Terms & Conditions

1. Definitions and Interpretation

1.1 In this Agreement (unless the context requires otherwise) the following terms shall have the following meanings:

1.2 In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement; and (d) a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

2. Subscription

2.1 Subject to You purchasing sufficient Usage Rights in accordance with clause 3 and subject to the other terms and conditions of this Agreement, the Company hereby grants You the Customer a non-exclusive, non-transferable right to permit Authorised Users to use the Service during the Subscription Term solely for the purpose of Private use.

3. Audit and Usage Rights

3.1 You acknowledge and agree that the Order Form may stipulate limits on your rights to use the Service or other conditions or parameters affecting its use of the Service (“Usage Rights“), including (without limitation) the following: (a) limits on the number of Control Unites which the Customer may deliver; (b) limits you on the number of Users may permit to use the Service.

3.2 In relation to Usage Rights, You undertakes that: (a) its use of the Service will not exceed any applicable Usage Rights; (b) it will not use the Service in any way which would exceed the Usage Rights; (c) it will not permit or allow any Authorised Users to use the Service in a way which exceeds the Usage Rights; (d) it will ensure that each Authorised User shall be issued with and keep a secure password for his or her use of the Services and that each Authorised User shall keep his or her password confidential; (e) it shall maintain complete and accurate records of its use of the Service, who has access to the software, as well as all Authorised Users it has permitted to use the Service and shall make such records available to the Company for inspection at any time.

3.3 The Company shall permit You (or the Company’s designated auditor) to audit the use of the Services in order to establish whether any applicable Usage Rights have been complied with or exceeded and to ensure that the Service has been used in compliance with this Agreement more generally. Each such audit may be conducted no more than once per quarter, at Your expense (except as provided for in clause 3.4), and this right shall be exercised with reasonable prior notice for any audit under this clause shall be defined as no less than 10 Business Days. The audit process must minimize interference with the Customer’s normal operations cost for the company, and conducted in such a manner as not to substantially interfere with Your normal use of the Company’s services.

3.4 If any of inspection of Your records under clause 3.2 or audit under clause 3.3 reveals that You has exceeded any applicable Usage Rights, or underpaid Subscription Fees due to the Company, or otherwise used the Service in breach of this Agreement, then without prejudice to the Company’s other rights, You shall (as applicable) compensate the Company for any use of the Service which has exceeded the Usage Rights, or pay to the Company an amount equal to any underpayment of Subscription Fees, or remedy any other non-compliance with this Agreement (as the Company may reasonably require). Under such circumstances You shall also reimburse the Company in respect of any costs it has incurred in undertaking the inspection or audit.

3.5 In the event that an audit reveals no breach of Usage Rights or other violations of this Agreement, the Company shall bear the full cost of the audit. If a breach is identified, You shall reimburse the Company for reasonable audit costs incurred, in addition to addressing the breach as outlined in this Agreement.

3.6 The scope of audits will be limited to verifying compliance with Usage Rights and Subscription Fees, as defined in the Order Form.

4. Acceptable Use

4.1 You agree that it is solely responsible for using the Service, for any material or content shared or disseminated in connection with the service and for the actions of its Authorised Users.

4.2 You shall comply with all applicable laws, regulations and codes of practice in using the Service and in connection with any Hardware or Software use.

4.3 Without prejudice to the generality of Your obligations under clause 4.1 and 4.2 above, You agrees that it shall not (and shall procure that its Authorised Users shall not), in using the Service, access, store, distribute or transmit any materials or content that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property. The Company reserves the right, without liability to You and without prejudice to its other rights, to disable or suspend Your access to any platform, material or content, or its use of the Service, in the event that the Company believes that there may have been a breach of the provisions of this clause.

5. Restrictions

5.1 You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Software (as applicable) in any form or media or by any means; (b) attempt to decompile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Service or Software; (c) access or use all or any part of the Service or Software in order to build a product or service which competes with the Service and/or Software; (d) use the Service to provide services to third parties; (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service or Software available to any third party except the authorized users; or (f) introduce or permit the introduction of any virus into the Company network and information systems.

