These Terms and Conditions (incorporating our Privacy Policy) (“Terms”) govern your use of our website (www.ai-monitor.co.za) ) (“Website”) as well as any products or services we may offer from time to time (collectively the “Services”). About us: We provide offsite CCTV monitoring solutions for clients to link their new or existing CCTV to our offsite control room, which is monitored by our smart detection technology (our “Services”). The Services and the Website are provided by AI Monitor (Pty) Ltd
If you leave a comment on our site you may opt-in to saving your name, email address and website in cookies. These are for your convenience so that you do not have to fill in your details again when you leave another comment. These cookies will last for one year. If you visit our login page, we will set a temporary cookie to determine if your browser accepts cookies. This cookie contains no personal data and is discarded when you close your browser. When you log in, we will also set up several cookies to save your login information and your screen display choices. Login cookies last for two days, and screen options cookies last for a year. If you select “Remember Me”, your login will persist for two weeks. If you log out of your account, the login cookies will be removed. If you edit or publish an article, an additional cookie will be saved in your browser. This cookie includes no personal data and simply indicates the post ID of the article you just edited. It expires after 1 day. Please read carefully before using our Website or using our Services. Content: The content provided on the Website is for information purposes only and should not be considered an offer or advice. Content: The content provided on the Website is for information purposes only and should not be considered an offer or advice. Users: “you”, “the Client” means any person who accesses or uses our Website or our Services. You must be at least 18 years old to use our Services. Acceptance: By using the Website or our Services, you are accepting these Terms, and you represent and warrant that you have the right, authority, and capacity to enter into these Terms. If you do not agree with all of the provisions of these Terms, you must not access or use the Website. Online Queries: By completing and submitting an online form, you are inviting us to engage with you in order to ascertain whether or not you are interested in our Services and to provide you offers and information relation to our Services. However, please note that you will need to enter into our standard services agreement before we will provide any Services to you.
Specific Conditions for Services:1. Goods and Services1.1 This Agreement shall provide for the provision of services by AI Monitor to the Client as listed in the Quotation (“the Services”) and/or any hardware rented (“Rented Hardware”), as the case may be.1.2 The Client undertakes to accept the provision of the Services by AI Monitor to the Client, as follows:1.2.1 Rented Hardware will always be owned by AI Monitor, notwithstanding that the Goods have been delivered to the Client.1.2.2 The Client shall be responsible for ensuring that the Goods are used in accordance with the manufacturer’s product usage directives which will be supplied by AI Monitor to the Client on delivery.2. Commencement and Duration of Services2.1 The Client requires AI Monitor to provide the Services to the Client, which Services shall commence on the date stipulated (“the commencement date”) and shall endure for the number of months specified (“the Initial Term”).2.2 The Services will be provided by AI Monitor at the Premises specified by the Client in writing (“the Premises”).2.3 Upon expiration of the Initial Term, the Service shall automatically renew on the same Terms and Conditions and for the same number of months as the Initial Term, unless either Party provides the other Party with no less than 30 days written notice, before expiration of the Initial Term, of such Party’s intention not to renew.2.4. Unless Rented Hardware, in the event of gross negligence the Client is entitled but not obliged to cancel the services with 1 calendar month notice. 3. AI Monitor Obligations3.1 AI Monitor undertakes to supply the client with reports on incidents occurring during the provision of the Services as specified by the Client in writing from time to time, the frequency of reporting, may be altered, after a process of consultation between the Parties.3.2 AI Monitor will comply with the requirements of the Private Security Industry Regulatory Authority (“PSIRA”)4. Client’s obligations4.1 The Client undertakes to supply an adequate lockable room or gatehouse on the Premises where AI Monitor personnel, its representatives and/or agents, can attend to administrative functions and/or store the Goods as well as working tools.4.2 The Client shall provide AI Monitor, its representatives and/or agents, with access to the Premises as well as access to relevant books and/or all information and/or drawings required by AI Monitor and shall allow AI Monitor to interview and take statements from its employees and/or agents during reasonable business hours and by mutual agreement during weekends and public holidays.4.3 No incident on the Client’s Premises will be recognized or considered unless within 3 (three) working days of the incident, the Client delivers to AI Monitor a written notice setting out in detail the incident and all the relevant facts relating thereto.4.4 The Client appoints AI Monitor with authority to dispatch security services on behalf of the Client, not limited to their security guards and/or armed response (“Security Resources”), in the event of any person committing or suspected of committing any criminal offence on or around the Premises, not limited to when a camera and/or site goes down, also being deemed a security risk.4.5 The Client hereby authorises AI Monitor or its personnel, in accordance with the provisions of Section 42(3) of the Criminal Procedure Act, No 51 of 1977, to arrest any person found committing or suspected of committing any criminal offence on the Premises. The Client hereby indemnifies AI Monitor, it’s agents, employee’s or any other person for whom AI Monitor may be liable in law, against any claim against AI Monitor arising out of any arrest effected on the instruction of the Client, or its employees or agents, of whatsoever nature and however arising.5. Limitation of Liability5.1 The Client hereby acknowledges that the Services provided by AI Monitor are provided as a deterrent to the commission of criminal activity at the Premises and are not intended as a preventative measure in respect of such activity.5.2 The Client further acknowledges that the Services are not intended to constitute or replace an insurance policy and it is hereby