1.
DEFINITIONS In this agreement –
1.1.
"we" "us"
“iTrace” means International Tracking Routing and Communications Enterprise (PTY)
Ltd (Reg. No. 2014/225782/07) trading as iTrace, and shall include its partners,
employees, agents, reseller, directors, representatives or any other personnel
duly authorised to represent or assist iTrace;
1.2.
“user” “The User” “Customer” shall
mean any person, company, trust, closed corporation or other as deemed a “legal
entity” under the law of the land, and whom utilises the iTrace System, the
iTrace Interface, and/or iTrace supplied services or Products;
1.3.
“Activation Date” shall mean
the date The User’s ITrace Locator is activated, and is the date at which the
services become billable by iTrace on the user. ITrace has the right to
discount their standard rates to the user or to allow a no charge period of
services;
1.4.
“Registration” shall mean one
or more methods by which the user, being facilitated by an iTrace employee or
representative, activated a Locator and/or gains access to the iTrace System
and/or a locator’s data, via the iTrace system, whether such detail is provided
verbally or by means of an application form/s or other documentation;
1.5.
“Login” is the process by which
the User gains access to the System and in so doing agrees to the conditions of
use as per this document;
1.6.
“The User’s Data” shall mean
all information (excluding Personal Information) pertaining to The User or The
User’s property as generated, transmitted, sent received and/or stored by
electronic means pursuant to the use of the ITrace service and/or the Locator;
1.7.
“the GSM Network” shall mean the public
mobile, telecommunications system operated and made available by cellular
service providers such as Vodacom, MTN or CellC;
1.8.
“the Regulatory Authority”
shall mean the Independent Communications Authority of South Africa (ICASA) and
its successors in title, or other such authority which governs the Locator for
whatsoever reason and in whatsoever territory;
1.9.
"Partner" shall mean such
party(ies) contracted with iTrace for the provision of aspects of and/or
portions of the ITrace service and/or additional iTrace services;
1.10.
“System”, “iTrace System” means
the software and related components collectively assembled to provide the
Service for which the Customer Subscribes;
1.11.
"Locator" shall mean
the tracking communication and positioning device, antennas, SIM card, airtime
and fully functional vector-based mapping software, equipment and material
required for the provision of the ITrace service and ancillary or related
equipment;
1.12.
“ITrace service" shall
mean the ITrace tracking service which allows a user to track authorised
individuals and/or vehicles and to subscribe and monitor additional iTrace
services such as security and emergency services and others;
1.13.
“Territory” shall mean the
Republic of South Africa;
1.14.
“Reseller” shall mean a
Reseller appointed by iTrace to market and sell the iTrace products and
services;
1.15.
“Subscription Services” means,
unless specifically otherwise indicated, annually renewable services for which
the Customer subscribes and pays for in order to receive access to System, the
web Interface and mobile Apps, and related communications facilities in order
to allow the Locator to perform as required by iTrace
1.16.
“Interface” means the www.itrace.co.za website
and/or Apps being for IOS or Android or other platforms, and/or associated
software platforms;
1.17.
Words denoting any one gender
shall include the others, the singular shall include the plural and natural persons
shall include other legal entities.
2.
LOGIN & REGISTRATION
2.1.
By Login to the System, via the
Apps, Web Interface, or other as iTrace may make available from time to time,
the Customer acknowledges and accepts the terms and conditions herein, and as
made available on iTrace’s website www.itrace.co.za
. Every time the user access the Interface the user acknowledges and accepts
these Terms and Conditions as stated in this document. It is expressly noted
that should iTrace do the Registration on behalf of the Customer that the
Customer is NOT NEGATED from their responsibility to familiarise themselves
with these Terms and Conditions and has explicitly agreed thereto;
2.2.
By the User supplying to iTrace
his/her personal details during the Registration process, the minimum being the
User’s email address, the User is informed of his binding obligations in terms
of this agreement and has acknowledged his rights and obligations therein;
2.3.
All personal information
obtained by virtue of The User’s registration and use of the Interface is
protected. The User is required to constantly update the User’s personal
information provided on registration on an on-going basis. The user indemnifies
iTrace of any and all damages of whatsoever reason by this information coming
into the possession of any third party.
2.4.
The user may not attempt to use
another party's account, service or system without authorization of that other
party.
2.5.
