlord remains the owner of the Property, and the obligations and responsibilities of the Landlord, other than those relating to the collection of money and payment, will be determined by the Lease Agreement and applicable law.
Payment of Deposit
7.5. You are required to make payment of a Deposit directly to Preferental prior to the occupation of the Property. The Deposit will be retained as security for the costs and charges as set out in these Terms and Conditions of Service. The total amount payable as a Deposit will be determined by Preferental based on the Tenant’s risk profile following the completion of the Tenant Screening. Preferental will, upon conclusion of the Tenant Screening, notify the Landlord and the Tenant of the total amount payable as a Deposit.
7.6. If you have entered into a Preferental Lease Agreement, or if you have entered into a Private Lease Agreement and the Tenant has not paid any Deposit to the Landlord before the date on which the Preferental Promise becomes effective, then:
7.6.1. the Tenant agrees to pay the Deposit as contemplated in clause 7.5 directly to us within 48 (forty-eight) hours of signing the Lease Agreement, and
7.6.2. Both the Tenant and Landlord agree that the Deposit will be retained by us for the duration of the Lease Agreement or until the Landlord terminates the Preferental Promise, subject to clauses 7.9 and 7.10 (investment of deposit and repayment upon termination).
7.7. If you have entered into a Private Lease Agreement and the Tenant has paid a deposit to the Landlord before the date on which the Preferental Promise becomes effective, and the deposit is equal to or more than the Deposit required by Preferental as contemplated in clause 7.5, then:
7.7.1. the Landlord agrees to pay directly to us the total amount of the Deposit as contemplated in clause 7.5 within 48 (forty-eight) hours of the date on which your Preferental Promise becomes effective, subject to clauses 7.9 and 7.10 (investment of deposit and repayment upon termination), and
7.7.2. the Landlord agrees to pay to the Tenant the balance of the Deposit, including all interest earned on the deposit from the date of receipt of the Deposit up to the date on which your Preferental Promise becomes effective.
7.8. If you have entered into a Lease Agreement and the Tenant has paid a deposit to the Landlord before the date on which the Preferental Promise becomes effective, and the deposit is less than the Deposit required by Preferental as contemplated in clause 7.5, then:
7.8.1. The Landlord agrees to pay directly to us the entire Deposit held, including any interest earned on the amount, and
7.8.2. the Tenant agrees to pay directly to us an amount such that the entire Deposit held by us will be equal to the entire value of the Deposit as contemplated in clause 7.5, and
7.8.3. the Tenant and Landlord agree to pay the respective amounts referred to in clauses 7.8.1 and 7.8.2 within 48 (forty-eight) hours of the date on which the Preferental Promise becomes effective, subject to clauses 7.9 and 7.10 (investment of deposit and repayment upon termination).
Management of Deposit
7.9. We will invest the Deposit in an interest-bearing account with a financial institution of our choice for the duration of the Lease Period, provided that the interest rate will not be less than the rate applicable to a savings account with that financial institution.
7.10. We will repay the balance of the Deposit, including any interest accrued:
7.10.1.To the tenant upon the expiration of the lease, the landlord may apply the tenant’s deposit and accrued interest towards the payment of all amounts for which the tenant is liable under the lease. This includes outstanding Rental, Property Charges, Collection Charges, the reasonable cost of repairing damage caused by the Tenant to the property during the lease period, the reasonable cost of restoring the property to the condition it was in prior to the tenancy (save for fair wear and tear), and the reasonable cost of replacing lost or damaged keys, access cards, or remotes (“Restoration Costs”). The balance of the deposit and interest, if any, will then be refunded to the tenant no later than 14 days after the property has been restored. Should there be no outstanding amounts due to the landlord, or should there be no disputes from the tenant, the deposit, along with the accrued interest, will be refunded to the tenant, without any deductions or set-off, within seven days of the lease’s expiration. If the tenant fails to respond to the landlord’s request for an inspection, the landlord shall inspect the property within seven days of lease expiration to assess any damages or losses. In this case, the balance of the deposit and interest, after deducting the reasonable costs for repairs and replacements, will be refunded to the tenant within 21 days of the lease expiration (should there be no disputes from the tenant). All relevant receipts indicating costs incurred by the landlord, as applicable, must be made available to Preferental, who will share this with the tenant for inspection as proof of such expenses or
7.10.2. to the Landlord upon cancellation or termination of the Preferental Promise, whichever occurs earlier.
7.11. The Tenant and the Landlord will inspect the Property together before the Tenant takes occupation to determine whether there is any existing damage or defects to the Property. The Tenant, by way of this inspection, acknowledges that the Property is fit for beneficial occupation.
(“Entry Inspection “)
7.12. The Tenant may, in its sole discretion, elect to hold a Virtual Inspection without the Landlord in lieu of an Entry Inspection. A Virtual Inspection in such a case must materially comply with the duties, obligations, and time periods, as set out under clauses 7.11 to 7.16 (dealing with Entry Inspections) and sub-clauses.
