- Summary of these Commercial Terms.
In these Commercial Terms, we set out the following important things:
1.1 useful definitions;
1.2 the rights and responsibilities applying to you (as a user) and us;
1.3 the Services that we provide;
1.4 privacy aspects;
1.5 legal recourse;
1.6 limitation of liabilities;
1.7 considerations regarding minors; and
1.8 our company information.
2. What are these terms?
2.1 These are the “Commercial Terms” that regulate your use of our Services, and our relationship to you. They create a legally binding contract between us as soon as they apply.
2.2 Our “Services” are those that are available on www.forgetyourkeys.com (“Website“) and through our mobile application (“App“) described as OPEN which can be acquired on the Apple App Store or Google Play Store. Our Services may also be available through future channels to which these Commercial Terms will also apply.
2.3 Whenever we use “quotation marks” we do so to define a word or phrase to keep this document as short and clear as possible.
3.1 “Account Owner” and/or “Administrator” means the person who is subscribing to the services and contracting with the Company;
3.2″Account” means your account with us, reflecting your subscription, the Devices linked to the account and the Connectors used by you.
3.3 Additional User(s)” means those persons who are authorised by the Account Owner to use the Account for specific purposes as further described in these Terms;
3.4 “Customer” means any user of our Services, whether as an Account Owner, Administrator, Guest User or Additional User;
3.5 “Connectors” means the hardware installed by the Partners enabling you to use our Services, including, but not limited to, GSM devices and the Arduino system;
3.6 “Devices” means the doors, gates, entryways and alarm systems controlled by the Services;
3.7 “Guest User(s)” means those persons who are authorised by the Account Owner to use the Account for a limited period for specific purposes as further described in these Terms;
3.8 “Intermediary Services” include, but are not limited to, all alarm system related services, status updates of linked systems, sim card management, and management of the Connectors;
3.9 “Partners” means trusted third parties with whom you contract in order to have the required Connectors installed;
3.10 “Subscription Package” means the type of membership that you have subscribed for; and
3.11 “the Company” means Never Settle Proprietary Limited (Registration no. 2015/345786/07).
4. When do these Commercial Terms apply?
4.1 These Commercial Terms will apply the instant you become a Customer of ours.
4.2 You can become a Customer through the following:
4.2.1 the moment you agree to the Terms by registering on the Website and/or the App;
4.2.2 by clicking the tick box accepting these terms on the Website;
4.2.3 by downloading the App; or
4.2.4 by using any Service from us as a Customer.
4.3 To make use of or buy any of our Services you need to agree to and comply with these Commercial Terms. We reserve the right to refuse any request for our Services without notice or reason.
4.4 Delivery of the services will be subject to receipt of the payments as per the subscribed fees in Annexure A. Upon receipt of the payment, the subscription request will be activated within a 24 hour period and delivery will be confirmed by email notification.
5. Other applicable terms
6. Changes to these Commercial Terms.
6.1 We may:
6.1.1 change or add to any of these Commercial Terms;
6.1.2 change, cancel the Services; or
6.1.3 offer new Services to you from time to time, at our discretion, and we will notify you of any changes when you next access the Website and/or App.
6.2 Notice of changes: we will give you 15 days’ notice of a change. Should you not wish to comply with such changes you can discontinue using the Services and our Website/App.
6.3 If you disagree with any changes, but you have already started to use our Services, then we can together agree formally in writing that the previous Commercial Terms or alternative terms will apply until our commercial relationship is terminated. Otherwise, the new, changed Commercial Terms will apply from the day they take effect.
6.4 The alternative terms mentioned in clause 3 above will be terms that the Customer has set up and negotiated with the Company at its cost.
7. Duration of these Commercial Terms.
Simply, these Commercial Terms apply for as long as you are a Customer and use our Services, the Website and/or the App.
8.1 At any time, and without cause, we may cancel or terminate your access to our Website, App and/or our Services or your Subscription in our sole discretion, without any liability.
8.2 Violation of the Acceptable Use Policy (clause 19 below) may result in the termination of your access to the Website and/or App. It is therefore important that you familiarise yourself with the Acceptable Use Policy.
8.3 You may cancel your Account/Subscription with us. However, you will not receive a refund of any amounts already paid if you cancel your subscription.
8.4 These Commercial Terms will continue to apply to your use of the Services for the remainder of your subscription period.