The User are required to keep The
User’s user identity, password or other unique identifying information secret
and not permit any other person to access the Interface or ITRACE services
using The User’s password or user identity. In the event that the user is
assisted by a third party and/or iTrace during registration the user must
change the user’s password only once payment has been received by iTrace from
the user, unless the service the user is using is free. In the event that The
User become aware that the secrecy or confidentiality of The User’s password or
user identity has become compromised and/or the password or user identity has
been disclosed to any unauthorised person, The User are required to immediately
change The User’s password or user identity.
2.6.
The User is fully responsible
and liable for any use or misuse of the user’s password or user identity. Any
actions or omissions committed on the user’s account will be considered to have
been committed by the user. The User hereby indemnifies iTrace of any claim,
liability, damages, consequential damages or loss arising as a result of the
use or misuse of The User’s password or user identity or for any other reason
whatsoever.
2.6.1.
Should the courts or other
institution find iTrace guilty for whatsoever reason then the User acknowledges
that the maximum loss shall not exceed 1 year’s subscription service of the
Locator/Service involved;
2.7.
ITRACE, in its sole reasonable
discretion or as instructed by the courts, at any time and for any reason
whatsoever, may revoke The User’s password or user identity and consequently The
User’s access to the Interface and/or units. In addition, ITRACE may require The
User to change The User’s password or user identity. The User undertakes to immediately
change the password or user identity if requested to do so by ITRACE.
3.
USE OF THE ITRACE SERVICE
3.1.
The User agree to use the
ITRACE service at The User’s own risk;
3.2.
The User agree that whilst the
use of the Locator and provision of the ITRACE service may reduce the risks of
loss or any danger being faced or of personal injury of the person in
possession of the Locator, it will not eliminate such risk;
3.3.
Any data collected or logged on
the iTrace system is the ownership of iTrace. ITrace has the right to utilise
any and all Locator data collected via the iTrace system as it deems fit
provided such data is not referenced directly to the customer.
3.4.
The User agree that the ITRACE
service and/or any additional iTrace services that The User subscribe to and
the efficient functioning of the Locator is dependent upon the GSM Network, the
electronic and/or telecommunication systems and/or technology of inter alia
cellular service providers and Partner. The User hereby acknowledge and agree
that the GSM Network, the GPS satellite positioning system, electronic and/or
telecommunication systems and/or technology may temporarily or permanently fail,
malfunction, provide limited or no coverage, or there may be reception or other
transmission malfunctions, failures or errors of whatsoever nature.
3.5.
ITRACE will use reasonable
endeavours to make the ITRACE service and the Interface available to The User
at all times but does not guarantee that there will be no interruptions or
periods of unavailability, nor is any level of availability warranted.
3.5.1.
Should the iTrace locator positioning
service be available for less than 99.9% of the time, as calculated over a
calendar year, notwithstanding planned maintenance and associated outages, and
iTrace with refund the user for that pro-rata portion of the period that the
system was not available,
3.6.
The User commits that the user
is entitled to use the iTrace service as contracted to supply, and shall not
use the ITRACE service or Locator for any unlawful or abusive purpose
including, without limiting the generality of the aforegoing, using the ITRACE
service or Locator in any manner that defames, abuses, harasses, stalks,
threatens or otherwise violates the legal rights (such as rights of privacy and
publicity) of others;
3.7.
The User shall not use nor
allow the use of the ITRACE service for any improper or unlawful purpose, nor
in any way which may cause injury or damage to persons or property or which may
cause an impairment or interruption to the ITRACE service or the GSM Network;
3.8.
The User shall be responsible
for obtaining all necessary permits, approvals or authorizations imposed by any
competent authority, which are necessitated by the use of the Locator;
3.9.
The User will not allow or permit any person
to reverse engineer, decompile, modify or tamper in any way with the Locator;
3.10.
The User will have the option to include additional
iTrace services at an additional charge payable on a month to month or yearly basis.
The provision of such additional iTrace services is subject to the standard
terms and conditions applicable thereto from time to time with which the
Customer undertakes to acquaint himself;
3.11.
Please note that some of the additional
iTrace services may be provided by Partner (including without limitation
emergency and/or recovery/strategic intervention units) and will be subject to
the terms and conditions of the Partner. By subscribing for the additional
iTrace services provided by such Partner the User agree to be bound by their
terms and conditions. The User hereby acknowledge and agree that The User shall
have no claim of whatsoever nature against ITRACE (and to the extent necessary
hereby waive any such claim), nor are The User able to cancel this agreement,
nor shall The User withhold payment of any monies due to ITRACE, as a result of
any negligent act or omission by any third party service provider.
3.12.