5.2 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and Software and, in the event of any such unauthorised access or use, promptly notify the Company.

5.3 The rights granted under this Agreement are granted to You only and shall not be considered granted to any subsidiary or holding company of You unless expressly agreed otherwise in writing by the Company.

6. Additional Usage Rights

6.1 Subject to clause 6.2 and 6.3 below, You may, from time to time during any Subscription Term, purchase additional Usage Rights in excess of the number set out in the Order Form and the Company shall then permit use of the Service in accordance with such additional Usage Rights in accordance with the provisions of this Agreement.

6.2 If You wishes to purchase additional Usage Rights, You shall notify the Company in writing. The Company shall evaluate such request for additional Usage Rights or additional Control Units and respond to You with approval or rejection of the request and detailing any additional Subscription Fees which are payable in respect of the additional Usage Rights requested. Where the Company approves the request, the Company shall activate and/or install hardware supporting the additional Usage Rights as soon as reasonably practicable after approval of Your request, or with effect from any date expressly agreed between the parties.

6.3 If the Company approves Your request to purchase additional Usage Rights, You shall, within 14 days of the date of the Company’s invoice, pay to the Company the relevant fees for such additional Usage Rights or Services.

7. Provision of the Service

7.1 The Company shall, during the Subscription Term, provide the Service to You on and subject to the terms of this Agreement.

7.2 The Company shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for: (a) planned maintenance carried out during the maintenance window of 12.00 pm to 5.00 am SA time; and (b) unscheduled maintenance performed outside Normal Business Hours, provided that the Company has used reasonable endeavours to give You at least 6 Normal Business Hours’ notice in advance.

8. “AS IS” and “AS AVAILABLE” Disclaimer

8.1 The Service is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

8.2 Without limiting the foregoing, neither the Company nor any of the company’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

8.3 Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

9. Standard Support Services

9.1 The Company will, as part of the Service, provide You with the standard customer support services during Normal Business Hours in accordance with the Company’s Support Services Policy in effect at the time that the Services are provided. The Company may amend the Support Services Policy in its sole and absolute discretion from time to time.

9.2 You may purchase enhanced support services separately at the Company’s then-current rates.

10. Company’s Obligations

10.1 The Company undertakes to provide the Service in accordance with the terms of this Agreement and using reasonable skill and care.

10.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to the Company’s instructions, or modification or alteration of the Service by any party other than the Company or the Company’s duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Company will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.

10.3 The Company does not warrant that: (a) Your use of the Services will be uninterrupted or error-free; or (b) that the Service will always meet the Your requirements; or (c) the Service or Software will be free from viruses or vulnerabilities.

10.4 The Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, installed hardware and You acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

11. Your Obligations

11.1 You shall: (a) provide the Company with all necessary co-operation in relation to this Agreement and all necessary access to Your premise and such information as may be required by the Company in order to provide the Service, including but not limited to Your Data, security access information and configuration services; (b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this agreement; (c) carry out all other responsibilities set out in this Agreement in a timely and efficient manner; (d) ensure that the Authorised Users use the Service in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this agreement, including without limitation the Service; (f) ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and (g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Company’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.

11.2 You shall own all right, title and interest in and to all of Your Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

12. Fees and Payment

12.1 Subscription fees are non-refundable unless a material breach by the Company prevents the Customer from accessing the Service for an extended period (30+ days). The Company may adjust subscription fees upon 30 days’ written notice before any Renewal Period.

12.2 You shall pay the Subscription Fees to the Company in accordance with the Order Form and this clause 12.

12.3 The Subscription Fees shall be paid on such dates and by such method as is stipulated in the Order Form or (where no particular dates or payment method is stipulated) within thirty (30) days of the date of the Supplier’s invoice therefor.

12.4 Unless stated otherwise on the Order Form or agreed in writing by the Company: (a) all Fixed Fees shall be payable (and may be invoiced) monthly in advance; and (b) all Usage Fees shall payable (and may be invoiced) at the end of each calendar month in respect of the preceding month’s usage.