8.5 Importantly, all our rights in respect of the confidentiality undertakings and our limitation of liability set out below will survive the termination of the Commercial Terms.
9. The Services.
The Services comprise the following:
9.1 electronic controlled access to Devices connected to the Connectors;
9.2 additional sub-accounts for various users of one Account, including accounts for Guest Users and Additional Users; and
9.3 Intermediary Services if subscribed to, including, but not limited to:
9.3.1 access to alarm system functionality;
9.3.2 instant updates as to the status of each connected Device;
9.3.3 administration of the functioning of the Connectors; and
9.3.4 other Intermediary Services relating to the Connectors.
10. Excluded from the Services.
10.1 We will not:
10.1.1 install or provide any Connectors required to enable you to make use of the Services;
10.1.2 be responsible for the actions of Partners who install and maintain the Connectors;
10.1.3 be responsible for managing the intermediary services unless expressly appointed to do so by you; and
10.1.4 be responsible for ensuring that the Services function properly should your Connectors fail to function properly, due to the fault of yourself or a Partner, unless you have appointed us to provide you with Intermediary Services.
10.2 You are responsible for:
10.2.1 appointing a Partner to install the Connectors required to enable you to make use of the Services;
10.2.2 ensuring that the Connectors are maintained (for example, sim cards in GSM devices having a positive airtime balance and other electronic devices having an active internet connection) in order for you to continue using the Services, unless you appoint us to manage this for you;
10.2.3 keeping your account safe by protecting your login details and only providing access to persons you trust; and
2.10.4 requesting a free trial period of 15 (fifteen) days.
10.3 We will not be liable for any claims whatsoever arising from:
10.3.1 system failure due to problems encountered with the physical working of the Connectors which were installed by a Partner;
10.3.2 system failure due to problems arising from the Connectors not being able to connect to our servers, such as, for example, a data connection problem or a sim card’s funds having depleted; and
10.3.3 an unauthorised third party accessing your property as a result of a theft of your access device or logon details.
10.4 BEWARE! You use our Services at your own risk.
11. The fees.
11.1 The fees payable by you for the use of our Services are set out in Annexure A.
11.2 Remember, our fees can change, or we can add fees, at our discretion. However, changes to the fees will not affect you until you agree to those changes.
12. Payment generally.
These points in respect of fees are (also) important:
12.1 card transactions will be acquired for the Company via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.
12.2 payment may be made via Visa, MasterCard, Diners or American Express Cards or by bank transfer into the Company’s bank account, the details of which will be provided on request.
12.3 customer details will be stored by the Company separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za.
12.4 the Company takes responsibility for all aspects relating to the transaction including sale of goods and services sold on the website or mobile application, customer service and support, dispute resolution and delivery of goods.
12.5 you will be required to provide your billing details to an authorised third party payment merchant before you will be allowed to use our Services. You hereby ensure that the information you provide is true and accurate, and that you are authorised to use those billing details to make the payment of our fees. You will only be authorised to use the Services once your payment details have been validated by the authorised third party payment merchant and/or your first payment to us has been made successfully;
12.6 the merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction currency is South African Rand (ZAR).
12.7 if our fees are described in a different currency to that which you use, the payment will be charged at the prevailing exchange rate to settle the outstanding fee as per Appendix A to which the User have subscribed too;
12.8 if you fail to make any payment when payment is due, we reserve the right to suspend your use of our Website, App and/or Services and your Account will be suspended until all fees are settled in full; and
As a result of this being a subscription service, you will be responsible for the payment of:
13.1.1 the monthly subscription fee; and
13.1.2 the monthly fee for Intermediary Services, if applicable.
13.2 You will also be liable for all fees due to Partners, which is separate from your relationship with us.
13.3 All Fees shall be paid by way of electronic funds transfer, free of any deduction or set-off, into the bank account as set out in our invoice or via an authorised third party payment merchant.
13.4 Your subscription to the Services will be on a month-to-month basis, running from the first to the last day of each calendar month, in perpetuity, until the Services are cancelled, subject to clause 5 below.
13.5 Should you subscribe to the Services during the course of a calendar month, your fees for this first month will be calculated pro-rata, based on the number of days that you access the Services.
13.6 You may terminate your subscription at any time by cancelling your subscription via your account in the Website or App before midnight on the last day of the month. Our rights to terminate are set out below in these Commercial Terms.