recorded that no warranty of whatsoever nature is provided by AI Monitorl in relation to any goods provided or services rendered by AI Monitor to the Client. The Client acknowledges and understands that the prices quoted for the Services rendered in terms of the Agreement, do not include any cost of insurance cover in respect of any loss and/or damage of whatsoever nature. The Client hereby warrants that it has procured and will maintain a comprehensive insurance policy in respect of any loss and/or damage which may arise as a result of or in connection with this Agreement or any other business relationship with AI Monitor.5.3 The Client acknowledges and agrees that AI Monitor will not be held liable for any act or omission whatsoever by AI Monitor, its staff, agents or employees, whether such act or omission is negligent or not and the Client hereby indemnifies Ai Monitor, against any direct, indirect, incidental, special, punitive, or consequential damages, or damages for loss of profits, revenue or any other damage of whatsoever nature incurred by the Client or any third party, arising from such act or omission or in connection with any contract or relationship (including but not limited to this Agreement) between AI Monitor and The Client.5.4 If AI Monitor is utilizing the Clients existing equipment to provide the Services, it is acknowledged that AI Monitor cannot guarantee the reliability and effectiveness of the existing equipment supplied by the Client. In this regard, the Parties agree that AI Monitor shall not be held liable for the performance and any detection deficiencies caused by or due to the failure of CCTV equipment that is not supplied by AI Monitor.6. Payment6.1 The Services provided by AI Monitor to the Client, shall be provided on a monthly basis for which the Client agrees to effect payment to AI Monitor monthly in advance, on the first day of each Calendar Month (“the Payment Due Date”) by EFT otherwise by debit order.6.2 Should the Client fail to effect payment to AI Monitor on the Payment Due Date, then all the amounts owing by the Client to the AI Monitor shall become immediately due and payable and AI Monitor may, without prejudice to any right it may have in law, claim the full amount outstanding from the Client.6.3 In the event of the Client failing to effect payment of monies due to AI Monitor in terms of this Agreement AI Monitor shall in addition to 6.2 above, be entitled to:6.3.1 charge interest on all amounts not paid by the Client on the Payment Due Date at the rate of 2% (two per cent) above the Prime Rate of interest quoted by the Standard Bank of South Africa (“Interest”); and6.3.2 remove the Goods from the Premises, in the event that the Goods have not been paid for in full; and6.3.3 suspend the provision of all further Services pending receipt of payment by the Client;6.3.4 Any variation or suspension of work for whatever reason, or the variation or suspension of the installation of Goods, or the deferment of Services ordered, whether Rented Hardware or not, shall entitle AI Monitor to recover from the Client any costs incurred as a direct or indirect result of such suspension or variation.7. Escalation The prices quoted in the Quotation will be increased yearly in accordance with a standard annual escalation of 10%, unless at any stage of this agreement the annual rate of the Consumer Price Index increase to an annualized level of more than 15% (fifteen percent) per annum, then the parties shall renegotiate the Rate and adjust it to a rate mutually agreed upon by the parties, subject to 30 (thirty) days written notice prior to the increase taking effect. Licence: We grant you a limited non-exclusive, non-transferable licence to use the Website, subject to your compliance with the Terms. This license may be terminated by us for any reason and at any time without prior notice. Restrictions: You may not yourself or through a third party use the Website or Services for harmful, unlawful or illegal purposes. You agree not to access or attempt to access any part of the Website or Services by any means other than through the interface provided by us. You may not intercept, monitor, damage or modify any communication of any user of the Website or Services for any reason whatsoever. You may not do anything that would compromise the security or integrity of the Website or the Services. You will not engage in any activity that interferes with, or disrupts, the Website or the servers and networks that host these. You may not use data mining, robots, screen scraping or similar data gathering and extraction tools on the Website or the Services. Further, you may not decompile, disassemble or reverse engineer any portion of the Website or Services. Content: We make no warranties or representations with respect to any content provided on the Website or otherwise in relation to the Services. Intellectual Property: All intellectual property rights (including copyright, moral rights, trade marks, patents or designs) in relation to the Website and the Services (“IP”) are owned by us and are therefore protected by both South African and international intellectual property laws. Accordingly, any unauthorised copying, reproduction, re-transmission, distribution, dissemination, sale, publication, broadcast or other circulation or exploitation of the IP or any part thereof will constitute an infringement of such IP rights. WARRANTIES:
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE OR THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS AND PRODUCTS INCLUDED THEREIN. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE WEBSITE, THE SERVERS, OR E-MAILS SENT FROM US ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE WILL NOT BE LIABLE IN ANY WAY FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE WEBSITE OR THE SERVICES IN ANY MANNER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. INDEMNITY AND LIMITATION OF LIABILITY:IN ADDITION TO ANY OTHER INDEMNITIES PROVIDED IN THESE TERMS, YOU HEREBY UNCONDITIONALLY AND IRREVOCABLY INDEMNIFY US, OUR AFFILIATED COMPANIES, OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES AND AGREE TO HOLD US FREE FROM ALL LOSS, DAMAGES, CLAIMS AND/OR COSTS, OF WHATSOEVER NATURE SUFFERED OR INCURRED BY US OR INSTITUTED AGAINST US FOR ANY REASON WHATSOEVER, WHETHER THE CLAIM OR ACTION ARISES FROM DELICT OR CONTRACT, OR ANY INFRINGEMENT OF WHATSOEVER NATURE, ARISING OUT OF OR PURSUANT TO YOUR USE OF THE WEBSITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL LOSS, DAMAGES, CLAIMS AND/OR COSTS SUFFERED OR INCURRED BY US OR INSTITUTED AGAINST US AS A DIRECT OR INDIRECT RESULT OF YOUR USE OF THE WEBSITE OR SERVICES, AND SUCH INDEMNITY SHALL EXTEND TO THE REASONABLE COSTS THAT MAY BE INCURRED BY US IN DEFENDING ANY ACTION (OR THREATENED ACTION) AGAINST US.
