GENERAL TERMS OF SERVICE

 

1.           GENERAL

 

1.1.       In this document the following words shall have the meaning ascribed to them:

1.1.1.        Agreement” means the agreement concluded between Sensor Networks and the User in accordance with these Terms upon acceptance of these Terms by the User, and as amended from time to time in accordance with these Terms;

1.1.2.        App” means the Sensor Networks Smart Home mobile application;

1.1.3.        Client-Specific Terms” means the terms of service specific to Sensor Networks’ own clients (which appear directly after these Terms);

1.1.4.        Contract Period” means the period for which the User is entitled to make use of the Services in terms of an agreement between the User and an authorised customer of Sensor Networks or between Sensor Networks and the User (in terms of the Client-Specific Terms), subject to earlier termination in accordance with its terms;

1.1.5.        Equipment” means the Smart Geyser, Smart Security or fire alarm Equipment in respect of which the User intends to interact using the App;

1.1.6.        Parties” means Sensor Networks and the User and “Party” means either one of them;

1.1.7.        Platforms” means the Website and the App;

1.1.8.        Privacy Policy” means the privacy policy in use from time to time by Sensor Networks which is located on the Website;

1.1.9.        Sensor Networks/us/our” means Sensor Networks Proprietary Limited (Registration Number: 2013/170601/07);

1.1.10.      Sensor Networks Data” means any data provided by Sensor Networks to a User or uploaded by Sensor Networks onto the Platforms;

1.1.11.      Services” means those services offered by us via the Platforms;

1.1.12.      System” means the intellectual property, software, hardware, materials and all other third party software, electronic, computer, telecommunication Equipments and other equipment used by Sensor Networks and/or its sub-contractor(s) for the provision of the Platforms and the Services including any and all interfaces to the equipment for the purpose of interacting with the User;

1.1.13.      Terms” means the general terms of service as set out in this document (which excludes the Client-Specific Terms), as may be amended, varied or added to from time to time by Sensor Networks;

1.1.14.      User” means the person who accesses or uses the Services, including all persons who the User has authorised to gain access to the System (for whom the User shall be responsible);

1.1.15.      User Account” means the virtual account to be opened for the User which will be accessed by the User using their User Name and Password;

1.1.16.      User Data” means all information and other documents uploaded by the User onto the Platforms, other than the Sensor Networks Data;

1.1.17.      User Name and Password” means the user name allocated by Sensor Networks to the User and the corresponding password provided to and/or created by the User; and

1.1.18.      Website” means https://www.sensornetworks.co.za/ .

1.2.       The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.3.       Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons include created entities (corporate or non-incorporate) and vice versa.

 

2.           INTRODUCTION

 

2.1.       Sensor Networks owns the System.

2.2.       The User has acquired or procured the use of the Equipment and intends to make use of the Services.

2.3.       Sensor Networks intends to make the Services available to the User for the Contract Period, subject to these Terms.

 

3.           APPLICABILITY OF THESE TERMS

 

These Terms apply to all Users (including Sensor Networks’ own clients).

 

4.           ACCEPTANCE OF THESE TERMS

 

4.1.       The User unconditionally and irrevocably agrees, for as long as it accesses and/or makes use of the Services, to be bound by and comply with these Terms.

4.2.       Any changes to these Terms will be communicated to the User via e-mail, sms or updated on the Platforms, and such changes will be effective 14 (fourteen) days thereafter. By continuing to use the System and/or the Services after such changes, the User unconditionally and irrevocably agrees to be bound by the Terms, as amended.

4.3.       As Sensor Networks is required by law to communicate changes and updates to the Terms to the User, any communication in this regard will not be subject to any opt out clause the User may have communicated to Sensor Networks or any third party.

4.4.       The User shall ensure that its personal details (including contact details) are kept up to date.

 

5.           TERM

 

5.1.       An Agreement shall come into effect between the User and Sensor Networks in accordance with these Terms on the date of acceptance of these Terms by the User and such agreement shall continue indefinitely, provided that Sensor Networks shall only be obliged to make the Services available to the User for the Contract Period.