12.5 Unless stated otherwise, all Subscription Fees and other amounts referred to in this Agreement: (a) shall be payable in South African Rands; (b) are non-cancellable and non-refundable; and (c) are exclusive of value added tax, which shall be payable (and added to the Company’s invoice(s)) at the appropriate rate.

12.6 If You fail to make payment of any sum due to be paid to the Company under this Agreement by the due date for payment, then without prejudice to any other rights and remedies available to the Company: (a) the Company may, without liability to You, disable Your access to and/ or use of the Service (or any part of it) and the Company shall be under no obligation to provide any or all of the Service while the outstanding amounts concerned remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 15% over the then current base lending rate of the reserve Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

12.7 The Company shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon giving at least 30 days’ prior notice to You and this Agreement shall be deemed to have been amended accordingly.

13. Links to Other Websites

13.1 Our Service may contain links to third-party web sites or services that are not owned or controlled by the Company.

13.2 The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

13.3 We strongly advise You to read the terms and conditions and privacy policies of any third-party websites or services used – https://blynk.io/privacy and https://blynk.io/tos.

14. Proprietary Rights

14.1 For the purposes of these Terms and Conditions, Proprietary Rights shall include all Intellectual Property Rights as defined herein.

14.2 You acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Service, Software and Hardware. Except as expressly stated herein, this Agreement does not grant You any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Service or Software and Hardware.

14.3 Unauthorised use, duplication, or modification of any intellectual property belonging to the Company will result in the immediate termination of Your right to use the Service. Additionally, the Company reserves the right to pursue claims for damages and other remedies available under applicable law.

14.4 All intellectual property rights in the Service, Software, and Hardware, as well as any improvements or derivatives thereof, shall remain vested exclusively in the Company. You are granted a limited, non-exclusive, non-transferable license solely for the purpose of using the Service or Subscription Term in accordance with these Terms and Conditions. Any unauthorised use, duplication, or modification is strictly prohibited.

14.5 The Company confirms that it has all the rights in relation to the Service and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms and conditions.

14.6 For further details on the consequences of unauthorized use, please refer to the ‘Terms and Termination’ clause.

15. Data Protection

15.1 Each of the parties agree to comply with all applicable laws concerning data protection and privacy in connection with their activities under this Agreement. In particular, You agree to comply with such laws in connection with use of the Company products or services.

15.2 To the extent that the Company processes any personal data on behalf of the Customer in performing its obligations under this Agreement, the parties agree to comply with their respective obligations under the Data Processing Addendum appended to these Terms and Conditions set out in Annexure 1.

16. Confidentiality 

16.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

16.2 Subject to clause 16.4, each party shall hold the other’s Confidential Information in confidence and not make without written approval the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms and Conditions, without written approval.

16.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms and Conditions.

16.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

16.5 You acknowledge that details of the Service and Software and Hardware, constitute the Company’s Confidential Information. The Company acknowledges that Your Data is the Confidential Information.

16.6 The above provisions of this clause 16 shall survive termination of this terms and conditions, however arising.

17. Indemnity

17.1 You the Customer shall indemnify the Company against claims arising from misuse of the Service. Conversely, the Company shall indemnify You the Customer for claims of intellectual property infringement provided the Customer adheres to the terms of the Agreement.

17.2 You shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Service and/ or any products and/ or any Hardware delivered by the Company, provided that: (a) you are given prompt notice of any such claim; (b) the Company provides reasonable co-operation to You in the defence and settlement of such claim, at Yours expense; and (c) You are given sole authority to defend or settle the claim.

17.3 The Company shall defend You against any claim that the Customer’s use of the Service in accordance with this Agreement infringes any South African or United Kingdom Intellectual Property Rights owned by any third party (“IP Claim“), and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that: (a) the Company is given prompt notice of any such claim; (b) you provide reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and (c) the Company is given sole authority to defend or settle the claim.

17.4 All intellectual property rights in the Service, Software, and Hardware, as well as any improvements or derivatives thereof, shall remain vested exclusively in the Company. The Customer is granted a limited, non-exclusive, non-transferable license solely for the duration of the Subscription Term for the intended purpose of using the Service. Any unauthorized use, duplication, or modification is strictly prohibited.