YOUR USE OF THE WEBSITE AND THE SERVICES IS ENTIRELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM THE USE THEREOF. WE DO NOT ACCEPT LIABILITY THAT MAY ARISE IN CONNECTION THEREWITH.
IN NO EVENT SHALL WE, OUR DIRECTORS, EMPLOYEES, OFFICERS, SERVICE PROVIDERS OR SUBSIDIARIES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE WEBSITE OR THE SERVICES OR THE TERMS AND CONDITIONS (HOWSOEVER ARISING, INCLUDING BUT NOT LIMITED TO NEGLIGENCE). ONLINE PRIVACY POLICY Introduction: By using the Website and/or using the Services you will be required to provide us with certain personal information. This privacy policy (the “Privacy Policy”) sets out the information disclosed to us and how we will use it. Personal information: We gather the following information about you: (i) Information you give us when you use the Website or Services, including your names, address, contact number, email address, location and related personal information; (ii) information obtained via Cookies; and (iii) information obtained via email, telephone call or other communications with you. Purpose: We use the information you provide us in order to:
1. INTERPRETATION AND PRELIMINARY
1.1 The following terms shall have the meanings assigned to them hereunder
and cognate expressions shall have corresponding meanings, namely –
1.1.1 "the/this Agreement" means the agreement contained in this
document together with the Subscriber Application Form and all
schedules and addenda to this agreement when necessary;
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1.1.2 "AI Monitor" means AI MONITOR, registration number
2022/731821/07;
1.1.3 "Authority" means the Independent Communications Authority of
South Africa or its successor in title;
1.1.4 "Charges" means Installation Charges, Monthly Access Charges, and all
other charges payable for the provision of the Services or Interim
Services;
1.1.5 "Commencement Date" means the date of activation of the Services;
1.1.6 "Connection Charge" means the charge payable by the Subscriber to AI
MONITOR for connecting the Equipment to the System, or the charge
for registering the Subscriber for use of the Services or Interim Services;
1.1.7 "Deposit" means the deposit payable by the Subscriber to AI
MONITOR;
1.1.8 "Equipment" means electronic communications connections or any
other facility or equipment that provides the Subscriber with access to
the Services or Interim Services;
1.1.9 "Initial Period" means the initial period of the Services set out in the
Subscriber Application Form or, in relation to any additional service,
upgrade or relocation requested by the Subscriber after the
Commencement Date, the Initial Period in respect thereof referred to in
clause 2.3, provided that, unless otherwise specified in the Subscriber
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Application Form, the Initial Period is a period of 24 months calculated
from the Commencement Date or the Deemed Commencement Date;
1.1.10 "Interim Services" means pending activation of the Services, the
temporary provision of services as set out in the Subscriber Application
Form;
1.1.11 "Interim Services Commencement Date" means the date of activation
of the Interim Services;
1.1.12 "Interim Services Period" means the period from the Interim Services
Commencement date until the Commencement Date;
1.1.13 "Monthly Access Charge" means the monthly charge payable by the
Subscriber to AI MONITOR to provide the Subscriber with access to the
Services or Interim Services;
1.1.14 "Payment Terms" means the payment terms as set out in the
Subscriber Application Form;
1.1.15 "Pre-paid" means payment is made in advance;
1.1.16 "Signature Date" means the date of signature of this Agreement by the
Party signing last in time;
1.1.17 "Subscriber" means the subscriber whose particulars are set out in the
Agreement;
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1.1.18 "Subscriber Premises" will mean the premises of the Subscriber where
the Equipment must be installed where applicable; and
1.1.19 "System" means the electronic communications system operated by AI
MONITOR through which the Services or Interim Services are made
available by AI MONITOR to the Subscriber.
1.2 When any number of days is prescribed in this Agreement, same shall be
reckoned exclusively of the first and inclusively of the last day unless the last
day falls on a Saturday, Sunday or public holiday, in which case the last day
shall be the next succeeding day which is not a Saturday, Sunday or public
holiday;
1.3 Expressions defined in this Agreement shall bear the same meanings in
schedules, addenda or annexures to this Agreement which do not
themselves contain their own definitions.
1.4 The expiration or termination of this Agreement shall not affect such of the
provisions of this Agreement as expressly provide 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.
1.5 The rule of construction that this Agreement shall be interpreted against the
Party responsible for the drafting or preparation of this Agreement, shall not
apply.
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1.6 The headings of the clauses in this Agreement are for the purpose of
convenience and reference only and shall not be used in the interpretation
of, nor modify nor amplify the terms of this Agreement nor any clause
hereof.
1.7 An expression which denotes:
1.7.1 any gender includes the other genders;
1.7.2 a natural person includes a juristic person and vice versa;
1.7.3 the singular includes the plural and vice versa;
1.7.4 a Party includes a reference to that Party's successors in title and
assigns allowed at law.
2. DURATION
2.1 In the event that the Subscriber subscribes for Interim Services, this
Agreement shall commence on the Signature Date, and, unless terminated in
accordance with any other provision of this Agreement, shall endure:
2.1.1 from the Interim Services Period until the Commencement Date; and
2.1.2 after the Commencement Date this agreement shall endure for the Initial Period
and thereafter indefinitely until terminated by either Party by giving the other
Party 90 days' written notice of termination.
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2.2 In the event that the Subscriber does not subscribe for Interim Services this
Agreement shall commence on the Signature Date, and, unless terminated in
accordance with any other provision of this Agreement, shall endure:
2.2.1 from the Signature Date until the Commencement Date; and
2.2.2 after the Commencement Date this agreement shall endure for the Initial Period
and thereafter indefinitely until terminated by either Party by giving the other
Party 90 days' written notice of termination.