13.7 The monthly subscription fee for your use of the Services shall be for an amount as described in Annexure A. The monthly subscription fee may change from time to time, subject to us providing you with 30 (thirty) days’ notice of such change.
13.8 No refunds, pro-rata or otherwise, will be given for Services paid for in advance.
13.9 Your monthly subscription Fees shall be payable by way of a recurring payment until the Services are terminated/cancelled via your account in the Website or App. Refer to section 8.
14. Promotional codes and vouchers.
14.1 We may, at our discretion, make promotional codes and vouchers available to you, the Account Owner/Administrator, providing a discounted Fee.
14.2 The promotional codes and vouchers will be distributed for free by us and will be strictly enforced regarding any expiry date linked to such promotional code or voucher.
14.3 Should a voucher be purchased from us, the voucher will be valid for a period of 3 (three) years, from date of purchase or as otherwise stated on such voucher, in terms of section 63 of the Consumer Protection Act, 68 of 2008, after which the voucher will expire and be considered null and void.
15.1 Refunds of purchases will not be granted.
16. Login details, usernames and passwords.
16.1 Our Website and/or App makes use of login functionality requiring you to create an account, using your email address, cellphone number, password, pincode and/or biometric information by way of finger prints as authentication (“Access Credentials“).
16.2 You are solely responsible for the safekeeping of these Access Credentials. This means that should anyone enter your Access Credentials (whether that be you, your employees, your spouse, etc.), we assume that the person using the Services is you or has permission to use your account.
16.3 It is in your interests to familiarize yourself with our security requirements, guidelines and procedures communicated by us from time to time, and follow these carefully.
16.4 Inform us immediately if there has been, or if you suspect, any breach of security or confidentiality.
16.5 Where you are a business, you and your employees have the same responsibilities and we have the same rights – though we expect that you will be somewhat more diligent than these bare minimum rules.
17. Additional Users of your Account.
17.1 You, the Account Owner/Administrator, may authorise Additional Users to use the Services through your Account.
17.2 The number of Additional Users that may be authorised per month is dependent on the Subscription Package subscribed for by you, the Account Owner/Administrator, as set out in Annexure A.
17.3 Functionality assigned to each Additional User will depend on that which the Account Owner/Administrator assigns to each Additional User. For example, Additional User 1 may have access to all Devices linked to your Account and Additional User 2 might only have access to one specific Device linked to your Account.
17.4 Employees will be regarded as Additional Users for the purposes of these terms.
18. Guest Users of your Account.
18.1 You, the Account Owner/Administrator, may authorize Guest Users to use the Services through your Account.
18.2 The extent and duration of control that Guest Users have will be determined by you, the Account Owner/Administrator.
18.3 The number of Guest Users that may be authorised per month is dependent on the Subscription Package subscribed for by you, the Account Owner/Administrator, as set out in Annexure A.
Should you appoint us to manage Intermediary Services as part of your Subscription, we will assume the role of Administrator on your Account. As an Administrator we will have access to your Account but we will not be able to control any of the Devices linked to your Account.
20 Acceptable use policy.
20.1 Not all electronic devices may support the use of our Services. It is your responsibility to keep your electronic device(s) (including computers, cellphones, tablets, and GSM and other electronic devices) updated and/or in a condition for them to support the use of our Services.
20.2 The use of our Services may be restricted to certain geographical areas. It is your responsibility to determine whether your location is supported by our Services before incurring any liability to us as we will not be liable for any loss that you may incur because of our Services not being supported in your location.
20.3 You must respect our Website and App and our intellectual property in the best of good faith, and use it only as we intend it to be used. Any use by you of our Website, App, and/or Services which violates this undertaking can result in us terminating your use of our Website, App, and/or Services. We will be the sole judge of what constitutes a violation of your undertaking to use our Website and/or App in the best of good faith, but these will likely be good grounds, such as:
20.3.1 copying or distributing any of the content;
20.3.2 providing any untrue or incorrect information to our Website, App and/or our Services;
20.3.3 changing, modifying, copying, decompiling, circumventing, disabling, tampering with or any part of our Website, App and/or Services, including their security features or reverse engineering our Website, App and/or our Services;
20.3.4 infecting our Website and/or App with any software, malware or code that may infect, damage, delay or impede the operation of our Website and/or App or which may intercept, alter or interfere with any data generated by or received through our Website, App and/or the Services;
20.3.5 using malicious search technology, including, but not limited to, spiders and crawlers;
20.3.6 deep linking to any pages of our Website, App and/or Services in a way to suggest that you are the owner of any intellectual property in our Website, App and/or Services;
20.3.7 using the interactive sections of our Website, App and/or Services, to post any material which, in our discretion, is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violates any laws; or
20.3.8 allowing any third party to use your Access Credentials in any manner other than as permitted by these Commercial Terms.