7.13. If the Entry Inspection is conducted in person, any damage and/or defect must be recorded by use of the Virtual Inspection Service. The submission of the Virtual Inspection, which will be recorded and signed digitally by the Landlord and the Tenant, will be attached as a schedule to the Lease Agreement held by Preferental to be used in consideration of any Reimbursement Claim.
7.14. Recording of the defect or damage by way of the Virtual Inspection does not presuppose that the Landlord has or will take action to have the defect or damage remedied. This recording is simply an acknowledgement that the defect or damage exists and that the Tenant did not cause the defect or damage.
7.15. If the Tenant discovers any damage or defect at the Property after the Entry Inspection is complete, then the Tenant must notify the Landlord of such damage or defects within 7 (seven) days of the discovery by submitting a Virtual Inspection of the Property.
7.16. The Landlord may inspect the Property in person to confirm the damage upon provision of reasonable notice to the Tenant, and following which he may object to the submission by contacting Preferental. If the Landlord fails to inspect the Property or object to the submission, then the Virtual Inspection submission will be deemed to be conclusive proof of the existence of the defects or damage.
7.17. If you are a Landlord and have entered into a Preferental Lease Agreement or a Private Lease Agreement, then you agree to the following terms:
7.17.1. You will arrange a joint inspection of the Property with the Tenant at a mutually convenient time to take place within 3 (three) days of the expiration of the Lease Agreement. If the Tenant fails to respond to a request for a joint inspection, then you must inspect the Property within 7 (seven) days after the expiration of the Lease Agreement without the Tenant (” Exit Inspection”).
7.17.2. You will inspect the property during the Exit Inspection to determine if there has been any damage caused to the Property during the Tenant’s occupation and if any keys, access cards, or remotes have been lost.
7.17.3. Any damage and/or defect discovered during the Exit Inspection must be noted and recorded by use of the Virtual Inspection Service. The submission of the Virtual Inspection, which will be recorded and signed digitally by the Landlord and the Tenant, will be attached as a schedule to the Lease Agreement held by Preferental to be used in consideration of any Reimbursement Claim.
7.17.4. You may propose, in your sole discretion, to hold a Virtual Inspection only in lieu of the Exit Inspection. A Virtual Inspection in such a case must materially comply with the duties, obligations, and time periods, as set out under clause 7.17 (dealing with Exit Inspections) and sub-clauses.
7.17.5. IF YOU OPT TO CONDUCT THE EXIT INSPECTION BY WAY OF A VIRTUAL INSPECTION ONLY, THEN YOU ACKNOWLEDGE THAT THIS MAY CONSTITUTE A WAIVER OF OR NON-COMPLIANCE WITH YOUR RIGHTS AND OBLIGATIONS UNDER THE RENTAL HOUSING ACT. YOU MAY NOT HOLD THE TENANT OR Preferental LIABLE FOR ANY DAMAGE OR LOSSES DISCOVERED AFTER THE CONCLUSION OF THE VIRTUAL INSPECTION OR FOR DAMAGE OR LOSSES WHICH WERE OTHERWISE NOT APPARENT FROM THE VIRTUAL INSPECTION, IRRESPECTIVE OF WHETHER THE
TENANT OR Preferental WAS AT FAULT REGARDING YOUR INABILITY TO ASCERTAIN THE ACCURATE OR TRUE STATE OR CONDITION OF THE PROPERTY
7.17.6. If, after the completion of the Exit Inspection or Virtual Inspection in lieu of the Exit Inspection, the Property is not in a satisfactory condition, then you are required to notify us of the defects and immediately undertake the restoration of the Property at your own expense. You may thereafter submit a claim to us for reimbursement of the Restoration Costs, which must include the quotations and invoices of any contractors or persons hired to undertake the repair and restoration of the Property. (“Reimbursement Claim”)
7.17.7. We will consider the submissions of both the Entry and Exit Inspections and the schedule of existing damage to the Lease Agreement and may contact the Tenant to determine the fairness and reasonableness of your Reimbursement Claim and to ascertain whether the damage in respect of your Restoration Claim had occurred during the Tenant’s occupation of the Property.
7.17.8. We will, upon approval of the Reimbursement Claim, reimburse you for the Restoration Costs up to a maximum amount equal to two months’ Rental.
7.17.9. If you fail to provide us with a Reimbursement Claim within 7 (seven) days of the Exit Inspection, or if you fail to hold an Exit Inspection at all, then
184.108.40.206. we will immediately, upon expiry of the 7 (seven) day period, or within 7 (seven) days of the date of termination of the Lease Agreement (if no Exit Inspection is held), refund the Tenant the Deposit, including interest less any outstanding Rental, Property Charges, and Collection Charges, and
220.127.116.11. you will have no claim or right of recourse against the Tenant or Preferental for any damage caused to the Property during the Tenant’s occupation of the Property.