5.2.       The User unconditionally and irrevocably agrees, for as long as it accesses and/or makes use of the Services, to be bound by and comply with the Agreement.

 

6.           REGISTRATION

 

6.1.       In order to use the Services the User will be required to complete the Registration Process referred to below.

6.2.       To complete the Registration Process, the User must –

6.2.1.        Download the App;

6.2.2.        sign up as a user on the App;

6.2.3.        complete the registration form by inserting the User Data;  and

6.2.4.        accept these Terms.

6.3.       Sensor Networks will create a User’s Profile once the User has selected a user name and password and has successfully completed the Registration Process.

6.4.       The registration form is hereby incorporated into these Terms by reference.

 

7.           THE USER’S OBLIGATIONS

 

7.1.       The User shall at all relevant times –

7.1.1.        ensure that the User Data provided by it to Sensor Networks and/or uploaded by it onto the Platforms is up-to-date, accurate, reliable and valid in accordance with applicable laws;

7.1.2.        be responsible for checking that the User Data has been successfully uploaded and is stored in the relevant location;

7.1.3.        continuously update the User Data to make sure that it is correct and reliable;

7.1.4.        not disclose its User Account Number and/or Password to any third party;

7.1.5.        not use the System or the Services in any manner which violates these Terms or any applicable laws; and

7.1.6.        comply with all reasonable requests of Sensor Networks in relation to its use of the Platforms.

7.2.       Where the User Data contains personal information as defined in the Protection of Personal Information Act No 23 of 2008 (“POPIA”) of any person other than the User it warrants that it has and will continue to comply with all applicable laws in connection with its processing of such personal information, including POPIA, the Electronic Communications and Transactions Act No 25 of 2002 and the Promotion of Access to Information Act No 2 of 2000.

7.3.       Where the User is a client of Sensor Networks all User Data concerning the User will be processed by Sensor Networks as responsible party in accordance with the Privacy Policy. Where the User is not a client of Sensor Networks it will be processing User Data as an operator for and on behalf of the party from whom the User acquired the Equipment or the use thereof.

7.4.       In order to make use of the Services, the User must have compatible hardware, software (latest version recommended and sometimes required) and Internet access. The Services’ performance may be affected by these factors, and Sensor Networks does not warrant that the software will be compatible with versions that are older than 2 (two) years (unless otherwise agreed).

 

8.           SUSPENSION, RESTRICTION AND TERMINATION OF THE SERVICES

 

8.1.       Sensor Networks reserves the right at any time to suspend or terminate the Services (or any part thereof) of any User with or without notice if:

8.1.1.        the User breaches any of these Terms or the Client-Specific Terms (where applicable), the Privacy Policy or applicable laws;

8.1.2.        Sensor Networks, in its sole discretion, believes that the User has misused the Services or has violated any applicable laws in connection with the use of the Services; and/or

8.1.3.        Sensor Networks believes it is necessary to prevent loss or damage to it or the User, to prevent corruption or loss of User Data and/or to comply with applicable laws.

8.2.       In addition, Sensor Networks reserves the right to temporarily suspend the Services for any maintenance or repair work or for any other reason that requires the temporary suspension of the functionalities of the System.

8.3.       The User agrees that Sensor Networks shall not be liable to the User or to any third party for any modification, suspension or termination of the Services in terms of this clause 8.

 

9.           THIRD PARTY PROVIDERS

 

9.1.       The User acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third party websites and that it does so solely at its own risk.

9.2.       Sensor Networks shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed, and/or any contract entered into by the Customer with any such third party.

9.3.       Sensor Networks does not endorse or approve any third party website nor the content of any third party website made available via the Services.

 

10.         SENSOR NETWORKS’ INTELLECTUAL PROPERTY

 

10.1.     Sensor Networks owns or is licensed to use all intellectual property rights in and to the System, the Services and all materials, text, drawings and data entered into or uploaded by it onto the System (collectively the “Intellectual Property").

10.2.     Sensor Networks grants the User a non-exclusive and non-transferable license to use the Intellectual Property for as long as Sensor Networks provides the User with the Services and the User shall be entitled to use such Intellectual Property solely for purposes of using the Services as intended by Sensor Networks.

