Terms & conditions
1.1 The subscriber requires certain asset tracking Fetchme! Device and tracking services from Fetchme!. Fetchme! has agreed to provide, and the subscriber has agreed to accept, the provision of the asset tracking Fetchme! Device and Fetchme! service to the subscriber on the terms set out below.
2. DEFINITIONS AND INTERPRETATION
2.1 In this agreement, unless inconsistent with or otherwise indicated by the context –
2.2 “Application Schedule” means the online registration form which sets out the identity of the Subscriber, the details of the Fetchme! Device that will be provided by Fetchme! to the Subcriber and the fees payable by the Subscriber to Fetchme! for the Fetchme! Service;
2.3 “Business Day” means Monday to Friday, excluding weekends, being Saturday and Sunday and excluding public holidays as defined under the Public Holidays Act, 36 of 1994;
2.4 “Agreement” means the agreement set out in this document including all annexures and schedules hereto including, but not limited to, the Application Schedule and the Fetchme! User Manual;
2.5 “Effective Date” means the date that the Fetchme! Device is activated by the Subscriber;
2.6 “Fetchme! Device” means the mobile Fetchme! tracking unit and SIM card and any piece of additional Fetchme! Device which has been supplied by Fetchme! for the purposes of providing the Fetchme! Service to the Subscriber;
2.7 “Network” means the cellular servicer provider or providers that the Fetechme Tracking device utilises.
2.8 “Initial Period” means the period stated in the Application Schedule completed by the Subscriber;
2.9 “Fetchme!” means Fetchme! PTY (LTD) registration number 2017/063154/07
2.10 “Fetchme! Service” means the tracking service provided by Fetchme! to the Subscriber in terms of this Agreement utilizing the Fetchme! Device;
2.11 “Fetchme! User Manual” means the Fetchme! user manual, training materials and related documents provided to the Subscriber by Fetchme!, which provides instructions as to how the Fetchme! Tracking Service operates including how the Subscriber must use the Fetchme! Device;
2.12 “Parties” means the Subscriber and Fetchme! collectively and “Party” means either the Subscriber or Fetchme! as the context may indicate;
2.13 “Subscriber” means the party identified in the Application Schedule;
2.14 “Territory” means the Republic of South Africa;
2.15 “Website” means the website www.Fetchme!.com
2.16 Words referring to the singular form will include the plural and vice versa and words referring to one gender will include the other gender and vice versa.
3. AGREEMENT TO PROVIDE THE Fetchme! SERVICE
The Subscriber has agreed to Agreement with Fetchme! for the Fetchme! Service and Fetchme! has agreed to provide the Fetchme! Service to the Subscriber on the terms and conditions set out herein.
4. DURATION OF THE AGREEMENT
4.1 This Agreement shall commence on the Effective Date and shall endure for the Initial Period, unless terminated earlier by either of the Parties in accordance with the terms of this Agreement.
4.2 On the expiry of the Initial Period this Agreement will automatically renew on a month-to-month basis with either Party having the right to terminate this Agreement on a calendar month’s prior written notice to the other Party.
5. THE Fetchme! SERVICE, Fetchme! DEVICE AND WARRANTIES
5.1 Fetchme! will provide the following services in terms of this Agreement:
5.2 The Website or a smartphone application which involves the receipt and transmission of information regarding the position of the Fetchme! Device, this information being transmitted by the Fetchme! Device.
5.3 Fetchme! will provide the Subscriber with the Fetchme! Service for the duration of the Agreement, provided that the Subscriber complies with its obligations in terms of this Agreement.
5.4 The Subscriber agrees that the Fetchme! Service cannot be provided by Fetchme! or used by the Subscriber unless the Fetchme! Device is programmed, enabled and functioning to its manufacturer’s specifications.
5.5 The Subscriber will, at its own cost, obtain and take delivery of the Fetchme! Device from Fetchme! or alternatively a designated courier of Fetchme!.
5.6 All risk of loss and damage in and to the Fetchme! Device will, upon the date of delivery, pass to the Subscriber.
5.7 The Fetchme! Device will carry a 12 (twelve) month warranty, subject to fair wear and tear which is excluded.
5.8 The Subscriber agrees not to alter or modify the Fetchme! Device under any circumstances. If altered or modified the warranty provided will not apply and Fetchme! will not have any obligation to repair or replace the Fetchme! Device or to provide the Fetchme! Service, or refund to the Subscriber any amounts claimed by the Subscriber, in respect of any warranty, damages or contractual claim of whatsoever nature.
5.9 The Subscriber acknowledges he will be liable to ensure the proper functioning of the Fetchme! Device and that the Fetchme! Device is at all times charged and in a suitable condition, and further that the Supplier will not be liable where the Subscriber has incurred any loss due his/her own fault or negligence.
5.10 Where the Fetchme! Device is not in use for any reason, or is not functioning properly, and the Subscriber has not made any attempt to have the Fetchme! Device repaired by Fetchme!, the Subscriber will still be liable to pay the Fetchme! Service fee.
5.11 The Subscriber agrees to use the Fetchme! Device and the Fetchme! Service in accordance with the Fetchme! User Manual and other literature provided by Fetchme! from time to time.
5.12 In the event of loss, damage or theft of the Fetchme! Device or SIM card, the Subscriber will report such loss, damage or theft to Fetchme! immediately.