Reimbursement of Restoration Costs
7.18. If you are a Tenant and the balance of the deposit after payment of Rental, Property Charges, Collection Charges, and the Deposit is insufficient to cover the Restoration Costs incurred by the Landlord then, notwithstanding our right to claim these amounts from an Insurer, you will be liable to us for the full amount of the Restoration Costs paid to the Landlord.
Payment of Rental, Property Charges and Collection Charges
7.19. If you are a Tenant and have entered into a Preferental Lease Agreement or a Private Lease Agreement which is the subject of a Preferental Promise, then you agree to the following terms:
7.19.1. You agree to pay all Rental, Collection Charges and Property Charges that you are required to pay in terms of the Lease Agreement directly to us, notwithstanding anything to the contrary in the Lease Agreement.
7.19.2. Unless otherwise agreed to in the Lease Agreement, Rental will be due and payable to Preferental monthly and in advance, and Property Charges and Collection Charges will be due and payable monthly and in arrears.
7.19.3. We will provide you with a monthly invoice setting out the Rental, Property Charges and Collection Charges on or about the 25th day of each month. The amounts will be due immediately upon presentation of the invoice.
7.19.4. You are required to ensure that payment is received by Preferental before the first day of each month. Payments which are not received on or before the first day of the month will incur Administrative Charges and Collection Charges, including penalty interest on the overdue amount at the rate of 2% per annum calculated monthly.
7.19.5. Upon receipt of payment, we will provide you with a receipt in accordance with the provisions contemplated under the Rental Housing Act, and you will be entitled, at any time, to request a statement of your account from us.
Acceptance of Cession of Collection Charges
7.20. You, as a Tenant, accept the cession and assignment to us of all rights to any Collection Charges which may be due to the Landlord in terms of the Lease Agreement. You agree that we may determine the Collection Charges at our exclusive discretion and may impose Collection Charges for defaulting on any payments.
7.21. Payment in respect of your responsibilities in terms of the Lease Agreement and the obligations as set out in clause 7 of these Terms and Conditions of Service may be made only:
7.21.1. By Electronic Funds Transfer, or
7.21.2. By debit order, in accordance with the terms of clause 10 (Payment).
7.22. You must ensure that amounts paid to Preferental have been received on or before the due date for payment. You may be liable for Administrative Charges and Collection Charges irrespective of the date on which payment was made if payment was not received by us on time.
7.23. We will make copies of all invoices, receipts and account statements available for you to inspect, whether you are a Tenant or Landlord, and we will provide you with written proof of any interest accrued on the Deposit on request.
7.24. You consent to us submitting your record of payment and information regarding any default in payment to any registered credit bureau in South Africa.
Withholding of Payment
7.25. You, as a Tenant, may not withhold payment to Preferental for any reason. If a dispute arises between you and the Landlord, you are required to inform us of the dispute, and we may withhold payment if there is a valid legal dispute between you (as contemplated in clause 6.27). We will release payment to the Landlord once the dispute between you has been resolved.
Late-Payment and Default
7.26. The Landlord and Tenant agree that all responsibility for dealing with late payers and defaulters rests with Preferental.
7.27. You, as a Tenant, agree that we may recover from you any amounts which have been paid to the Landlord under the Preferental Promise.
7.28. If a Tenant fails to make payment of any Rental, Deposit, Property Charges or Collection Charges, then Preferental shall be entitled, in its sole and absolute discretion, to take legal action against the
Tenant for recovery of the amounts due (” Outstanding Amounts”).
7.29. Preferental shall be entitled, in our sole discretion, and without prejudice to any other rights that we or the Landlord may have in law:
7.29.1. to claim specific performance from the Tenant in terms of the Lease Agreement of these Terms and Conditions of Service, or
7.29.2. to cancel the Lease Agreement and, without further notice, claim all arrear Rental or any other damages from the Tenant.
7.30. The Tenant and all other persons occupying the Property through or under the Tenant will immediately vacate and allow the Landlord to take occupation of the Property following the cancellation of the Lease Agreement by the Landlord or Preferental, irrespective of the reason for the cancellation.
7.31. If the Tenant disputes the right of the Landlord or Preferental to cancel the Lease Agreement and remains in occupation of the Property pending a decision by the Court in such a dispute (” Cancellation Dispute”), then:
7.31.1. the Tenant will continue to pay an amount to Preferental which is equivalent to the Rental provided for in the Lease Agreement and will continue to pay all other payments provided for in these Terms and Conditions of Service, including Property Charges, Administrative Fees and Collection Charges. The payments will be made in accordance with the payment methods stipulated and on the date that the Rental and payments are due in these Terms and Conditions of Service;
7.31.2. Preferental is entitled to accept and recover the payments made by the Tenant, either before or after legal proceedings have been instituted. Our acceptance of the payments will be without prejudice to, and will not in any way whatsoever affect, the Landlord’s or our claim of cancellation, which is in dispute.