10.3.     Any unauthorised reproduction, distribution, derivative creation, sale, broadcast or other circulation or exploitation of the whole or any part of the Intellectual Property by the User shall constitute an infringement of Sensor Networks’ rights in and to such Intellectual Property and a breach of this Agreement.

10.4.     Sensor Networks owns or is licensed to use the Sensor Networks trademarks, names, logos and service marks (collectively "Trademarks") displayed on the Platforms whether registered or unregistered. The User must obtain Sensor Networks’ written permission to use any Trademarks.

              The User may not –

10.4.1.      use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology for any unlawful purpose, including the unlawful access to, acquisition of, control over, copying or monitoring of the System and/or Platform; or

10.4.2.      attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising the System or the Services.

 

11.         WARRANTIES

 

11.1.     The User warrants to Sensor Networks that –

11.1.1.      the User is legally entitled to access and use the Services and to be bound by these Terms;

11.1.2.      the uploading of the User Data does not and will not violate applicable laws or the rights of any third party;

11.1.3.      all User Data is up-to-date, accurate and truthful and the User has the right to upload such information to the System and/or the Platforms;

11.1.4.      the User has, and will continue to have all necessary consents to use the Services and the User Data; and

11.1.5.      the User is and will remain in compliance with all applicable laws in relation to the use of the Services and the User Data.

11.2.     Although Sensor Networks will always try to ensure that the functionality of the Services are available, the Services are provided "as is". Subject to the Consumer Protection Act 68 of 2008 as read with any of its Regulations (collectively "the CPA"), Sensor Networks makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) in this regard. Subject to the CPA, Sensor Networks does not warrant that the Services will -

11.2.1.      meet the User’s requirements or expectations;

11.2.2.      be uninterrupted, timely, secure or error free;

11.2.3.      meet any particular measure of accuracy, completeness or reliability, performance or quality; or

11.2.4.      be free of viruses or any other data or code which has the ability to corrupt or adversely affect the operation of the User’s computer, data or network.

 

12.         LIMITATION OF LIABILITY

 

12.1.     Sensor Networks shall under no circumstances whatsoever be liable for any direct or indirect loss or damage resulting from inter alia:

12.1.1.      any permanent or temporary failure of the System or errors in the System;

12.1.2.      the unauthorised use of the Services by any third party;

12.1.3.      inadvertent damage, corruption or loss of the User Data or data collected from the Equipment;

12.1.4.      telecommunication, electricity, internet or server downtime or failure; or

12.1.5.      the User failing to adhere to any of these Terms.

12.2.     Notwithstanding anything to the contrary contained herein, Sensor Networks shall not be liable for:

12.2.1.      any special or indirect damages whether within the contemplation of the parties to this Agreement or not; and/or

12.2.2.      loss of income or profit, howsoever arising.

 

13.         INDEMNITY

The User indemnifies Sensor Networks, its affiliates and subcontractors against any third party claims, damages or costs (including reasonable attorney's fees) caused by or attributable to the User’s -

13.1.     acts or omissions;

13.2.     use of the Services; or

13.3.     breach of these Terms.

 

14.         FORCE MAJEURE

 

              Sensor Networks shall not be deemed in default or otherwise liable for any delay in or failure to provide the Services for any cause which is unforeseeable or beyond the reasonable control of Sensor Networks.

 

15.         GENERAL

15.1.     Sensor Networks may assume that all electronic communications and uploads which reasonably appears to originate from a User are in fact from the User and that the User was authorised to upload the same.

15.2.     Sensor Networks may send alerts, notifications and other communications to the User by way of SMS, email or other electronic delivery mechanisms and the User consents to receive communications from Sensor Networks in any such manner.

15.3.     A certificate signed by any one of our directors of Sensor Networks will, unless the contrary is proven, be sufficient evidence of –

15.3.1.      the date of publication and the content of the Terms and any amended Terms;

15.3.2.      the date of publication and the content of earlier versions of the Terms; and

15.3.3.      the date and content of any communication and notifications sent in terms of the Terms.

15.4.     The User’s obligations under the Agreement may not be assigned. Sensor Networks may however cede and assign its rights under this Agreement.