ITRACE shall not be liable to The
User or any other person for any loss of profit or special damages, or any
indirect or consequential damages of any nature whatsoever, arising out of a
breach by any third party service provider of any of its obligations in
providing the additional iTrace services, or arising from any negligent conduct
of any third party service provider and/or any of its employees, directors,
and/or contractors, and/or sub-contractors, representatives, agents and/or
shareholders pursuant hereto.
3.13.
The User understand and agree
that any person knowing the device cellular number, can call The User’s
personal tracker and in some cases silent eaves-dropping may be possible and
the Locator may be configured to make external calls as required and configured
by The User.
4.
WARRANTIES
4.1.
ITRACE makes no representations
or express warranties about the suitability, reliability, availability,
timeliness, and accuracy of The User’s Data, the ITRACE service or the Locator
for any purpose and disclaims any and all implied warranties, including,
without limitation, any warranties of merchantability or fitness for a
particular purpose, to the maximum extent permitted by applicable law. ITRACE
cannot guarantee and does not promise any specific results from the use of The
User’s Data and/or the ITRACE service.
4.2.
ITRACE does not represent or
warrant that The User’s Data is accurate, complete, reliable, current or
error-free or that the Interface or its servers, or any platform applications
are free of viruses or other harmful components, therefore, The User should
exercise caution in the use of The User’s Data. Without limiting the foregoing,
The User will be solely responsible for the use of The User’s Data and agree to
use it at The User’s own discretion and risk.
4.3.
The User warrants that the User
may not claim to be a representative of iTrace unless such arrangement is made
with iTrace and reduced to writing and signed by iTrace.
5.
SUSPENSION / DISCONNECTION
5.1.
ITRACE may from time to time
and without notice to The User, suspend the provision of the ITRACE service to The
User or disconnect the Locator from the GSM Network, during any technical
failure, modification or maintenance of the GSM Network; for non-payment or if The
User fail to comply with any of the terms and conditions of this agreement; or
if so directed by the Regulatory Authority for whatsoever reason;
5.2.
Having regard to the
circumstances at the time of suspension, disconnection or reconnection, as the
case may be, ITRACE shall be entitled to levy a reasonable fee in respect of
such suspension, disconnection and/or any subsequent reconnection.
5.3.
In the event that The User
terminate the ITRACE service, ITRACE shall be entitled to disconnect and/or
deactivate the Locator and the ITRACE service at the end of the last month for which
The User has paid and given at least 1 full calendar months’ notice or any
earlier date agreed to between iTrace Call Centre and the User. Any additional
iTrace services The User would have opted for will automatically be terminated.
5.4.
The User acknowledges that
through the purchase of a Locator or otherwise they will come into the
possession on a GSM SIM belonging to iTrace.
5.4.1.
Should the User cancel the
iTrace service, as indicated above, or through whatever means terminates its
arrangement with iTrace then it is the obligation of the User to return the GSM
SIM undamaged and in original working order. Failing to do so the User agrees
to pay to iTrace 1 month’s service as per previously contract and to pay iTrace
a replacement fee for the SIM of no more than R250 (two hundred and fifty Rand)
depending on the period of use of the SIM if such service is contracted between
iTrace and The User for less than 2 years.
5.5.
Termination of Service by the
User is only possible if the User’s account is fully paid up, including to the
final date of last usage of the iTrace service and return of the GSM SIM.
5.5.1.
Should payment for the iTrace
services or if the GSM SIM has not been received by iTrace before the final
date of service then the User acknowledges that the iTrace Service agreement
remains in force and the User shall remain liable for service and/or GSM SIM
costs until payment in full has been received.
6.
DAMAGE TO AND THEFT OR LOSS OF
THE LOCATOR
6.1.
Ownership of the Locator will
vest in The User, but no right, title or interest in or to any software
contained in or pertaining to the Locator will vest in The User.
6.2.
All risk in and to the Locator
shall pass to The User upon receipt of the Locator independent of the Activation
Date, and The User will be responsible for any loss, theft or replacement of
the Locator from this date unless otherwise contracted with iTrace.
6.3.
In the event of theft or loss
of the Locator, The User is entitled to request ITRACE to disable the Locator,
by electronic or other means, thereby preventing its further use. ITRACE may,
at The User’s request and at a cost to The User, replace the Locator so lost,
stolen or damaged, provided The User are not in default of The User’s payment
obligations.
6.4.
Any damage to or theft or loss
of The User’s Locator shall not affect The User’s liability to continue to pay
the subscription fees to ITRACE.
7.