7.32. If a Court determines the Cancellation Dispute in favour of the Landlord or Preferental, the payments made and received in terms of clause 7.31.1 will be deemed to be amounts paid by the Tenant on account of damages suffered by the Landlord by reason of the cancellation of the Lease and/or the unlawful holding over by the Tenant.
7.33. A certificate reflecting the Outstanding Amounts, which is signed by any director or legal manager of Preferental, will be prima facie proof of the Tenant’s indebtedness to Preferental. This certificate will entitle us to obtain a judgment against the Tenant for the amount reflected on the certificate in any court of competent jurisdiction.
7.34. As a tenant, you agree to pay all the Collection Charges associated with any action(s) undertaken by us in attempting to collect any Outstanding Amounts from you. If you settle the Outstanding Amounts due before judgement is taken or an award for eviction is granted against you, then you will continue to remain liable for the Collection Charges incurred by us. You agree to pay any legal fees and disbursements incurred on the attorney-and-client scale.
7.35. If a Tenant defaults and we receive any amount claimed by us from an insurance policy, then the Insurer may instruct us to institute legal proceedings against the Tenant to recover the claim. The Tenant will be liable for the Collection Charges in respect of the proceedings.
Limitations and Exclusions
7.36. The Landlord and the Tenant may not enter into any agreement permitting the late payment or withholding of Rental, Deposit, Property Charges or Collection Charges.
7.37. The use of Rental and Deposit collected by Preferental in terms of these Terms and Conditions of Service will be determined by us, and the Landlord and Tenant may not agree to any set-off, deduction or reduction against any of these amounts without the written consent of Preferental.
7.38. If the Tenant withholds payment as a result of any agreement contemplated in clauses 7.36 (late payment or withholding) or 7.37 (set-off, deduction, or reduction), then we will not be liable for payment to the Landlord for the amount withheld. If the amount has already been paid to the Landlord, then we will be entitled to recover the amount in accordance with clause 6.19 (dealing with the recovery of amounts due to Preferental by a Landlord).
8 INDEMNITY BY TENANT
8.1. As a Tenant, you agree and undertake:
8.1.1. to keep Preferental indemnified and to hold Preferental harmless against all payments, loss or damage, from any cause arising, which Preferental may sustain as a result of having paid the Landlord in terms of the Preferental Promise; and
8.1.2. To waive the benefit of the exceptions non causae debiti, non numeratae pecuniae, and excussionis.
8.2. The indemnity is continuing in nature and shall not be terminated or revoked by the cancellation or avoidance of the Lease Agreement.
8.3. Our insurer has the right to request us to cede our rights and claims under the indemnity to the insurer. In such circumstances, Preferental may cede the rights, title and interest, and you agree and consent to the cession.
9. SERVICE CHARGES
9.1. The Virtual Inspection Service is free to use for any person who registers a Preferental Account.
9.2. The Landlord will pay the following charges as remuneration for the services received:
9.2.1. A once-off activation fee equal to R350 per property activated; and
9.2.2. A monthly Administration Fee of R125 per month; and
9.2.3. A monthly fee that is calculated as a percentage of the monthly rental (depending on the package selected) collected from the Tenant.
10.1. Preferental offers various facilities and methods of payment for Service Charges, Rental, Deposits, Property Charges and Collections Charges. These facilities may be made available by Preferental directly or through our agents or third-party companies authorised by Preferental to collect and facilitate payment.
Clause Specific Definitions
10.2. For the purposes of this clause, the words “we”, “us”, and “our” refer to Preferental, including its agents and authorised third-parties.
10.3. For the purposes of this clause, ” Outstanding Balance” means and includes:
10.3.1. any Service Charges that may be payable by either a Tenant or Landlord to us in accordance with these Terms and Conditions;
10.3.2. any Rental, Deposit or Property Charges that we are entitled to collect from a Tenant for purposes of the Preferental Promise service;
10.3.3. any Collection Charges that may be incurred by us in attempting to collect any amounts from a Tenant or Landlord;
10.3.4. any amounts which are due by a Landlord to Preferental as contemplated in clause 6.19 (amounts due by Landlord to Preferental).
Electronic Funds Transfer
10.4. You may settle any Outstanding Balance by direct payment by way of Electronic Funds Transfer (EFT) into the Preferental bank account. The details of our bank account may be viewed at www. Preferental .co.za.
10.5. You must ensure that the correct payment reference is used when making a payment via EFT for us to allocate your payment to your account. We will not consider a payment as received until it has been allocated.
10.6. We may directly debit the bank account associated with your Preferental Account if you elect the debit order service as your preferred payment option for your Outstanding Balance. We may directly debit your bank account if a debit order is not your preferred payment option if your Outstanding Balance was not settled on time.