17.5 In the defence or settlement of any IP Claim, the Company may: (a) procure the right for You to continue using the Service; or (b) replace or modify the Service so that it becomes non-infringing; or (c) if the preceding remedies are not reasonably available, terminate this Agreement on notice to You in which event that You shall be entitled to receive an appropriate refund in respect of any pre-paid Subscription Fees paid in relation to the unexpired term of the Agreement, but the Company shall have no additional liability or obligation to pay liquidated damages or other additional costs to You.

17.6 In no event shall the Company, its employees, agents and sub-contractors be liable to You under clause 15.2 to the extent that the alleged IP Claim is based on: (a) a modification of the Service by anyone other than the Company; or (b) Your use of the Service in a manner contrary to the instructions given to You by the Company; or (c) Your use of the Service after notice of the alleged or actual infringement from the Company or any appropriate authority; or (d) any Customer Data or content or materials or instructions provided by the Customer.

17.7 The foregoing  states Your sole and exclusive rights and remedies, and the Company’s (including the Company’s employees’, agents’ and sub-contractors’) entire obligations and liability, in respect of any IP Claim.

18. Limitation of Liability

18.1 The Company’s liability for damages shall not exceed 50% of the total Subscription Fees paid in the preceding 12 months. The Company shall not be liable for indirect, incidental, or consequential damages, except in cases of gross negligence or willful misconduct.

18.2 Any changes to the liability limits during Renewal Periods will be communicated via email to the address provided in the Order Form, with a minimum of 30 days’ notice.

18.3 Except as expressly and specifically provided in this Agreement: (a) You assumes sole responsibility for results obtained from the use of the Service or attempts to deliver using the Service and for the success thereof and the Company shall have no liability for any problems or disruption experienced in relation to any Event; and (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and (c) the Service is provided to You on an “as is” basis.

18.4 Nothing in this Agreement and or Terms and Conditions excludes the liability of the Company: (a) for death or personal injury caused by the Company’s negligence; or (b) for fraud or fraudulent misrepresentation; or (c) for any other liability which may not be limited or excluded under applicable law.

18.5 Subject to clause 18.1 and clause 18.2, the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any personal loss, loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement and or Terms and Conditions.

18.6 Subject to clause 18.1 and clause 18.2, the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall, in respect of liabilities arising in any Contract Year, be limited to an amount equal to the 25% Subscription Fees actually paid to the Company in respect of that Contract Year.

This limitation applies to all claims in aggregate, including, without limitation, claims related to product defects, service interruptions, data loss, or any other damages, whether direct or indirect. This limitation is a material basis of the bargain between the parties and reflects the allocation of risk between the parties as reflected in the pricing of the Company’s products and services.

18.7 The liability cap outlined herein is based on current assessments of risk and legal compliance under South African law. The Company reserves the right to update this clause at the commencement of any Renewal Period with 30 days’ written notice.

19. Terms and Termination

19.1 If either party intends to terminate the Agreement, written notice must be provided 30 days before the end of the Subscription Term. The Agreement may also be terminated with immediate effect for material breaches not remedied within 14 days of written notice.

19.2 This Agreement and Terms and Conditions shall, unless otherwise terminated as provided in this clause 19, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period“), unless: (a) either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or (b) otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term“ .

19.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: (a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or (b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.

19.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: (a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the Insolvency Act24 1936; (b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (c) the other party applies to court for, or obtains, a moratorium under the Insolvency Act24 1936; (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership); (f) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; (g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the preceding vents mentioned in this clause; (j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

19.5 In the event of a data breach involving personal or confidential information, the Company will notify the affected parties within 72 hours of discovery. All breach notifications will be communicated via email to the contact details specified in the Order Form. The Company will take all reasonable steps to mitigate potential harm and ensure compliance with the Protection of Personal Information Act (POPIA). Any data placed in the public domain will exclude sensitive or confidential information unless explicitly authorised by the Customer in writing.