2.3 Subject to any written notice by AI MONITOR to the contrary, each additional
service, upgrade or relocation (if any) provisioned to the Subscriber after the
Commencement Date shall be subject to the provisions of this Agreement,
save that in respect of each such service, the Initial Period shall commence on
the date of activation of such service (the "Deemed Commencement Date")
and subject to any other lawful termination thereof, this Agreement shall
remain binding on the Parties in respect of such service until terminated by
either Party in terms of clause 2.1 or 2.2, after the expiry of the Initial Period as
calculated from the Deemed Commencement Date.
3. PROVISION OF THE SERVICES OR INTERIM SERVICES
3.1 AI MONITOR undertakes to provide the Services to the Subscriber upon the
terms and conditions set out in this Agreement. The Services or Interim
Services may include the installation and activation of one or more services on
behalf of the Subscriber and the connection of the Equipment to the System,
and/or may include solely connection of the Equipment to the System.
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3.2 The Subscriber shall be responsible for obtaining all necessary approvals and
consents that may be necessary for provisioning of the Services or Interim
Services at the Subscriber Premises.
3.3 The Subscriber acknowledges and accepts that the availability and/or quality of
the Services or Interim Services may be affected by factors including, but not
limited to, the System, the Equipment and accessories used with the
Equipment, atmospheric conditions, internet connectivity disturbances,
internet speed and other factors beyond the control of AI MONITOR.
3.4 Whilst AI MONITOR will take all reasonable steps to ensure that the Services or
Interim Services are provided in accordance with this Agreement, AI MONITOR
cannot and does not guarantee or undertake that the provision of the Services
or Interim Services will be provided at all times and accordingly, AI MONITOR
will, to the fullest extent permissible in law, not be liable for any direct or
indirect loss or damage of any nature whatsoever or howsoever arising that
may be sustained by the Subscriber as a result of any faults or interruptions in
the provision of the Services or Interim Services.
3.5 The Services or Interim Services are to be provided on the basis that the
Subscriber: -
3.5.1 will use the Services or Interim Services in accordance with the terms and
conditions of this Agreement and the conditions contained in the
Subscriber Application Form;
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3.5.2 will use the Services or Interim Services in accordance with AI MONITOR's
acceptable and fair use Policies as may be applicable from time to time;
3.5.3 will not utilise the Services or Interim Services, or allow others to do so, for
any improper, immoral, or unlawful purpose;
3.5.4 will only use the Equipment in accordance with the manufacturer's
instructions and for the purposes and in the manner for which it is
intended;
3.5.5 will comply with all relevant legislation and regulations and all instructions
issued by any governmental authority and/or by AI MONITOR regarding
the use of the Services or Interim Services; and
3.5.6 will not act or omit to act, or allow others to do so, in any way likely to
damage, disrupt or interfere with the System or to injure or damage any
person or property or to cause the quality of the Services or Interim
Services to be impaired or interrupted in any manner whatsoever.
3.6 The Subscriber agrees to defend, indemnify and hold AI MONITOR, its
directors, employees, agents and other members of its group of companies, as
that term is defined in the Companies Act 71 of 2008, (each an "indemnified
Party") harmless from any use of the Services or Interim Services by the
Subscriber, that is not in accordance with the terms and conditions of this
Agreement.
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3.7 The Subscriber shall remain fully liable for payment of all Charges for Services
or Interim Services to AI MONITOR incurred through the use of the Services or
Interim Services regardless of whether such use is by the Subscriber or
whether such use is with or without the authority, knowledge or consent of
the Subscriber.
3.8 The Subscriber acknowledges that AI MONITOR will not be required to
commence the provision of the Services or Interim Services until AI MONITOR
is satisfied that the Subscriber has met the requirements set forth under RICA.
The Subscriber agrees that it will provide AI MONITOR with the necessary
documentation and information required by AI MONITOR to verify that the
Subscriber has complied with RICA.
4. CHARGES
4.1 By its signature to the Subscriber Agreement, the Subscriber acknowledges
that it is aware of and has agreed to be bound by all the terms of this
Agreement and to effect payment of the Charges relating to the Services or
Interim Services selected by the Subscriber in the Subscriber Application Form,
which Charges shall be payable to AI MONITOR as follows:
4.1.1.1 the Subscriber's Payment Terms are Pre-paid, the Monthly Access Charge
shall be paid in advance as fully detailed in the Subscriber Application
Form.
4.2 The timing, format and details of invoices shall be in the sole discretion of AI
MONITOR.
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4.3 All Charges, unless otherwise stated in the Schedule of Charges, are exclusive
of value added tax (VAT), which shall be borne and paid for by the Subscriber
together with the charges in question.
4.4 The Monthly Access Charge is a charge for permitting the Subscriber continued
access to the Services or Interim Services and the Subscriber will be liable for
each and every Monthly Access Charge irrespective of the use made of the
Services or Interim Services.
4.5 AI MONITOR may at any time by written notice require the Subscriber to
furnish such security as AI MONITOR may deem appropriate for the payment of
the Charges, and any failure by the Subscriber to furnish such security to AI
MONITOR within 14 days after the date of such notice shall constitute a
material breach of this Agreement by the Subscriber.
4.6 AI MONITOR shall be entitled to adjust the Charges on an annual basis. The
adjustment shall be in line with any change in the Consumer Price Index ("CPI
for services") as published by Statistics South Africa.