15.5.     Sensor Networks does not waive its rights by delaying or failing to exercise them at any time.

15.6.     If any provision of these Terms shall be determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency the validity or enforceability of any other provision of these Terms shall not be affected. These Terms will be governed by the laws of the Republic of South Africa.

15.7.     No class action, or other representative action, joinder or consolidation of any claim with a claim of another person or class of claimants will be allowed.


CLIENT-SPECIFIC TERMS

NOTE: THESE TERMS ARE APPLICABLE TO SENSOR NETWORKS’ CLIENTS ONLY. IF YOU DID NOT OBTAIN THE RIGHT TO USE THE EQUIPMENT DIRECTLY FROM SENSOR NETWORKS OR ITS RESELLERS (ACTING FOR AND ON BEHALF OF SENSOR NETWORKS) THEN THESE TERMS WILL NOT APPLY TO YOU. WE DRAW YOUR ATTENTION TO CLAUSE 15 (LIMITATION OF LIABILITY) AND 16 (INDEMNITY).

 

1.           INTERPRETATION

1.1.       In this document the following words shall have the meaning ascribed to them:

1.1.1.        Agreement” means the agreement concluded between Sensor Networks and the Client in accordance with these Client-Specific Terms upon acceptance thereof by the Client, as amended from time to time;

1.1.2.        Business Hours” shall mean 8:30 – 17:30 on a Business Day;

1.1.3.        Business Day” shall mean any day which is not a Saturday, Sunday or a recognized public holiday in the Republic of South Africa;

1.1.4.        Client” means a client of Sensor Networks who has obtained the right to use the Equipment directly from Sensor Networks or a Reseller;

1.1.5.        Client-Specific Terms” means the terms contained in this document headed “Client-Specific Terms”, and excludes the General Terms of Service;

1.1.6.        Commencement Date” means the date on which the Customer accepts these Client-Specific Terms by placing an Order for the Equipment and the Services following the Client’s receipt of a Quotation;

1.1.7.        CPA” means the Consumer Protection Act No 68 of 2008;

1.1.8.        Defect” has the meaning ascribed to that term in the CPA;

1.1.9.        Documentation” means, in respect of the Equipment, all drawings, diagrams, maintenance and operating instructions and manuals and any other information relating to the use or operation of the Equipment which is provided to the Client in whatever form or format and howsoever embodied;

1.1.10.      Equipment” means the Smart Geyser, Smart Security or fire alarm Equipment referred to in the Quotation in respect of which the Client intends to interact using the App;

1.1.11.      Equipment Cost” means the cost of the Equipment, as specified in the Quotation;

1.1.12.      Firmware” means any and all firmware imbedded in the Equipment;

1.1.13.      General Terms of Service” means the general terms of service which precede these Client-Specific Terms;

1.1.14.      Initial Term” means a period of 36 (thirty-six) months from the Installation Date;

1.1.15.      Installation Address” means the address specified by the Client in the Order for installation of the Equipment;

1.1.16.      Installation Date” means the date of installation of the Equipment at the Client’s premises, as agreed to between the Client and Sensor Networks;

1.1.17.      Installation Fee” means the installation fee payable by the Client for the installation of the Equipment, as set out in the Quotation;

1.1.18.      Installation Requirements” means the installation requirements to be made available by Sensor Networks to the Client simultaneously with the Quotation;

1.1.19.      Monthly Service Fee” means the monthly fee payable by the Client for its use of the Equipment and the Services, as set out in the Quotation (and increased in accordance with clause 5.2);

1.1.20.      Order” means an order placed by the Client from Sensor Networks or the Reseller for the use of the Equipment and the Services;

1.1.21.      Quotation” means a written quotation generated by Sensor Networks or a Reseller for the Client’s use of the Equipment and the Services;

1.1.22.      Reseller" means any reseller who is authorised by Sensor Networks to sell the Equipment for and on behalf of Sensor Networks (in the name of Sensor Networks);

1.1.23.      Services” means the services referred to in the General Terms of Service; and

1.1.24.      Warranty Period” means the warranty period referred to in the Documentation.

1.2.       Any words in these Client-Specific Terms which are capitalized but not defined shall have the meaning ascribed to those terms in the General Terms of Service.