Debit Order Authority
10.7. You hereby instruct and authorise us to draw against your account with the bank whose details have been provided to us for the registration of your Preferental Account (or any other bank or branch to which you may transfer your account) your Outstanding Balance on the first working day of each month. All such withdrawals from your bank account by you shall be treated as though they had been signed by you personally. You hereby authorise us to verify you bank account details with your bank.
Interest and Penalties for Late Receipts
10.8. You may incur Collection Charges or Administrative Fees if your payment is not received in the Preferental bank account or allocated on or before the date on which it is due. These charges and Administrative Fees will be billed to you irrespective of the cause of the delay in payment, and it is your responsibility to ensure that we receive the payment on time.
11. DISCLAIMERS AND LIMITATIONS OF LIABILITY
11.1. Preferental makes available an online platform or marketplace with related technology for Tenants and Landlords to conclude Lease Agreements, and Preferental provides Services and tools to assist the Tenant and Landlord in managing their obligations towards each other. Preferental is not an owner of Properties, nor is it a provider of Properties, and Preferental does not own, sell, resell, furnish, provide, rent, re-rent, manage, insure and/or control properties. Unless explicitly specified otherwise in the Preferental platform, Preferental’s responsibilities are limited to facilitating the availability of the Site, Application and Services.
11.2. Preferental is not responsible for the condition of a Property or its maintenance or repair. These issues must be dealt with between the Landlord and the Tenant in accordance with the terms agreed between them in a Lease Agreement.
11.3. Preferental is not responsible for any damage or loss of furniture or other articles kept by a Tenant or a Landlord on a Property caused by leakage, rain, hail, snow, fire or interruption of water or electricity supplies or any cause whatsoever.
11.4. Preferental does not insure the Property, the contents of the Property or any other property of the Tenant or Landlord, whether movable or immovable, and it is your responsibility to ensure that your property and possessions are adequately insured.
11.5. Preferental will not be responsible or liable to the Tenant or the Landlord, or family, friends, servant or guests of the Tenant or Landlord for any loss sustained by any of them as a result of any theft, burglary or fire on or in or about the Property or any damages suffered as a result of any negligent act or omission on the part of the Tenant, Landlord, Preferental or its agents, as the case may be.
11.6. Preferental will not be responsible or liable for any personal injury which may be sustained in or on or about a Property by the Tenant or the Landlord, or family, friends, servant, or guests of the Tenant or the Landlord or any other person whatsoever, however, such injury may be caused.
11.7. IN NO EVENT WILL Preferental BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES ARISING IN CONNECTION WITH THIS SITE OR ANY LINKED SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF GIVENGAIN, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES.
12.1. We reserve the right, at our sole discretion, to modify or terminate the Services or to vary these Terms and Conditions of Service at any time and without prior notice.
12.2. If we vary these Terms and Conditions of Service, we will post the variation on the Site or via the Application and/or provide you with notice of the variation by email. We will also update the “Last Updated” date at the top of these Terms and Conditions of Service.
12.3. Changes to the Terms and Conditions of Service will be effective at the time of posting. Your continued use of the Services will constitute acceptance of the revised Terms and Conditions of Service.
12.4. If the varied Terms and Conditions of Service contain material changes applicable to existing Landlords or Tenants (by decreasing your rights or increasing your responsibilities), we will provide you with notice prior to the changes taking effect.
12.5. If the varied Terms and Conditions of Service are not acceptable to you, your only recourse is to cease using the Services and terminate your Preferental Account. If you do not close your Preferental Account, you will be deemed to have accepted the changes.
13. INTELLECTUAL PROPERTY
13.1. ” Intellectual Property” means all intellectual property rights relating to patents, trademarks, trade names, copyright (including rights in computer software, text, photographs, graphics, images, music, audio, video, information or other materials), design rights, trade or business names, domain names, know-how, database rights, and topography rights, whether registered or unregistered and all rights or forms of protection of a similar nature in any territory in the world, relating to the Site, Application or Services.
13.2. ” User Intellectual Property” means all intellectual property rights copyright relating to text, photographs, graphics, images, audio, video, information or other materials, or trademark, whether registered or unregistered, which a user of this Site may post, upload, publish, submit or transmit by their use of the Site, Application or Services.
13.3. You acknowledge and agree that the Intellectual Property is the exclusive property of Preferental and its licensors. You will not remove, alter or obscure any copyright, trademark, or other Intellectual Property rights notices incorporated in or accompanying the Site, Application, or Services. All trademarks, logos, trade names, and any other devices of Preferental used on or in connection with the Site, Application, or Services are trademarks or registered trademarks of Preferental in the Republic of South Africa and abroad. Trademarks, logos, trade names and any other devices of third parties used on or in connection with the Site, Application, or Services are used for identification purposes only and may be the property of their respective owners.