5. PAYMENT
5.1 All Charges shall be paid by means of direct debit order, free of exchange and
bank charges. The Subscriber shall not for any reason whatsoever withhold
payment of any Charges and the Subscriber accepts responsibility to ensure
that the banking details provided to AI MONITOR are at all times current and
correct.
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5.2 Should any payment not be made on the due date, AI MONITOR shall be
entitled, without detracting from its other rights, to charge the Subscriber
interest on such arrear payments from the due date of such payments to date
of actual payment thereof, at a rate equal to 4% above the annual prime bank
overdraft rate charged by the Bank, from time to time.
5.3 All payments made by the Subscriber shall be appropriated firstly towards the
payment of legal costs incurred in the recovery thereof, thereafter towards the
payment of interest accruing thereon and lastly in reduction of the capital sum
due.
5.4 AI MONITOR will submit statements to the Subscriber monthly. The Subscriber
accepts responsibility to ensure that the statement is received and checked.
6. EQUIPMENT
6.1 Ownership in the Equipment will remain vested in AI MONITOR.
6.2 All risk in and to the Equipment shall pass to the Subscriber upon delivery
thereof to the Subscriber and the Subscriber shall take reasonable steps to
avoid damage to Equipment at the Subscriber Premises where the Equipment is
installed.
6.3 The Equipment provided to the Subscriber, including the software incorporated
in the Equipment and all intellectual property rights in and to the Equipment,
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will not become the property of the Subscriber and the Equipment will be
returned to AI MONITOR on termination of this Agreement for any reason
whatsoever, unless the Subscriber has purchased the Equipment from AI
MONITOR.
6.4 The Subscriber will not be entitled to give up possession of the Equipment, in
whole or in part to any third party and will not be entitled to remove and re-
install the Equipment at a different location.
6.5 The Subscriber shall notify AI MONITOR immediately in the event of the
Equipment being stolen or damaged.
6.6 AI MONITOR will install the Equipment at the Subscriber's premises and
maintain the Equipment for the duration of this Agreement. AI MONITOR's
representatives, employees, agents and contractors may at all reasonable
times, without giving rise to any claim or right of action on the part of the
Subscriber, enter the Subscriber's premises to inspect the Equipment, carry out
necessary repairs, replacement of Equipment, or to perform any other lawful
function in the bona fide interest of AI MONITOR in respect of the Equipment.
6.7 The Subscriber acknowledges and agrees that the Equipment is movable
property and that it will not be installed with the intention that it remains or
accedes to whatever housing it may be installed with or to.
6.8 The Subscriber may not make any alteration or modification to the Equipment.
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6.9 The Subscriber must ensure that all electronic equipment that is not provided
by AI MONITOR and that is installed at the Subscriber Premises has been type
approved by the Authority (to the extent necessary).
6.10 The Subscriber must ensure that any equipment installed at the Subscriber
Premises, which has not been leased, purchased from and/or installed by AI
MONITOR, does not interfere with or degrade the System or will interfere with
Services provided.
6.11 The Subscriber will advise the landlord of the Subscriber's premises that
ownership of the Equipment vests in AI MONITOR. The Subscriber will advise AI
MONITOR of the full name and address of its landlord.
7. UNAUTHORISED TRAFFIC
7.1 The Subscriber is responsible for the security of the Equipment and for taking
the necessary steps to prevent unauthorized or fraudulent use of the Services or
Interim Services perpetrated using the Subscriber's equipment and the
Equipment including, but not limited to, keeping all username and passwords
used to access the System secret.
7.2 AI MONITOR will use its best commercial endeavours to monitor traffic and will
suspend the Services or Interim Services if it appears, in the reasonable opinion
of AI MONITOR, that the Services or Interim Services are being used improperly.
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7.3 Notwithstanding the provisions of clause 7.2, AI MONITOR disclaims all liability
and the Subscriber indemnifies AI MONITOR against all liability for unauthorised
or fraudulent use of the Services or Interim Services that takes place outside of
the System.
8. INSURANCE
8.1 The Subscriber shall at its own costs comprehensively insure all Equipment
installed at the Subscriber Premises against all insurable risks (and at all times
maintain such insurance policies).
8.2 Should the Subscriber on request from AI MONITOR fail to provide proof of
such insurance and payment of the premiums thereof, AI MONITOR shall be
entitled to effect the insurance and recover all premiums from the Subscriber.
9. EARLY TERMINATION
9.1 Without prejudice to any rights that AI MONITOR may have in terms of this
Agreement, in the event that the Subscriber terminates this Agreement for any
reason, other than the reasons for termination contemplated in clauses 2.1
and 10.2, or breach by AI MONITOR, the Subscriber shall pay to AI MONITOR
any arrear, Monthly Access Charges and other charges that may be in arrears
at that time. In addition, the Subscriber shall be liable for and shall pay the
Monthly Access Charges applicable for the remainder of the Initial Period if the
Agreement is terminated by the Subscriber during the Initial Period. Such
Monthly Access Charges shall be paid to AI MONITOR on demand.
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9.2 Should the Subscriber terminate this Agreement after the Signature date, but
before the Commencement Date, the Subscriber shall be liable for the
payment of the Monthly Access Charges for the Initial Period and the
Connection Charge.