DATA, PRIVACY AND DISCLOSURE OF
INFORMATION
7.1.
ITRACE shall only use The
User’s Personal Information for the purpose of administering the service and,
shall only disclose such Personal Information to such of its Partners as is
necessary to enable the provision of the ITRACE service or as required to do so
by court order;
7.2.
ITRACE and/or the Partners may
be required to intercept, collect, collate, process, store and maintain The
User’s Data for purposes of effectively servicing the User. With effect from
the Activation Date, The User hereby consents to ITRACE and/or the Partners,
intercepting, collecting, collating, processing, storing and maintaining The
User’s Data (For purposes of this clause “intercept” shall mean the aural or
other acquisition by ITRACE, or the Partners, of The User’s Data through the
rendering of the ITRACE service and/or the operation of the Locator, including
without limitation monitoring of The User’s Data; viewing, examination or
inspection of The User’s Data and diversion of The User’s Data from ITRACE to
any other destination).
7.2.1.
ITrace categorically commits
not to volunteer such Locator data, outside of normal internal requirement to
deliver the service to the User, to any third Party unless obliged to do so by
court order.
7.3.
ITRACE may, to the extent
permitted by law, receive or disclose The User’s Personal Information, documents,
credit profile information and/or any other credit information from or to any
credit providers, credit bureau or credit reporting agencies; any law
enforcement agencies, through court order, that require the information for the
prevention or investigation of criminal activities; any of ITRACE’s
shareholders, related entities, suppliers, agents or professional advisors for
reporting, accounting, product supply and service, marketing and/or auditing
purposes; any subsidiary or holding company of ITRACE for any purpose connected
with the ITRACE service or for marketing or incentive scheme purposes and to
any Partners connected with the ITRACE service, as required.
7.4.
Whilst all reasonable
precautions will be taken to protect The User’s Data, information transmitted
via a telecommunication system is susceptible to potential unlawful access,
distortion or unintended monitoring by third parties. ITRACE cannot guarantee
that unscrupulous third parties will not gain access to The User’s Data. In
this regard, The User hereby undertake to comply with ITRACE’s security
operating instructions, guidelines, operating procedures and policies, if any
(including keeping any logon access codes and passwords permitting The User
access to the Interface confidential). Such security operating instructions and
policies may be amended from time to time.
8.
LIMITATION OF LIABILITY
8.1.
The User agree, that ITRACE
shall not be liable to The User (and to the extent permitted by law hereby
waive any such claim) or any other person for, inter alia -
8.1.1.
any loss, harm or damage
suffered by The User as a result of any unlawful access, distortion or
unintended monitoring or theft by third parties of The User’s Data;
8.1.2.
any loss, damage, liability
and/or expense of whatsoever nature suffered by The User, as a result of any
non-availability, any interruption, malfunction, downtime or other failure of
the GSM Network or the ITRACE service or the Interface or any component or
constituent part thereof, including without limitation The User’s failure to
access The User’s Data, whether directly or indirectly caused by a malfunction
of the GSM Network, electricity failure and/or stoppage, interruptions or
periods of unavailability of the ITRACE service, the GSM Network and/or the Interface;
or the GSM Network providing limited or no coverage; or should there be any
reception or other transmission malfunctions, failures or errors of whatsoever
nature; any damages (of whatsoever nature) which The User may suffer as a
result of a compromise of The User’s logon access passwords to the Interface;
8.1.3.
termination of any license to
operate or use the GSM Network or other such license;
8.1.4.
act of god, government control,
restrictions or prohibitions or other government act or omission, whether local
or national, industrial disputes or any other cause beyond the control of
ITRACE or arising from any negligent conduct of ITRACE and/or any of its
employees, directors, and/or contractors, and/or sub-contractors,
representatives, agents and/or shareholders and/or the Partners pursuant hereto.
9.
SUBSCRIPTION SERVICE RENEWAL
9.1.
In order to prevent
interruption of Services, and unless otherwise arranged with iTrace IN WRITING,
the User’s Subscription Service is charged Annually (or part thereof to bring
multiple Locators’ billing cycles together). Such the User NOT cancel the
service prior to 1 month prior to the renewal date then the Subscription
Service/s are automatically renewed and the Customer is liable for the full years’
service.
10.
COMPLAINT RESOLUTION
10.1.
In the interest of providing
customer service excellence, and the protection of consumer rights, ITRACE
provides a Service Centre contactable on 08600-22-170, or info@itrace.co.za, to diligently attend to
The User’s assistance required.