13.4. Subject to your compliance with these Terms and Conditions of Service, Preferental grants you a limited, non-exclusive, non-transferable license to (i) access and view any Intellectual Property solely for your personal and non-commercial purposes and (ii) access and view any User Intellectual Property to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
13.5. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Intellectual Property or User Intellectual Property, except as expressly permitted in these Terms and Conditions of Service. No licenses or rights are granted to you tacitly or by implication under any intellectual property rights owned or controlled by Preferental or its licensors except for the licenses and rights expressly granted in these Terms and Conditions of Service.
13.6. We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Intellectual Property. By making available any User Intellectual Property on or through the Site, Application, Services, or through promotional campaigns, you hereby grant to Preferental a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, translate, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Intellectual Property on, through, by means of or to promote or market the Site, Application and Services. Preferental does not claim any ownership of User Intellectual Property, and nothing in these Terms and Conditions of Service will be deemed to restrict any rights that you may have to use and exploit any such User Intellectual Property.
13.7. You acknowledge and agree that you are solely responsible for all User Intellectual Property that you make available through the Site, Application, Services or through promotional campaigns. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Intellectual Property that you make available through the Site, Application, Services or through promotional campaigns, or you have all rights, licenses, consents and releases that are necessary to grant to Preferental the rights in such User Intellectual Property, as contemplated under these Terms and Conditions of Service; and (ii) neither the User Intellectual Property nor your posting, uploading, publication, submission or transmittal of the User Intellectual Property or Preferental’s use of the User Intellectual Property (or any portion thereof) on, through or by means of the Site, Application, the Services or promotional campaigns will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation
13.8. Intellectual Property Claims: Preferental respects the intellectual property rights of others and expects users to do the same. We will respond to clear notices of alleged copyright or trademark infringement consistent with applicable intellectual property law.
14.2. You agree that we may collect and store your Personal Information via the Site and the Application when you create a Preferental Account. You may also provide us with your Personal Information, such as your name, email address, or contact details by your use of the Site or Application, which may not be related to creating a Preferental Account, for example, when you submit a request for us to contact you or if you subscribe to a mailing list.
14.3. The amount and type of Personal Information that we collect from you depends on the nature of your interaction with us. We only collect your Personal Information to the extent that it is necessary or appropriate to fulfil the purpose of your interaction with us.
14.4. We do not disclose Personal Information other than as described below. You can always refuse to supply your Personal Information to us, however, this may prevent you from engaging in certain activities on the Site or Application or receiving certain Services from us.
14.5. We only disclose your Personal Information to those of our employees, agents, contractors and affiliated organisations that (i) need to know the information in order to process it on our behalf or to provide the Services, and (ii) that have agreed not to disclose it to others.
14.6. Some of our employees, agents, contractors and affiliated organisations may be located outside of the Republic of South Africa. By using the Site, Application or Services, you consent to the transfer of your Personal Information to them and the transfer of the information back into the Republic of South Africa, irrespective of whether the employee, agent, contractor or affiliated organisation is in a country that provides adequate protection for purposes of the Protection of Personal Information Act.
14.7. We will not rent or sell your Personal Information to anyone. Other than to our employees, contractors, agents and affiliated organisations, as described above, we only disclose your Personal Information when required to do so by law or when we believe in good faith that disclosure is reasonably necessary to protect our property or rights, or the property and rights third parties or the public at large.
14.8. We may send you administrative messages and emails to solicit your feedback or keep you up-to-date with the Site, the Application or the Services. In some cases, we may also send you primarily promotional messages. You may choose to opt out of promotional messages by contacting us or clicking on a link to opt out if a link is provided.
14.9. If you send us a request (for example, via a support email or via one of our feedback mechanisms), we reserve the right to publish it in order to help us clarify or respond to your request or to help us support other users.
14.10. We take all measures reasonably necessary to protect against the unauthorized access, use, alteration or destruction of your Personal Information.
14.11. You should be aware that other websites visited before entering our Site might place Personal Information within your URL during a visit to it, and we have no control over such websites. Accordingly, a subsequent website that collects URL information may log some Personal Information.
14.12. If we undergo a change in ownership, or a merger with, acquisition by, or sale of assets to another entity, we may assign our rights to the Personal Information we process to a successor, purchaser, or separate entity. We will notify you of the transfer, and you choose to modify your Personal Data at that time. If you are concerned about the migration of your Personal Information to a new owner, you may deactivate or delete your Preferental Account.
14.13. We may disclose your Personal Information to designated third parties to resolve or investigate abuse complaints. We may release your Personal Information to the extent necessary to assist in attempting to block your abuse or to complain to our Internet Service Provider about your suspected abuse.
14.14. You have the right to access, rectify, or erase your personal information from our servers at any time, subject to applicable laws and regulations. We comply with the General Data Protection Regulation (GDPR) and the Protection of Personal Information Act (POPIA) concerning the processing of personal data.