6. Fetchme! SERVICE FEES
6.1 The fees for the Fetchme! Service will include the following:
6.2 Where the Fetchme! Device is purchased by the Subscriber, the once off purchase price for the Fetchme! Device;
6.3 The SIM Card data service;
6.4 Any further costs related to subscription data service.
6.5 All fees will be paid by way of debit order in favour of Fetchme! free of bank charges or in any other manner approved by Fetchme!, monthly in advance on or before the 7th (seventh) day of each calendar month or such date as specified in the debit order authorization contained in the Application Schedule.
6.6 Should any debit order be returned unpaid or dishonoured for any reason, the Subscriber authorises Fetchme! to submit additional debit orders as may be necessary for the full outstanding balance including any arrear amounts.
6.7 Fetchme! will have the right to increase the Fetchme! Service fees and charges on an annual basis (this could be phased to into account the package/ subscription that has been opted for), provided that such increase is reasonable and that it provides the Subscriber with at least 1 (one) month’s prior written notice of such increase.
6.8 The Subscriber shall not be allowed to withhold payment of any fees or other amounts due to Fetchme! where the Fetchme! Device is not functioning properly for any reason. Where this is the case, the Subscriber must immediately inform Fetchme! and make the necessary arrangements with Fetchme! for the Fetchme! Device to be repaired by a Fetchme!.
6.9 If the Subscriber fails to pay to Fetchme! any amount owing in terms of this Agreement, Fetchme! shall have the right to suspend the Fetchme! Service and will give the Subscriber 5 (five) days to make payment of all outstanding amounts. Should the Subscriber not make payment thereafter, Fetchme!, Fetchme! shall have the right to terminate the Agreement and claim all existing and future amounts which may be due in terms of the Agreement.
7.FURNISHING INFORMATION AND NOTICES
7.1 The Subscriber confirms that all information which it has provided to Fetchme! in terms of the Agreement is true and accurate and can be relied on by Fetchme!.
7.2 If there is any change to the information set out in the Agreement, the Subscriber shall notify Fetchme! immediately in writing of the change. Where the Subscriber fails to give Fetchme! written notice of any changes then the Subscriber agrees to hold Fetchme! harmless should Fetchme! rely or act upon the former and outdated information.
7.3 Where Fetchme! is required to notify the Subscriber or its contact person of any fact, notice and document relating to or in connection with this Agreement, Fetchme! will communicate such message or notice using any form of electronic communication of its choice, including communication sent by fax, SMS, email or phone or via the website as Fetchme! deems appropriate and the Subscriber agrees that communication can be given in such a manner.
7.4 Where a legal notice is to be served, in terms of the Agreement on the Subscriber, the Subscriber chooses its address for service of all legal notices and documents in connection with this Agreement (domicilium citandi et executandi) at its physical address as set forth in the Application Schedule.
7.5 Where legal notice is to be served, in terms of the Agreement on Fetchme!, Fetchme! chooses its respective address for service of all legal notices and documents in connection with this Agreement (domicilium citandi et executandi) at the following physical addresses: ?
8. EXCLUSION OF LIABILITY
8.1 The Subscriber accepts that the Fetchme! Service is intended to reduce the risk of loss but that no guarantee or warranty against any loss is provided to the Subscriber by Fetchme!.
8.2 The subscriber agrees to hold Fetchme! harmless for any loss or damage caused to the Subscriber or any third party arising from the Fetchme! Service, and or Fetchme! not being able to perform the Fetchme! Service for any reason, including Fetchme!’s negligence, or due to any malfunction of the Fetchme! Device and/or the Network.
9. FORCE MAJEURE
If Fetchme! is prevented or restricted in any way from carrying out all or any of its obligations under this Agreement by reason of force majeure (an event or circumstance beyond the control of the Parties, such as a war, strike, riot, crime, or an “act of God” such as flooding or an earthquake which prevents one or both Parties from performing their obligations under the Agreement), then Fetchme! shall be relieved of its obligations to provide the Fetchme! service during such period of force majeure, and Fetchme! shall not be liable for any loss, damage, action or claim which may be brought by the subscriber or by any other party in consequence of such delay or inability to perform.
10. BREACH AND CONSEQUENCES
10.1 If the Subscriber:
10.1.1 fails to pay any amount in terms of this Agreement on due date; or
10.1.2 fails to carry out or perform any of its contractual obligations or
10.1.3 breaches any term or condition of this Agreement; or
10.1.4 in Fetchme!’s reasonable opinion abuses the Fetchme! Service (referred to as “the breach”):
then Fetchme! may immediately suspend the Fetchme! Service and provide the Subscriber with a written notice requiring it to rectify the breach within 5 (five) Business Days of the date of such notice. Should the Subscriber fail to remedy the breach then Fetchme! shall be entitled to terminate this Agreement.
11.1 This Agreement will be interpreted in accordance with the laws of the Republic of South Africa.
11.2 Should any provision of this Agreement be declared unlawful whilst the Agreement is in force, such provision will be deleted from the Agreement and the remaining parts of the Agreement will continue to operate.
11.3 Fetchme! shall have the right to change the terms of this Agreement upon written notice to the Subscriber.
11.4 Where one of the Parties does not act on a breach of the Agreement by the other Party, failure to act will not result in that Party giving up its rights to act upon that breach or another breach, at a later stage.
11.5 The Subscriber shall not be able to transfer, cede, delegate or assign its rights or obligations in terms of this Agreement to another person without the prior written consent of Fetchme!, which consent will not unreasonably be withheld.
11.6 Fetchme! shall be entitled to transfer, cede, delegate or assign its rights or obligations under this Agreement provided that the Subscriber is not reasonably prejudiced in any manner.