20. Post Termination

On termination (or expiry) of any Agreement for any reason:

20.1 Rights and Licenses – All rights and licenses granted under this Agreement shall immediately terminate, and the Customer shall immediately cease all use of the Service, Software, and Hardware.

20.2 Return of Equipment – The Customer shall return all equipment, components, and documentation supplied by the Company, including but not limited to thermostats, elements, and other associated items, in good working condition within ten (10) Business Days of termination. The Customer is responsible for all reasonable costs associated with the de-installation, packaging, and return transportation of the equipment to the Company.

20.3 De-Installation Services – If requested by the Customer, the Company will perform the de-installation of equipment for a reasonable fee. Such costs will be communicated to the Customer prior to the service and must be paid in full before scheduling the de-installation.

20.4 Inspection and Condition – Upon receipt of the returned equipment, the Company will inspect all items to ensure completeness and good condition. If any items are missing, damaged, or deemed non-functional beyond normal wear and tear, the Customer shall reimburse the Company for the cost of repair or replacement at the prevailing market rate.

20.5 Data Handling – The Company may destroy, delete, or otherwise dispose of the Customer’s data unless the Customer provides a written request for its delivery no later than ten (10) days after the effective date of termination. The Company shall use reasonable efforts to deliver a copy of the data within thirty (30) days of receiving the request, provided all outstanding fees and charges, including costs for data retrieval, have been paid by the Customer.

20.6 Cost Recovery – Any costs incurred by the Company due to the Customer’s failure to return equipment, provide access for retrieval, or address missing or damaged items shall be invoiced to the Customer. Payment must be made within fourteen (14) days of the invoice date.

20.7 Accrued Rights – Any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including claims for damages in respect of any breaches of this Agreement that existed at or before the date of termination, shall not be affected or prejudiced.

21. Miscellaneous

21.1 Any disputes arising from this Agreement shall first be addressed through mediation. If unresolved, they shall be subject to the exclusive jurisdiction of South African courts. Material changes to the Agreement require written acknowledgment from both parties before taking effect.

21.2 The Company shall have no liability to You under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs, load shedding or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that You are notified of such an event and its expected duration.

21.3 If there is an inconsistency between any of the provisions in the Order Form and in these Terms and Conditions, the provisions in the Order Form shall prevail.

21.4 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21.5 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

21.7 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

21.8 You shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21.9 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

21.10 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties C(RTP)A) Act 1999.

21.11 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of an executed counterpart of this Agreement by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this Agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.

21.12 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid courier or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email as set out in this Agreement. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.

21.13 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of South Africa. Each party irrevocably agrees that the courts of South Africa shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

21.14 Before initiating legal proceedings, the parties agree to attempt mediation. Mediation must be initiated within 14 days of notice of a dispute. The parties will jointly appoint a mediator, or failing agreement, a mediator will be appointed by a recognized mediation institution in South Africa. Unless otherwise agreed in writing, the costs of mediation shall be shared equally by both parties.

21.15 The Company may update these Terms and Conditions from time to time and updated copies of these Terms and Conditions shall be published at [www.energysense.co.za]. Unless expressly agreed otherwise in writing, the Agreement shall be governed by the version of these Terms and Conditions in force as at the Start Date for the duration of the Initial Subscription Agreement and shall be governed by the version of these Terms and Conditions in force on the first day of any Renewal Period for the duration of that Renewal Period. This is Version 1.0 of these Terms and Conditions.

22. Warranty, Repairs, and Callouts

22.1 Energy Sense (Pty) Ltd provides a 12-month limited warranty on all control units from the date of installation. This warranty covers factory faults and product failures under normal usage.

22.2 In the event of any issue affecting the geyser’s ability to heat water, the original installer will be sent to assess the system. A standard callout fee will apply, regardless of the outcome.

22.3 If the issue is found to be a faulty control unit, Energy Sense will repair or replace the unit at its discretion. The initial callout fee remains applicable.

22.4 If the issue is installation-related:

22.4.1 And the installation is less than 3 months old, no callout fee will be charged.

22.4.2 If older than 3 months, the callout fee applies, as the installation team provides a 3-month workmanship warranty.