15. CURRENCY, TAXES AND LAW
15.1. All amounts stated in these Terms and Conditions of Service are in the currency of the Republic of South Africa
15.2. All amounts stated in the Terms and Conditions of Service are inclusive of Value Added Tax (VAT) as determined in the Value Added Tax Act.
15.3. These Terms and Conditions of Service shall be governed by and construed in accordance with the laws of the Republic of South Africa, and you agree to submit to the exclusive jurisdiction of the South African courts.
15.4. Despite anything to the contrary in these Terms and Conditions, we have the right to do all things necessary or appropriate to comply with the provisions and requirements of any legislation or regulatory authorities.
You acknowledge and agree:-
16.1. That no provisions, terms, conditions, stipulations, warranties or representations of whatsoever nature, whether express or implied, have been made by any of the parties to these Terms and Conditions of Service or on their behalf except as are recorded herein;
16.2. That no relaxation, extension of time, latitude or indulgence which any Party (“the grantor”) may show, grant or allow to another (“the grantee”) shall in any way constitute a waiver by the grantor of any of the grantor’s rights in terms of these Terms and Conditions of Service and the grantor
shall not thereby be prejudiced or estopped from exercising any of its rights against the grantee which may have then already arisen or which may arise thereafter;
16.3. To do all such things, take all such steps and to procure the doing of all such things and the taking of all such steps as may be necessary, incidental or conducive to the implementation of the provisions, terms, conditions and import of these Terms and Conditions of Service;
16.4. You are not entitled to cede, assign or otherwise transfer any of your rights, interests or obligations under and in terms of these Terms and Conditions of Service without the prior written consent of Preferental.
17.1. These Terms and Conditions of Service (” Agreement”) will be signed electronically in compliance with the Electronic Communications and Transactions Act 25 of 2002 and any other applicable laws regarding digital signatures. Any electronic signature, whether the name of either party, or digital signature, or representation of the physical signature of the respective Party, as the case may be, shall bind the parties to this Agreement as if the Agreement was concluded and signed physically, and the date stamp as digitally assigned by a user device, software, application, or server, as determined by Preferental, shall be deemed to be the date of signature of this Agreement.
17.2. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute the same Agreement as at the date of signature of the Party last signing one of the counterparts.
17.3. These Terms and Conditions of Service will be binding between the Landlord, Tenant and Preferental, notwithstanding that counterparts have been signed in accordance with clause 17.2.
17.4. The place of conclusion of this Agreement is deemed to be Johannesburg, South Africa, irrespective of where either Party signed the Agreement.
17.5. A digital copy of this Agreement shall be kept by Preferental, which may be accessed from Preferental on request.
18. THIRD-PARTY SERVICES DISCLAIMER
18.1. The use of third-party services is done at your discretion and risk, and with your agreement that you will be solely responsible for any damage you experience as a result of your use of Third-Party Services. Any warranty that is provided by a third party is provided solely by such a Third Party and not by Preferental or any Preferental affiliate
18.1.1 You acknowledge and agree that Preferental is not responsible for Third-Party Services and that Preferental makes no representations or warranties regarding Third-Party Services.
18.1.2. Preferental does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from any Third Party Services.
18.1.3. Preferental will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with the use of or reliance on any Third Party Services.
18.1.4. If you decide to enable, access or use Third Party Services, be advised that your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services.
18.1.5. You irrevocably waive any claim against Preferental and its affiliates concerning such Third Party Services. “Third Party Services” means third-party products, applications, services, software, networks, systems, directories, websites, databases and information which a Preferental Service links to, or which you may connect to or enable in conjunction with a Preferental Service, including, without limitation, Third Party Services which may be integrated directly into your account by you or at your direction.
19.1. Listing a Property: By listing your property on Preferental, you agree to the terms and conditions herein. The standard listing duration is three (3) months 93 Days, after which, if still vacant, the property will be automatically removed from all listing portals. A reminder will be sent as the listing approaches its expiration date for easy re-submission.
19.2. Single Unit per Listing: Each available rental unit must be advertised separately, and a single advertisement cannot be used to advertise multiple units.
19.3. Availability Confirmation: Landlords must be reachable by potential tenants during the advertising period. If we receive complaints that a landlord cannot be reached or fail to get a response from the landlord, we reserve the right to temporarily block the listing until the issue is resolved.
19.4. Termination of Listings: Preferental reserves the right to remove any listing that violates our policies or fails to meet the standards we require. We will notify the landlord of any such removal and provide assistance if needed to reactivate the listing. However, any property that remains unoccupied or unavailable after three months of listing will be removed without prior notice.
19.5: “Landlords and agents are responsible for ensuring the accuracy and authenticity of the property listings provided. Preferental reserves the right to verify the authenticity of listings and may temporarily or permanently remove listings found to be inaccurate or misleading.”
19.5.1 Active Lease History: If the property has been subject to any active leases, it cannot be removed but will be archived to safeguard historical data.