1.3.       The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.4.       Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons include created entities (corporate or non-incorporate) and vice versa.

 

2.           APPLICABILITY OF THESE CLIENT-SPECIFIC TERMS

These Client-Specific Terms shall apply only to Clients of Sensor Networks and shall not apply to Users who have acquired the Equipment or the use thereof in terms of a contract between them and a third party (other than a Reseller).

 

3.           ACCEPTANCE OF THESE TERMS

 

3.1.       The Client unconditionally agrees to be bound by and comply with these Client-Specific Terms.

3.2.       Any changes to these Client-Specific Terms will be communicated to the Client via e-mail, sms or updated on the Platforms, and such changes will be effective 14 (fourteen) days thereafter. By continuing to use the System and/or the Services after such changes, the Client unconditionally and irrevocably agrees to be bound by the Client-Specific Terms, as amended.

3.3.       As Sensor Networks is required by law to communicate changes and updates to the Client-Specific Terms to the Client, any communication in this regard will not be subject to any opt out clause the Client may have communicated to Sensor Networks or any third party.

3.4.       The Client will ensure that its personal details (including contact details) are kept up to date.

 

4.           COMMENCEMENT AND DURATION

4.1.       This Agreement will commence on the Commencement Date, and shall endure for the Initial Term subject to earlier termination in accordance with its terms.

4.2.       On expiry of the Initial Term this Agreement will automatically renew on a month-to-month basis.

4.3.       The Client is entitled to terminate this Agreement on 20 (twenty) business days prior written notice subject to clause 4.4.

4.4.       If the Client terminates this Agreement during the Initial Term the Client will be liable for an early termination fee (“Termination Fee”) equal to the reasonable costs incurred by Sensor Networks as a result of such early termination (including the cost of de-installation, transport, administration and refurbishment).

4.5.       Sensor Networks is entitled to terminate this Agreement at any time for convenience and without cause on 20 (twenty) business days’ notice, in which case the Client will not be liable for the Termination Fee.

4.6.       On termination or expiry of this Agreement for any reason (including breach in accordance with clause 13) Sensor Networks will cease provision of the Services and the Client will be obliged to contact Sensor Networks to arrange de-installation and collection of the Equipment and shall provide Sensor Networks or its representatives with access to the Equipment no later than 20 (twenty) business days following first request by Sensor Networks for such access.

4.7.       If this Agreement is terminated during the Initial Term for any reason (including breach in accordance with clause 13) and:

4.7.1.        the Client fails to provide Sensor Networks with access to the Equipment within the period referred to in clause 4.6 then the Client will be deemed to have purchased the Equipment from Sensor Networks at a price equal to the Equipment Cost and such amount shall be immediately payable on presentation of an invoice by Sensor Networks therefore; or

4.7.2.        if the Equipment is destroyed or lost, or if Sensor Networks collects the Equipment but the Equipment is found to be damaged for any reason then the Client shall be liable for the lesser of the Equipment Cost and the reasonable cost of repair of the Equipment.

4.8.       The Equipment and its components may only be de-installed or removed by Sensor Networks’ accredited technicians, provided that Sensor Networks may choose, on written notice to the Client, not to de-install the Equipment where Sensor Networks determines that it would not be financially viable to do so (for example, where the cost of de-installing the Equipment is higher than the value of the Equipment).

4.9.       If Sensor Networks confirms in writing that it has elected not to de-install the Equipment (for any reason other than that provided for in clause 4.7.1), risk and ownership in and to the Equipment will pass to the Client free of charge, with immediate effect.

 

5.           FEES AND PAYMENT

5.1.       The fees payable by the Client for the Services and the rental of the Equipment are as set out in the Quotation and consist of:

5.1.1.        an Installation Fee; and

5.1.2.        a monthly service fee (“Monthly Service Fee”) payable in advance on the 1st of every month following the Installation Date.