22.5 If replacement parts (electrical or plumbing) are required, a formal quotation will be provided to the Customer. Work will proceed only upon written or electronic approval.

22.6 If a return visit is required to install parts, a second callout fee will apply.

22.7 This warranty excludes failures due to:

22.7.1 Electrical surges or lightning, Incorrect plumbing or tampering,

22.7.2 Use of incompatible components,

22.7.3 Any actions outside the intended installation guidelines.

22.8 This warranty is subject to the product being installed by an approved Energy Sense installer or a qualified technician with valid credentials and compliance documentation (e.g. Certificate of Compliance where applicable).

22.9 Warranty claims must be logged via the official Energy Sense website or by email, and in cases where Energy Sense did not perform the installation, a detailed fault report by a qualified technician must be submitted with the claim.

22.10 Energy Sense reserves the right to reject a warranty claim if:

22.10.1 The product was damaged due to incorrect or unqualified installation,

22.10.2 The product was tampered with or altered,

22.10.3 Electrical surges, poor maintenance, or environmental exposure (e.g. water, corrosion) caused the fault,

22.10.4 The installation does not comply with Energy Sense or manufacturer specifications.

22.11 Where a product is covered under an active subscription agreement, the product warranty is extended to remain valid for the duration of the subscription.

22.12 For warranty claims outside of the initial 12-month standard period (or where no subscription applies), all associated costs, including labour and transport, are for the customer’s account.

22.13 If spares are required for a repair, the customer will be quoted first. Work will commence only after approval. A second callout fee will apply if a return visit is required to complete the repair or installation.

ANNEXURE 1

DATA PROCESSING ADDENDUM

POPI ACT AGREEMENT AND CONSENT DECLARATION

YOU HEREBY DECLARE AND CONFIRM THAT YOU, AS THE PERSON/ENTITY/BODY/INDIVIDUAL/COMPANY WHOSE IS PROVIDING INFORMATION AND HEREINAFTER COLLECTIVELY REFERRED TO AS THE “CLIENT”, DO HEREBY IRREVOCABLY AGREE AND UNDERSTAND THAT ANY/ALL INFORMATION SUPPLIED OR GIVEN TO THE SERVICE PROVIDER, IS DONE SO IN TERMS OF THE BELOW TERMS AND CONDITIONS AND IN TERMS OF THIS AGREEMENT AND CONSENT DECLARATION.

Energy Sense (Pty) Ltd

(“THE SERVICE PROVIDER/COMPANY”)

1. INTERPRETATION

1.1 In this Agreement, unless inconsistent with or otherwise indicated by the context –

1.1.1 This Agreement” means the Agreement contained in this document;

1.1.2 The Company/Service provider” means Energy Sense (Pty) Ltd and includes its affiliated, holding and subsidiary companies;

1.1.3 Confidential information” includes, but is not limited to:

1.1.3.1 any information in respect of know-how, formulae, processes, systems, business methods, marketing methods, promotional plans, financial models, inventions, long-term plans and any other information of the client and the company in whatever form it may be;

1.1.3.2 all internal control systems of the client and the company; 

1.1.3.3 details of the financial structure and any other financial, operational information of the client and the company; and 

1.1.3.4 any arrangements between the client and the company and others with whom they have business arrangements of whatsoever nature, all of which the client and the company regards as secret and confidential.

1.1.4 “personal information” means personal information as defined in the Protection of Personal Information Act adopted by the Republic of South Africa on 26 November 2013 and includes but is not limited to:

1.1.4.1 information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person; 

1.1.4.2 information relating to the education or the medical, financial, criminal or employment history of the person; 

1.1.4.3 any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;

1.1.4.4 the biometric information of the person; 

1.1.4.5 the personal opinions, views or preferences of the person; 

1.1.4.6 correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; 

1.1.4.7 the views or opinions of another individual about the person;

and 

1.1.4.8 the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person. 

