Do consumers have the right to inspect and return software?

  • The consumer must be allowed a reasonable opportunity to examine the software to ensure that it is of a type and quality reasonably contemplated in the agreement, and that it meets the requirements and standards reasonably expected or, in the case of a special-order agreement, reasonably conform to the material specifications of the special order.
  • The consumer may return software within 10 days for a full refund if he or she did not have an opportunity to examine before delivery and the consumer has rejected delivery of the software because it doesn’t meet the necessary requirements and standards or doesn’t satisfy the particular purpose communicated to the supplier.
  • Shrink wrap agreements may no longer be valid under SA law as breaking the packaging of the software to inspect same would ordinarily constitute acceptance of delivery.
  • The consumer will not be able to return software that has already been partially or entirely disassembled, physically altered, permanently installed, affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property.

Instructions and supporting documentation
The Act states that such documentation must be produced in plain language which is understandable to an ordinary software user with average literacy skills and minimal experience as a consumer of the relevant software or services

What about one sided licence agreements and contracts?
Software suppliers and ICT service providers may not offer software or ICT services on terms that are unfair, unreasonable or unjust. This would include provisions in a contract that:

  • require a consumer to waive any of their rights under the Act or assume any obligations;
  • allow a supplier or service provider to waive their liability under the Act;
  • are excessively one-sided in favour of the supplier;
  • are inequitable;
  • are based on the consumer’s reliance on a false, misleading or deceptive representation, or statement of opinion made by
  • the supplier to the detriment of the consumer;

A limitation of liability, assumption of risk, indemnity or acknowledgement of any fact by a consumer must be drafted in plain language and drawn to the attention of a consumer, including an explanation as to their nature and effect, in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances before the agreement is entered into or any consideration has been given for the goods or services.

Notification of risks associated with the goods or services
If an activity associated with the goods or services is subject to any riskof an unusual nature or that could result in serious injury or death or a risk that consumers could not reasonably be expected to be aware of or notice, the supplier must specifically draw the consumer’s attention to those risks and retain proof that the consumer has expressly or by their conduct assented to accepting those risks.
Written contracts
If a consumer agreement between a supplier and a consumer is in writing, whether as required by the Act or voluntarily between the parties, it will be valid irrespective of whether or not the consumer signs the agreement. The supplier must provide the consumer with a free hard or electronic copy of the terms and conditions of that agreement.

What about unlawful provisions in software contracts?

  • A supplier cannot make any agreement with a consumer subject to any term or condition ifits general purpose or effect is to defeat the purposes and policy of the Act.
  • Any terms and conditions in an agreement which mislead or deceive the consumer will be void.
  • Any limitation or exemption from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier will be unlawful.
  • Standard form clauses which falsely express an acknowledgement by the consumer that before the agreement was made, no representations or warranties were made in connection with the agreement by the supplier or a person on behalf of the supplier; or that the consumer has received goods or services, or a document that is required by the Act, will be void.
  • Any forfeiture clauses which require the consumer to forfeit any money to the supplier if the consumer exercises any right in terms of the Act or to which the supplier is not entitled in law will be unlawful.
  • Any term authorizing the supplier to enter any premises for the purposes of taking possession of goods to which the agreement relates or an undertaking by the consumer to sign in advance any documentation relating to the enforcement of the agreement, irrespective of whether such documentation is complete or incomplete at the time it is signed will be unlawful.
  • Any consent to pay predetermined costs relating to the enforcement of the agreement will be unlawful.
    If, in any proceedings before a court concerning a transaction or agreement between a supplier and a consumer, a person alleges that an agreement, a term or condition of an agreement, or a notice to which a transaction or agreement is purportedly subject, is void or failed to satisfy any applicable notice requirements, the court may make an order severing any part of the relevant agreement, provision or notice, or alter it to the extent required to render it lawful, if it is reasonable to do so having regard to the transaction, agreement, provision or notice as a whole; or declaring the entire agreement, provision or notice void as from the date that it purportedly took effect; and make any further order that is just and reasonable in the circumstances with respect to that agreement, provision or notice, as the case may be.

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