5.2.       The Monthly Service Fee is the standard rate charged by Sensor Networks to its clients for the Services and the use of the Equipment, and (along with the fee payable by Sensor Networks’ other clients) will, unless otherwise notified in writing by Sensor Networks, increase on the 1st of January each year following the Commencement Date by 10% (ten percent).

5.3.       The Client is responsible for the timely payment of the fees and other amounts owing to Sensor Networks in accordance with this Agreement via any of the following  payment methods, namely:

5.3.1.        credit card payment;

5.3.2.        direct debit; or

5.3.3.        in-app purchase.

5.4.       The Client authorizes Sensor Networks to process any payment owing to it by the Client under this Agreement (including the amounts referred to in clause 4.4, 4.7, 8.3 and/or 9.6, if applicable) via the chosen payment method.

5.5.       Sensor Networks uses a third-party payment processor (the "Payment Processor") to process payments made through the Platforms. The processing of these payments will be subject to the terms, conditions and privacy policies of the payment processor. Sensor Networks is not responsible for and gives no warranties or makes any representations in respect of the privacy policies or practices of linked or any third party or advertised web sites, including but not limited to its payment processor.

 

6.           EQUIPMENT INSTALLATION

6.1.       Sensor Networks shall install the Equipment at the Installation Address on the Installation Date, subject to payment by the Client of the Installation Fee.

6.2.       The Installation Fee shall be paid by the Client within 2 business days from delivery by Sensor Networks of an invoice therefore.

6.3.       Sensor Networks shall have no obligation to install the Equipment until the Installation Fee is paid in full.

6.4.       It is the Client’s obligation to ensure that the Installation Requirements are met, and that installation of the Equipment takes place no later than 30 (thirty) days from the Commencement Date, failing which Sensor Networks shall be entitled to cancel this Agreement on written notice to the Client, and will be entitled to retain the Installation Fee to cover the reasonable administrative costs incurred by it as a result of the Client’s failure to comply with the provisions of this clause.

6.5.       If the Client fails to ensure compliance with the Installation Requirements, or fails to ensure access by Sensor Networks or its representatives to the Installation Address on the date agreed to between the Client and Sensor Networks’ representative for this purpose, the Client will be charged the Installation Fee for each failed attempt at installation and for the actual installation.

6.6.       Where the Client is unable to provide Sensor Networks or its representatives with the required access to the Installation Address on the date agreed to between the Client and Sensor Networks’ representative then the Client will be entitled to cancel the scheduled installation by written notice to Sensor Networks, provided that the Client will be liable for the Installation Fee in respect of any cancellation which is made within 24 (twenty-four) hours from the scheduled installation date. The same applies for any de-installation in terms of this Agreement.

6.7.       The Client may contact support@sensornetworks.co.za for cancellations and/or for any queries in relation to the Installation Requirements.

7.           THE EQUIPMENT AND FIRMWARE

7.1.       Sensor Networks shall remain the owner of the Equipment at all times except in the circumstances referred to in clause 4.7 or clause 4.9.

7.2.       Sensor Networks retains full ownership of the Firmware, notwithstanding any transfer of ownership of the Equipment to the Client in accordance with clause 4.7.1 or 4.9.

7.3.       Sensor Networks may provide the Client with certain Firmware updates, upgrades or services. Some updates, upgrades or services may be provided automatically without notice to the Client and others may be available to the Client through the App, the Website or authorized channels.

7.4.       The Client consents to Sensor Networks providing the Client with these automatic updates, upgrades and services. Services may include the latest update or download of a new release of Firmware containing security patches, new technology or revised settings and features. These updates, upgrades and services may have effects on the functionality of the Equipment, and Sensor Networks is not responsible to the Client for any such effects or any harm caused by the installation process.

7.5.       The Client must install or have installed the most current version of Firmware as soon as the Client reasonably can.

 

8.           CLIENT’S REPRESENTATIONS, UNDERTAKINGS AND ACKNOWLEDGEMENTS

8.1.       The Client warrants (promises) that:

8.1.1.        they are authorised to enter into and give effect to this Agreement (which may require the Client to first obtain the consent of the landlord);

8.1.2.        they will not remove any notices, labels or warnings from the Equipment or its components and must obey all such notices, labels and warnings; 

8.1.3.        they will not do or cause or omit to be done anything that will cause damage to the Equipment (including through exposure to heat, liquid or moisture);

8.1.4.        they will comply with the Documentation;

8.1.5.        the Equipment will not be modified, adapted or tampered with in any way.