10. SUSPENSION OF SERVICES OR INTERIM SERVICES
10.1 AI MONITOR may at any time suspend the Services or Interim Services, in
whole or in part and without incurring any liability whatsoever –
10.1.1 should AI MONITOR be unable to provide the Services or Interim
Services, in whole or in part, whether due to vis major or otherwise
through no fault of its own;
10.1.2 should AI MONITOR suspect that the Services or Interim Services are
being used improperly under circumstances as detailed in clause 7.2;
10.1.3 should an agreement in terms of which AI MONITOR derives its rights
to provide the Services or Interim Services, be suspended, cancelled or
terminated;
10.1.4 should such suspension of the Services or Interim Services be necessary
in order to facilitate any repairs, modification, maintenance,
improvements or remedial works in respect of the System;
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10.1.5 should the Subscriber not comply with AI MONITOR 's acceptable or fair
use policies; or
10.1.6 should the Subscriber fail to comply with any term of this Agreement.
10.2 Should the Services or Interim Services be suspended pursuant to
10.1.1,10.1.3 or 10.1.4, AI MONITOR shall use its reasonable endeavours to
provide an alternative service to the Subscriber, whether through another
electronic communications network operator or service provider or
otherwise, all in AI MONITOR's discretion. Should AI MONITOR fail to provide
an alternative service within 14 days after the commencement of the
suspension, either party shall be entitled by written notice to the other, to
terminate this Agreement with immediate effect. In such event, the
Subscriber shall remain liable for all Charges accrued up to date of such
termination, which charges shall be payable on demand.
10.3 Should the Services or Interim Services be suspended by reason of default of
the Subscriber, the Subscriber shall be liable to AI MONITOR:
10.3.1 for its then applicable Installation Charges, payable on cessation of the
suspension; and
10.3.2 for the duration of the suspension, all Monthly Access Charges and any
other charges which would have been payable to AI MONITOR,
notwithstanding the suspension of the Services or Interim Services.
11. BREACH
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11.1 Should the Subscriber breach any term of this Agreement and fail to remedy
such breach notwithstanding 10 (ten) days' notice of breach, or should the
Subscriber be provisionally or finally liquidated or declared insolvent or die, or
attempt to compromise with any of its creditors, or allow any judgement
against it to remain unsatisfied for a period of 14 (fourteen) days after the
date of such judgement, AI MONITOR shall be entitled, but not obliged, and
without detracting from any other rights that it may have in law or in terms of
this Agreement to:
11.1.1 terminate this Agreement with or without claiming any damages it may
have suffered;
11.1.2 terminate this Agreement and recover from the Subscriber as liquidated
damages, the aggregate of the Monthly Access Charges for the unexpired
portion (if any) of the Initial Period plus all amounts payable under any
Agreement between AI MONITOR and a third-party provider in order to
offer the Services or Interim Services in terms of this Agreement;
11.1.3 without terminating this Agreement, claim immediate payment of all,
Monthly Access Charges and any other Charges which are due and/or
which would have fallen due for the remainder of the Initial Period in
terms of this Agreement, all of which shall be immediately due and
payable. AI MONITOR will, pending payment of these amounts be entitled
to suspend the Services or Interim Services, in whole or in part to the
Subscriber and without notice be possessed of the Equipment and to
retain possession thereof until all amounts due to AI MONITOR have been
paid in full; or
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11.1.4 claim specific performance with or without claiming damages.
11.2 Notwithstanding the provisions of clause 11.1, AI MONITOR shall have the
right to terminate this Agreement with immediate effect for material breach,
without prejudice to its right to claim damages.
11.3 In the event of termination of this Agreement for any reason whatsoever AI
MONITOR shall be entitled to uninstall and retake possession of the
Equipment.
12. DATA PROTECTION
12.1 In performing its obligations under this Agreement, AI MONITOR shall: -
12.1.1 comply with the provisions of prevailing privacy and data protection legislation
governing the collection, use and processing of personal information as defined
in the relevant legislation (hereinafter "Personal Information");
12.1.2 not process Personal Information for any purpose other than to perform its
obligations under this Agreement;
12.1.3 only act on the instructions of the Subscriber in collecting, processing and
utilising the Personal Information (and for avoidance of doubt, this Agreement
shall constitute such instructions);
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12.1.4 not disclose or otherwise make available the Personal Information to any third
party other than authorised staff or sub-contractors who require access to such
Personal Information strictly on a need to know basis, in order for AI MONITOR to
carry out its obligations pursuant to this Agreement and ensure that such staff
and any other persons that have access to the Personal Information are bound by
appropriate and legally binding confidentiality and non-use obligations in relation
to the Personal Information;
12.1.5 take appropriate, reasonable technical and organisational measures to ensure
that the integrity and confidentiality of the Personal Information in its possession
or under its control is secure and that such Personal Information is protected
against accidental loss, destruction, damage, unlawful access or processing;
12.1.6 immediately notify the Subscriber in case of possible infringement of the
applicable data protection legislation, the terms of this clause or other
irregularities by AI MONITOR, its staff or any other party acting on behalf of AI
MONITOR in relation to the Subscriber's Personal Information; and
12.1.7 at the Subscriber's option, return or destroy the Personal Information once it is
no longer required for the purposes of performing obligations under this
Agreement or any directly related purpose.
13. VIS MAJOR
13.1 Failure by a Party to comply with any of the terms and conditions of the
Agreement if occasioned by or resulting from an act of nature or public enemy,
lightning, fire, explosion, earthquake, perils of the sea, flood, storm or other
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adverse weather conditions, war declared or undeclared, civil war, revolution,
civil commotion, riot, strikes, blockade, embargo, sanctions, epidemics, act of
any government or other authority, compliance with government orders,
demands or regulations, as well as shortages, interruptions, fluctuations or the
unavailability of electrical power, water supply or means of communication or
any circumstances of like or different nature beyond the reasonable control of
the Party so failing ("vis major"), will not be deemed to be a breach of this
Agreement, nor will it subject either Party to any liability to the other.