21. Consent required for minors
21.1 We assume that by you being granted Access Credentials you are 18 (eighteen) years or older or have had a parent or guardian give consent on your behalf to use our Website, App and/or Services.
21.2 We accept no responsibility for invalid consent being provided by the users of our Website, App and/or Services.
21.3 In addition to the above clauses 1 and
21.2 where you, as the Account Owner/Administrator, allow minors access to your Account, either as a Guest User or Additional User, you agree that the minor is allowed to make use of the Website, App and/or Services.
22.2 We are committed to taking steps to protect your privacy when you use our Website, App and Services. We implement business practices that comply with all relevant legislation, including the Protection of Personal Information Act, 4 of 2013 (“POPI“).
22.3 When we refer to “Personal Information” or “Information“, we mean Personal Information as defined in POPI. It includes, for example, your full name, surname, email address, identity number, contact details, and location.
22.4 We also implement appropriate technical and other security measures to protect the integrity and confidentiality of your Information. We protect and manage Information that we hold about you by using electronic and computer safeguards such as firewalls, data encryption, and physical and electronic access control to our buildings. We only authorise access to Information to those employees who require it to fulfil their designated responsibilities.
22.5 We may transfer your Information to foreign countries mainly for retention purposes or if our service providers are cross border or use systems cross border. If you continue to use our Website, App and/or Services, you expressly agree that we may transfer the Information cross border for these purposes. We will only share Information cross border with recipients who have similar data protection laws, such as POPI, or who have entered into agreements with us agreeing that the POPI principles apply to them.
22.6 We may track your use of our Website, App and/or Services for a number of purposes. Information obtained about you in this regard will not be shared or used in violation of these Commercial Terms or any applicable laws. Should you wish to have any Information about you in this regard depersonalised, you have the right to request us to do so, however, this may result in you not receiving the full benefit of our Website, App and/or Services.
22.7 We will provide you with Access Credentials in accordance with clause 16. It is however your responsibility to keep your Access Credentials secure. Your Access Credentials will receive the same security measures as all other Information held by us.
22.8 Any Personal Information that we may have of yours will only be published in so far as is required by the Services and in accordance with the requirements of the laws of South Africa.
22.9 We will keep your Personal Information confidential and only share it with others in terms of these Commercial Terms, if you consent to it or if the law requires us to share it. We have trusted relationships with carefully selected third parties who perform services for us. All these third party service providers have a contract with us in terms whereof they have a legal obligation to secure your Personal Information and to use it only in a way that we permit.
22.10 If you believe we are using your Information unlawfully, please contact us at firstname.lastname@example.org. If you have no success in this regard, you may lodge a complaint to the Information Regulator, the contact details of which are provided below in clause 33.
23. Deemed rules for sending and receiving electronic messages.
We will primarily use email and electronic notices on the Website and/or App as our main communication tool for all communications relating to our Services and/or these Commercial Terms. This may include the use of SMS (short message services), push notifications and email.
24. Third party sites.
24.1 We may provide certain hyperlinks to third party websites or apps only as a convenience, and the inclusion of any hyperlinks or any advertisement of any third party on our Website and/or App does not imply endorsement by us of their websites or apps, their products, business or security practices or any association with its operators.
24.2 If you access and use any third party websites, apps, products, services, and/or business, you do that solely at your own risk.
25. Intellectual property rights.
25.1 All our intellectual property belongs to us. This means that you absolutely agree that all right, title and interest in, and to, any of our intellectual property (in its widest possible, legal and commercial sense) is proprietary to us, and will remain so.
25.2 You will not acquire any rights of any nature in respect of that intellectual property by using our Services.
26. Warranties and representations.
26.1 We give no guarantee of any kind concerning the content or quality of our Services. We do not give any warranty (express or implied) or make any representation that our Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose.
26.2 We make no representations to you, either express or implied, and we will have no liability or responsibility for the proper performance of the Website, App and/or Services and/or the information, images or audio contained on the Website and/or App. Our Services are used at your own risk.