8.2.       Sensor Networks may insist that the Client services the Equipment from time to time, at Sensor Networks cost (if the request is made during the Warranty Period) or at the Client’s cost (if the request is made outside of the Warranty Period). The Client will cooperate with Sensor Networks in this regard, including the provision of access by Sensor Networks to its premises and the Equipment.

8.3.       Only service providers appointed by Sensor Networks may inspect, test or work on the Equipment and its components. Any callouts to fix the work of an unauthorised person will be for the Client’s account and will be payable upon presentation of an invoice therefore.

 

9.           WARRANTIES BY SENSOR NETWORKS

9.1.       Subject to the further provisions of this Agreement, Sensor Networks warrants that the Equipment and Firmware will not contain any Defects for the Warranty Period, which Warranty Period shall commence on the Installation Date.

9.2.       The warranty referred to in clause 9.1 above does not apply if the Equipment or Firmware:

9.2.1.        has been installed, de-installed, moved, repaired, altered, serviced or maintained by any person other than an authorized representative of Sensor Networks;

9.2.2.        has been subjected to abnormal physical or electrical stress, abnormal environmental conditions (including exposure to liquids or fluids), misuse, negligence, or accident;

9.2.3.        is used for any purpose other than the purpose for which the Equipment is reasonably designed, specified, supplied and/or intended by Sensor Networks;

9.2.4.        is damaged, lost or destroyed due to (a) the Client’s breach of any of its obligations or warranties under this Agreement (or where the same could have been avoided had the Client timeously complied with such obligations or warranties), (b) a force majeure event referred to in clause 14, (c) faulty geysers or geyser components, secondary geyser timers, ripple controllers, electrical supply issues, power surges or broken thermostats, whether arising before, at the time of, or after installation; or

9.2.5.        is otherwise lost, damaged or destroyed after installation.

9.3.       Where the Client institutes a valid warranty claim against Sensor Networks then Sensor Networks shall –

9.3.1.        repair or replace  the Equipment and/or Firmware at its option and expense; or

9.3.2.        terminate this Agreement.

9.4.       Sensor Networks shall have the right but not the obligation in either instance to de-install and collect the defective Equipment at its cost and expense.

9.5.       The remedy provided for in clause 9.3

9.5.1.        is conditional on the Client reporting the non-conformance in writing to Sensor Networks within 2 (two) months from the Client becoming aware of the Defect complained of; and

9.5.2.        is the Client’s exclusive remedy under the warranty provided for in clause 9.1.

9.6.       If Sensor Networks or its representatives is/are called out to inspect, repair or replace the Equipment or any of its components and the call-out is made outside of the Warranty Period (or within the Warranty Period but Sensor Networks or its representatives determine that the fault is not covered by the warranty referred to above), then the Client will be liable to pay Sensor Networks a call-out fee at the standard call-out rates quoted by Sensor Networks at the time, plus the cost of the materials required to fix the fault (or the cost of replacement Equipment, if necessary). 

9.7.       Save as aforesaid, Sensor Networks does not give any guarantee or warranty in regard to the performance, functionality or otherwise of the Equipment or Firmware.

 

10.         RELOCATION

10.1.     If the Client intends to move to a new premises within South Africa which is serviced by Sensor Networks, and intends to take the Equipment with them, then they will be required to contact Sensor Networks for purposes of:

10.1.1.      de-installing the Equipment;

10.1.2.      transporting the Equipment to the new premises; and

10.1.3.      installing the Equipment at the new premises.

10.2.     The costs for attending to the services referred to in clause 10.1 above will be quoted at the time by Sensor Networks and will be exclusively for the Client’s account. 

10.3.     If the Client moves to a new premises which is not within a jurisdiction serviced by Sensor Networks, or if the Client chooses not to take the Equipment with them, then the Client will be obliged to terminate this Agreement in accordance with clause 4.3 and the provisions of clause 4 shall apply to such termination.