13.2 Should a Party's performance of an obligation become temporarily impossible
owing to vis major, that Party shall:
13.2.1 as soon as reasonably possible after the vis major sets in notify the
other Party in writing of the incidence of vis major;
13.2.2 be released from performance or observance of the affected obligation
for so long as the vis major prevails;
13.2.3 use commercially reasonable efforts to recommence performance or
observance of the affected obligation to the extent possible; and
13.2.4 co-operate with the other Party in implementing such contingency
measures as the other Party may reasonably require.
13.3 Should the circumstances of vis major continue for longer than 30 (thirty)
days, either Party shall be entitled to terminate the Agreement forthwith by
written notice to the other Party.
14. INTELLECTUAL PROPERTY RIGHTS
Nothing contained in this Agreement shall be construed to confer on either Party
any rights or licenses to the intellectual property of the other Party.
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15. CERTIFICATE
A certificate signed by any manager of AI MONITOR (whose appointment and
authority it shall not be necessary to prove) as to the existence of any facts and,
in particular, without limiting the generality of the aforegoing, as to the amount
of any indebtedness of the Subscriber to AI MONITOR in terms of and pursuant to
this Agreement, shall constitute prima facie proof of such facts for any purpose
and, more particularly, for the purposes of obtaining provisional sentence,
default judgment or summary judgment or their equivalent in any court of
competent jurisdiction.
16. LIMITATION OF LIABILITY AND INDEMNITY
16.1 AI MONITOR, its directors, employees and sub-contractors shall not be liable
whether in contract, delict or under any other cause of action for:
16.1.1 loss of profit, loss of use, interruption or reduction of operation, loss of
data (including the recovery thereof), loss of production, loss of
contracts or for any indirect or consequential damage;
16.1.2 death, injury, or damage to property unless caused by AI MONITOR's
gross negligence; and
16.1.3 any damage arising out of the infringement of any intellectual property
rights; arising out of or in connection with this Agreement.
16.2 AI MONITOR's liability for any act or omission, whether in contract, delict or
under any other cause of action, will in no single event or in aggregate exceed
a maximum amount of R500 000-00 (five hundred thousand Rand).
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16.3 AI MONITOR may, without the consent of the Subscriber, disclose any
information of the Subscriber to any third party as it may be required to do in
terms of any legislation.
17. DISPUTE RESOLUTION, GOVERNING LAW
17.1 Subject to AI MONITOR's right in each instance to elect to institute action for
payment of the charges and any other amounts due under the Agreement in
any court of competent jurisdiction, in the event of any disagreement or claim
("dispute") arising out of or relating to this Agreement, the senior executives
of the Parties or their delegates designated in writing shall endeavour to
settle the dispute through bona fide negotiations within 14 (fourteen) days of
the dispute being referred to them by written notice from either Party.
17.2 Should the Parties be unable to settle the dispute by the means and within
the timeframe stated above, either Party may refer the dispute for final
decision by arbitration in accordance with the rules for commercial
arbitrations ("rules") of the Arbitration Foundation of Southern Africa
("AFSA"), by one or more arbitrator/s appointed in accordance with the rules.
17.3 Unless otherwise agreed in writing the arbitration shall be held in
Johannesburg in the Republic of South Africa and conducted in the English
language. Only the Parties and their legal representatives or persons agreed
to shall attend the arbitration proceedings.
17.4 The decision of the arbitrator/s may be made an order of court.
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17.5 This Agreement shall in all respects be governed by the law of South Africa,
without regard to its conflict of law provisions.
17.6 This clause 17 is severable from the rest of the Agreement and shall survive
the expiry or termination for whatsoever reason of the Agreement
18. URGENT RELIEF
The provisions of clause 17 shall not preclude any party from access to a
competent court of law for relief in the form of:
18.1 an interdict, including a mandatory interdict; or
18.2 an order for specific performance.
19. DOMICILIUM CITANDI ET EXECUTANDI
19.1 The Parties choose as their domicilium citandi et executandi for all purposes of
this Agreement, whether in respect of court process, notices or other
documents or communications of whatsoever nature (including the exercise of
any option), the following addresses:
19.1.1 AI MONITOR Boskruin Office Park 5, Johannesburg, Gauteng ,2090;
19.1.2 the Subscriber: at its physical address set out in the Subscriber
Application Form;
19.2 Any notice or communication required or permitted to be given in terms of
this Agreement shall be valid and effective only if in writing and delivered by
hand to a Party's chosen domicilium citandi et executandi;
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19.3 Either Party may by notice to any other Party change the physical address
chosen as its domicilium citandi et executandi vis-à-vis that Party to another
physical address provided that the change shall become effective vis-à-vis that
addressee on the 10th business day after receipt of the notice by the
addressee.
19.4 Any notice to a Party delivered by hand to a responsible person during
ordinary business hours at the physical address chosen as its domicilium
citandi et executandi shall be deemed to have been received on the day of
delivery.
19.5 Notwithstanding anything to the contrary herein contained a written notice or
communication actually received by a Party shall be an adequate written
notice or communication to it notwithstanding that it was not sent to or
delivered at its chosen domicilium citandi et executandi.
20. CESSION
20.1 AI MONITOR shall, without notice thereof, be entitled to cede, assign and
delegate all or any of its rights and obligations in terms of this Agreement to a
third party.
20.2 The Subscriber shall not be entitled to cede, assign or delegate any of its
rights or obligations in terms of this Agreement without the prior written
consent of AI MONITOR.