26.3 You warrant to and in favour of us that:
26.3.1 you have the legal capacity to agree to and be bound by these Commercial Terms; and/or
26.3.2 you are 18 (eighteen) years or older; and
26.3.3 these Commercial Terms constitute a contract valid and binding on you and enforceable against you.
26.4.Each of the warranties given by you will:
26.4.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Commercial Terms;
26.4.2 continue and remain in force irrespective of whether your account is active, suspended or cancelled; and
26.4.3 be deemed to be material.
If any part of these Commercial Terms becomes illegal, invalid or unenforceable in any jurisdiction affected by these Commercial Terms, then those illegal, invalid or unenforceable provisions will be severed from these Commercial Terms (they will be treated as if they don’t exist), and the remaining provisions of these Commercial Terms will continue as valid and enforceable.
You may not circumvent our Website and/or App to avoid paying our fees. We have the discretion to remove you from the Website and/or App or cancel/suspend your subscription if we suspect that you are circumventing our Services.
29. Limited liabilities.
To be clear:
29.1. we will not be liable to you for any loss caused using our Website, App and/or Services or your liability to any third party arising from those subjects. This includes:
29.1.1 any interruption, malfunction, downtime, off-line situation or other failure of the Website and/or App, system, databases or any of its components;
29.1.2 any loss or damage regarding your data or other data directly or indirectly caused by malfunction of the Website and/or App; and
29.1.3 any third party systems whatsoever, including the Connectors, power failures, unlawful access to or theft of data, computer viruses or destructive code on the Website and/or App or third party systems or programming defects;
29.2 we will not be liable if any material available for downloading from the Website and/or App is not free from infection, viruses and/or other code that has contaminating or destructive properties;
29.3 our Website and App may include inaccuracies or typo’s – in that case, we can’t be held liable and can’t be forced to comply with offers that are genuinely (and/or negligently) erroneous;
29.4 we are not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt. Security measures have been implemented to ensure the safety and integrity of our Services. However, despite this, information that is transmitted over the internet may be susceptible to unlawful access and monitoring; and
29.5 finally, our limited liability applies to all and any kind of loss which we can possibly contract out of under law, including direct, indirect, consequential, special or other kinds of losses or claims which you may suffer.
30. Applicable law and disputes.
30.1 All this is governed by South African law, including the Website and App and any interaction you may have with them regardless of what country you are based in, or the country where you access the Website and/or App or the country where you receive or use our Services.
30.2 Please take note that, if you access the Website and/or App from another country, you will bear sole responsibility for complying with that country’s laws.
30.3 If we ever have a dispute, then you agree that the High Court of South Africa (Western Cape Division, Cape Town) will have sole jurisdiction to consider our dispute, applying these Commercial Terms and South African law.
31. Force majeure.
Except for the obligation to pay monies due and owing, neither you nor we shall be liable if either of us cannot perform in terms of any agreed terms due to reasons beyond our control. This includes lightning, flooding, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for which we are not responsible, and acts of government or other competent authorities (including telecommunications and internet service providers).
32. Disclosure in terms of section 43 of Electronic Communications and Transactions Act, 25 of 2002.
32.1 Site owner: Never Settle Proprietary Limited (trading as “Never Settle“), registration number 2015/345786/07.
32.2 Legal status: Never Settle is a private company, duly incorporated in terms of the applicable laws of South Africa.
32.3 Directors: Jacquis Ricus Tolsma.
32.4 Description of the main business of Never Settle: Information Technology based consumer services.
32.5 Email address: email@example.com
32.6 Contact Number: +27 87 551 7735
32.7 Website address: www.forgetyourkeys.com
32.8 Physical and registered address: 62 Charterland Avenue, Selcourt, Springs, Gauteng, 1559.
32.9 Postal address: PO Box 11319, Selcourt, Selcourt, Gauteng, 1567.
33. Information Regulator contact details.
33.1 Website: http://www.justice.gov.za/inforeg/index.html
33.2 Physical address: SALU Building, 316 Thabo Sehume Street, Pretoria
33.3 Contact number: 012 406 4818
33.4 Fax number: 086 500 3351
33.5 Email: firstname.lastname@example.org
Details of Subscription Packages:
|Devices (gates, doors, garages)
|Users allowed per device
|Guest entries per month
||Email and Phone
||Email and Phone
||R2 500/ month
Details of Intermediary Services:
To be set out under separate cover.