 

11.         GEYSER OPERATION AND USAGE DATA

Where the Client makes use of the Smart Geyser Equipment, the Client consents to Sensor Networks:

11.1.     adjusting the settings on the geyser relating to when it draws power in order to (i) reduce reliance on grid electricity during peak usage periods, (ii) reduce the risk of load shedding; and

11.2.     providing other required or useful services to an electricity system.

 

12.         COLLECTION OF INFORMATION AND AUTHENTICATION

12.1.     In order to operate Sensor Networks’ business and to provide the Services, Sensor Networks is required to collect and retrieve information about the Client and the Equipment.

12.2.     Please refer to Sensor Networks’ Privacy Policy for further details on how this information will be used and who to contact in respect of queries.

 

13.         BREACH

13.1.     If the Client:

13.1.1.      commits a breach of this Agreement or the General Terms of Service which is capable of being remedied and fails to remedy the breach within 7 (seven) days from written notice of such breach by Sensor Networks; or

13.1.2.      commits a breach of this Agreement or the General Terms of Service which is not capable of being remedied,

then Sensor Networks shall forthwith be entitled, but not obliged, without prejudice to any other rights or remedies which it may have in law or in terms of this Agreement, including the right to claim damages –

13.1.3.      to cancel this Agreement;  or

13.1.4.      to claim immediate performance and/or payment of all the Client’s obligations in terms hereof.

13.2.     In the event that Sensor Networks elects to cancel this Agreement then it shall be entitled (without prejudice to any other rights) to claim the Termination Fee referred to in clause 4.4 in lieu of claiming damages.

 

14.         FORCE MAJEURE

Sensor Networks shall not be deemed in default or otherwise liable for any delay in or failure to provide the Services for any cause which is unforeseeable or beyond the reasonable control of Sensor Networks.

 

15.         LIMITATION OF LIABILITY

Save as set out in clause 9, Sensor Networks shall not be liable to the Client or any third party for any loss, liability, damage (whether direct or indirect, consequential or otherwise and whether for loss of profits, revenue, data or goodwill) or expense of any nature whatsoever which may be suffered by the Client or such third party as a result of or which may be attributable, directly or indirectly to a fault in the Equipment, the use by the Client of the Equipment and/or Firmware and the Client hereby indemnifies and holds Sensor Networks harmless from and against any claim of whatsoever nature which may be made against Sensor Networks arising out of the foregoing.

 

16.         INDEMNITY

The Client indemnifies Sensor Networks, its affiliates and subcontractors against any third party claims, damages or costs (including reasonable attorney's fees) caused by or attributable to the Client’s -

16.1.     acts or omissions;

16.2.     use of the Equipment; or

16.3.     breach of these Client-Specific Terms.

 

17.         GENERAL

17.1.     Sensor Networks may assume that all electronic communications and uploads which reasonably appears to originate from a Client are in fact from the Client and that the Client was authorised to send or upload the same.

17.2.     Sensor Networks may send alerts, notifications and other communications to the Client by way of SMS, email or other electronic delivery mechanisms and the Client consents to receive communications from Sensor Networks in any such manner.

17.3.     A certificate signed by any one of Sensor Networks’ directors will, unless the contrary is proven, be sufficient evidence of –

17.3.1.      the date of publication and the content of the Cient-Specific Terms and any amended terms;

17.3.2.      the date of publication and the content of earlier versions of the Client-Specific Terms; and

17.3.3.      the date and content of any communication and notifications sent in terms of the Terms.

17.4.     The Client’s rights and obligations under the Agreement may not be assigned. Sensor Networks may however cede and assign its rights and obligations under this Agreement.

17.5.     Sensor Networks does not waive its rights by delaying or failing to exercise them at any time.

17.6.     If any provision of these Client-Specific Terms are determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency the validity or enforceability of any other provision of these Client-Specific Terms shall not be affected.

17.7.     These Client-Specific Terms will be governed by the laws of the Republic of South Africa.

17.8.     No class action, or other representative action, joinder or consolidation of any claim with a claim of another person or class of claimants will be allowed.