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20.3 AI MONITOR shall be entitled, without prejudice to any of its other rights, to
terminate this Agreement on 7 days written notice to the Subscriber in the
event that the Subscriber shall purport to cede, assign or delegate any of its
rights or obligations in terms of this Agreement without the prior written
consent of AI MONITOR.
21. WHOLE AGREEMENT, NO AMENDMENT
21.1 No extension of time or waiver or relaxation of any of the provisions or terms
of this Agreement or any agreement, bill of exchange or other document
issued or executed pursuant to or in terms of this Agreement, shall operate as
an estoppel against any Party in respect of its rights in this Agreement, nor
shall it operate so as to preclude such Party thereafter from exercising its
rights strictly in accordance with this Agreement.
21.2 To the extent permissible by law no Party shall be bound by any term,
representation, warranty, promise or the like not recorded herein, whether or
not it induced the contract.
21.3 This Agreement together with all addenda/annexures and schedules signed by
the Parties constitutes the entire agreement between the Parties.
21.4 Save as may be otherwise expressly provided in this Agreement, no alteration,
variation or consensual cancellation of this Agreement and no addition to this
Agreement shall be of any force or effect unless reduced to writing and signed
by the Parties or their duly authorised representatives.
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21.5 No failure, delay, relaxation or indulgence on the part of AI MONITOR in
exercising any power or right conferred upon it in terms of this Agreement
shall operate as a waiver of such power or right, nor shall any such failure,
delay, relaxation or indulgence be deemed to be a novation of any of the
terms and conditions of this Agreement. The acceptance by AI MONITOR of
any payment by the Subscriber after the termination of this Agreement shall
not be deemed to be a waiver of AI MONITOR's rights or be deemed to
constitute a novation of this Agreement.
22. COSTS
The Subscriber shall on demand pay all expenses incurred by AI MONITOR either
on behalf of the Subscriber or as a result of the Subscriber's failure to comply
with any provision of this Agreement, including tracing costs and all legal costs
calculated on the scale as between attorney and client.
23. DEPOSIT
23.1 The Subscriber undertakes that it shall, on the Signature Date, pay to AI
MONITOR the Deposit as set out in the Subscriber Application Form.
23.2 AI MONITOR shall be entitled, in its sole and absolute discretion to determine
the amount of the Deposit required by it.
23.3 The Deposit paid by the Subscriber shall be retained by AI MONITOR until the
termination of this Agreement, free of any interest to the Subscriber and as
security for the payment by the Subscriber of all amounts for which the
Subscriber shall be liable to pay to AI MONITOR in terms of this Agreement.
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23.4 AI MONITOR shall have the right to appropriate all or part of the Deposit,
upon termination of this Agreement, towards payment of any amount then
owing to it in terms of this Agreement.
23.5 Subject to the provisions of 23.3 and 23.4, AI MONITOR will repay such
Deposit to the Subscriber, or the balance thereof if any, within 14 days after
the termination of this Agreement.
24. DISCLAIMERS
24.1 The Subscriber specifically accepts and acknowledges that AI MONITOR
acts merely as a distributor of any data and the Subscriber accepts all
liability, arising from any claims, inter alia claims relating to:
24.1.1 any intellectual property infringement contained in the information
including copyright infringement (whether digital or otherwise), trade
mark infringement, infringement of trade secrets and/or databases;
24.1.2 the distribution of any defamatory, discriminatory or obscene material,
whether unacceptable or illegal; the distribution of any sexually explicit
messages, images, cartoons or jokes, whether unacceptable or illegal;
the distribution of offensive, disruptive, harmful or insulting material;
the distribution of computer viruses; the distribution and/or disclosure
of private information; and the Subscriber's breach of contract to a third
party; or
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24.1.3 non-compliance with any legislation and/or regulations, including but
not limited to, regulations issued by the South African Revenue Services
from time to time.
25. OVERRIDING PROVISIONS
Unless otherwise specifically stipulated in writing to the contrary, the terms and
conditions herein contained shall supersede and prevail over any terms and
conditions contained in any other document(s) signed or submitted by the
Subscriber.
26. CONSUMER PROTECTION ACT ACKNOWLEDGEMENT
In the event that the Subscriber is a consumer as defined in the Consumer
Protection Act 68 of 2008, ("the CPA") the Subscriber's attention is in terms of
section 49 of the CPA, drawn to all provisions in this Agreement printed in BOLD.
27. CREDIT ENQUIRY
27.1 The Subscriber consents to AI MONITOR making enquiries about the
Subscriber’s credit record with any credit reference agency and any other
party to confirm the details in this Agreement. AI MONITOR may also provide
credit reference agencies with regular updates regarding how the Subscriber
manages its account, including the Subscriber’s failure to meet agreed terms
and conditions.
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AI MONITOR may also give this information to any person who, in its opinion,
needs to carry out any of AI MONITOR’s rights or duties in terms of this
Agreement. The Subscriber confirms that it has obtained the prior written
consent from every director, shareholder, member and/or associate of the
Subscriber, confirming that AI MONITOR or its cessionary/ies may make
enquiries to their credit records with any credit reference agency and/or third
party and/or any funder/s for any purpose as contemplated in the Protection
of Personal Information Act. The Subscriber indemnifies AI MONITOR and/or
its cessionary/ies against any claim that may be made against it by any person
by virtue of this consent.
:Full name: AI Monitor (Pty) Ltd Physical address and address for receipt of service: Building 3, Boskruin Village Office Park. Johannesburg, South Africa :Website address: www.ai-monitor.co.zaEmail address: info@ai-monitor.co.za Registration number:2022/731821/07 Country of incorporation: South Africa