1.1.5 “the effective date” means the date of signature of this Agreement’; 

1.1.6 “the parties” means the parties as described hereinabove; 

1.1.7 “divulge” or “make use of” means to reveal, make known, disclose, divulge, make public, release, publicise, broadcast, communicate or correspond or any such other manners of divulging of any information. 

1.1.8 ‘‘processing’’ means any operation or activity or any set of operations, whether or not by automatic means, concerning personal or any information, including but not limited to: 

(a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use; 

(b) dissemination by means of transmission, distribution or making available in any other form; or 

(c) merging, linking, as well as restriction, degradation, erasure or destruction of information.

 1.1.9 POPI” means the Protection of Personal Information Act adopted by the Republic of South Africa on 26 November 2013 and as amended from time to time.

2. WHEREAS IT IS AGREED THAT

2.1 All parties agree that they will comply with POPI regulations and process all the information and/or personal data in respect of the services being rendered in accordance with the said regulation and only for the purpose of providing the Services set out in the agreement to provide services.

2.2 The company (also called the service provider), all the parties to this agreement, the service provider’s employees and the client’s employees and any subsequent party/parties to this agreement acknowledge and confirm that:

a) One or more of the parties to this agreement, will possess and will continue to possess information that may be classified or maybe deemed as private, confidential or as personal information;

b) Such information may be deemed as the private, confidential or as personal information in so far as it relates to any party to this agreement;

c)Such information may also be deemed as or considered as private, confidential or as personal information of any third person who may be directly or indirectly associated with this agreement;

d) Further it is acknowledged and agreed by all parties to this agreement, that such private, confidential or as personal information may have value and such information may or may not be in the public domain.

2.3 For purposes of rendering services on behalf of the client, the service provider and any party associated with this agreement and/or any subsequent or prior agreement that may have been/will be entered into, irrevocably agree that “confidential information” shall also include inter alia and shall mean inter alia:

a) all information of any party which may or may not be marked “confidential,” “restricted,” “proprietary” or with a similar designation;

b) where applicable, any and all data and business information;

c) where applicable the parties may have access to data and personal and business information regarding clients, employees, third parties and the like including personal information as defined in POPI regulation; and

d) trade secrets, confidential knowledge, know-how, technical information, data or other proprietary information relating to the client/service provider or any third party associated with this agreement and (including, without limitation, all products information, technical knowhow, software programs, computer processing systems and techniques employed or used by either party to this agreement and/or their affiliates.

3. CONSENT TO COLLECTION, USE, AND DISCLOSURE OF PERSONAL INFORMATION

3.1 By signing hereunder, all parties irrevocably agree to abide by the terms and conditions as set out in this agreement as well as you irrevocably agree and acknowledge that all information provided, whether personal or otherwise, may be used and processed by the service provider and such use may include placing such information in the public domain. Further it is specifically agreed that the service provider will use its best endeavors and take all reasonable precautions to ensure that any information provided, is only used for the purposes it has been provided.

3.2 It is agreed that such information may be placed in the public domain and by signature hereunder, all parties acknowledge that they have read all off the terms in this policy and that they understand and agree to be bound by the terms and conditions as set out in this agreement.

3.3 It is confirmed that by submitting information to the service provider, irrespective as to how such information is submitted, you consent to the collection, collation, processing, and storing of such information and the use and disclosure of such information under this policy.

4. NOTIFICATION REQUIREMENT

SHOULD YOU NOT AGREE TO THE TERMS AND CONDITIONS AS SET OUT IN THIS AGREEMENT AND CONSENT DECLARATION, YOU MUST NOTIFY THE SERVICE PROVIDER IMMEDIATELY FAILING WHICH IT WILL BE DEEMED THAT YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS SET OUT ABOVE.

These updates include:

• • Aligning terminology with the revised Terms and Conditions
  • Clearly referencing POPIA and using terms defined within the Act
  • Specifying the purpose of data processing
  • Outlining the categories of Personal Information collected and processed
  • Obtaining explicit consent for the collection, use, and disclosure of Personal Information
  • Providing a clear option to object to the processing of Personal Information

___________________________________________________________________________________________________________

CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time on this page.

At our sole discretion, we reserve the right to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@energysense.co.za.