19.5.2 Existing Tenant: If a current tenant is associated with the property, complete deletion is restricted. The property will be archived to maintain tenant information.
19.5.3 Connected Applications: Should there be any connections to applications or leasing processes, the property won’t be removed but archived to retain these ties.
19.5.4 Application Distribution: If applications have been distributed for the property, the complete deletion option is unavailable, and archiving will take place.
19.5.5 Additional Listing Data: In case extra listing information has been appended to the property, complete removal is disabled, and the property will be archived.
19.6. PROPERTY TRANSFER PROCESS
19.6.1 If the new owner has an existing Preferental account, provide their User ID, you will have to request this from Preferental email@example.com.
19.6.2 If the new owner doesn’t have an account, invite them to Preferental and wait for them to create an account.
19.6.3 Once the new owner has an account, provide their User ID to finalise the property transfer. Please contact Preferental for assistance in obtaining the User ID.
19.6.4 Remember, transferring a property ensures a smooth transition of ownership and historical information within the Preferental platform.
19.7. PROPERTY REACTIVATION
19.7.1 You’ve chosen to reactivate your archived property. By doing so, the property will be moved back into your active property portfolio, allowing you to manage it just like before. Here’s what will happen:
19.7.2 The property will be restored to your property portfolio overview.
19.7.3 You can edit, list/advertise, and manage the property as needed.
19.7.4 Any historical data associated with the property will be made accessible again.
19.8.1. Incoming Inspection, By proceeding with an incoming inspection, both the landlord and the tenant acknowledge its importance for documenting the property’s condition at the commencement of the lease. Both parties must be present during the inspection, with the tenant required to sign off on the documented findings. Following this, the tenant has a grace period of seven (7) days to report any additional issues via a Snag List. Once addressed, this document, along with any attached files, serves as a legally binding record of the property’s condition at the lease’s start.
19.8.2. Update Inspection, While not mandatory, an update inspection is strongly recommended at each lease renewal. This inspection provides a lawful assessment of the property’s condition, ensuring it’s well-maintained and evaluating its value, addressing any required updates or maintenance.
19.8.3. Maintenance Inspection, A maintenance inspection can be initiated at any time and does not require the property to be occupied. It helps proactively address maintenance needs, ensuring the property remains in excellent condition and is especially recommended as part of a Spring maintenance program.
19.8.4. Outgoing inspections become available within sixty-five (65) days before and after the property is scheduled to be vacated. It’s crucial for making claims related to the deposit and must be submitted on the day the tenant vacates the property with the tenant’s signature, as it impacts deposit claims. Compliance with South African rental laws and regulations is accepted by proceeding.
20. BOOSTED LISTINGS
20.1. Once payment for the ‘boosted listing’ has been made and activated, it is non-refundable.
20.2. The listing will be ‘boosted’ as soon as proof of payment has been received and will be active for 30 calendar days if on Private Property and 7 Days on Property24, after which it will no longer be a ‘boosted/featured’ listing.
20.3. Once payment has been made and a tenant is placed before the end of the ‘boosted’ period, a refund will not be permitted.
20.4. Boosted Listings are in the order from most recently approved. When a property is ‘boosted’, it may appear at the top of the page on Property24 when your specific suburb, city and province are searched but may go lower down on the page once someone else pays the next ‘boosted’ listings fee. However, it will still be higher on the search list than those who haven’t used the ‘boosted’ feature.
20.5. By clicking on ‘Pay Now’, you have read and agreed to the terms and conditions of Preferental and Property24.
20.6. Whilst Preferental has taken reasonable measures to ensure the integrity of our website and its contents, no warranty is given that it will operate error-free.
20.7. Limitation of Liability: Preferental will not be liable under any contract, negligence, or other legal theory for the: interruption of use, loss or corruption of data.
21. TECHNOLOGY INTEGRATION:
22.1. You agree to indemnify, defend, and hold harmless Preferental, its officers, directors, employees, agents, and third parties for any claims, losses, liabilities, damages, and costs (including attorney’s fees) arising from your use of the Services or violation of these Terms and Conditions.
23.1. Any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration under the rules of the Arbitration Foundation of Southern Africa.
24.1. Preferental reserves the right to terminate your access to the Services at any time, with or without cause or notice, effective immediately. You may also terminate your Preferental Account at any time, though your information may remain stored within our database.
25. PROCESS ACKNOWLEDGEMENT
25.1. By engaging in any process on our platform, you acknowledge and agree that each process may have its own set of policies and procedures. Your commencement and continuation of any process constitutes your acceptance and agreement to adhere to the respective policies and procedures governing that process at that time.
NOTE: Regular reviews of these Terms and Conditions will be conducted to ensure compliance with applicable laws, regulations, and industry standards.
Preferental: Terms and Conditions of Service | Updated Date 31/10/2023