Terms & Conditions

Waiver and Disclaimer

This Disclaimer & Waiver (hereinafter referred to as this “Agreement”) records the acknowledgment of, and agreement to the extent of the liability of THE TRACKING COMPANY towards the customers of THE TRACKING COMPANY.

THE TRACKING COMPANY SA (PTY.) LTD., (a Private Company duly incorporated and registered in terms of the Laws of the Republic of South Africa) WITH REGISTRATION NUMBER 2019/370690/07 trading under the name and style “THE TRACKING COMPANY” (for purposes herein referred to as "THE TRACKING COMPANY") having its registered offices situated at 2 Soluta Street, Sunset Beach, South Africa, 7441.

A.    This Agreement describes specific terms and conditions, and the liability of THE TRACKING COMPANY towards its customers that are applicable to customer’s access to the services of, and use of the services of THE TRACKING COMPANY, and also customer’s purchase and/or rental and/or use of hardware and/or goods supplied by THE TRACKING COMPANY.

B.    You signify your acceptance of this Agreement in any one of the following manners: 
B1. By accepting the terms of this Agreement, whether tacitly or expressly, through means of any usage of the Tracking Platform or communication across any electronic medium;

B2. By using Content containing, or providing a link to a copy of this Agreement;

B3. By using services and/or hardware and/or goods providing a link to a copy of this Agreement;

B4. By accessing any website and/or other electronic media platform that contains, or provides a link to a copy of this Agreement.

C.    THE TRACKING COMPANY reserves its right to, and the customer agrees that THE TRACKING COMPANY may revise this Agreement at any time by posting the revised agreement on its website, and you agree that your continued use of the Content and/or services and/or hardware and/or goods after such changes will constitute your acceptance of such changes.

D.    “services” and/or “hardware” and/or “goods” are collectively referred to herein after as the “Products’.

From herein below the word “you” shall mean the “customer” and any other juristic entity or other legal personality that you represent herein; furthermore, being the signatory of this Agreement you guarantee that you are authorised to represent such juristic entity or other legal personality and you bind yourself to any such juristic entity. or other legal personality as mutually and severally in solidum the one paying the other to be absolved as surety for the performance of all obligations due to THE TRACKING COMPANY by such juristic entity or other legal personality that you purport to represent, or that you do de facto represent.

E.    The content of all THE TRACKING COMPANY brochures, catalogues, publications, specifications, information, representations and websites (hereinafter referred to as the “Content”) are provided as a service to customers, colleagues, and others for general information only and the Content is neither intended to create any reliance upon same, nor is the Content intended to induce the customer to enter into any agreement with THE TRACKING COMPANY. You should neither take, nor refrain from taking action based on the Content. THE TRACKING COMPANY accepts no responsibility for any loss or damage that may result from accessing or reliance on Content and THE TRACKING COMPANY disclaims, to the fullest extent permitted by Law, any and 
all liability with respect to acts or omissions made by customers or any other legal personality (whether natural or juristic) on the basis of Content. Rankings and other materials from directories, reviews, websites, other publications and other sources (all not being connected or associated with THE TRACKING COMPANY) may refer to Content in regards which THE TRACKING COMPANY bears no liability.

1.    Changes.

THE TRACKING COMPANY may make changes to this Agreement and/or the Content and/or Product at any time.

2.    Proprietary Rights.

The Product and the Content are the intellectual property of THE TRACKING COMPANY and/or its suppliers and/or its licensors. You  agree to use the product specifically as per the directions of THE TRACKING COMPANY, and you agree not to disassemble, reprogram, repurpose, bastardise, reproduce, duplicate, copy, sell, resell, exploit for any commercial purpose, or backwards engineer the whole of, or any portion of the Product or the Content other than as expressly authorized by THE TRACKING COMPANY in writing. The product must be used in conjunction with other materials and hardware only as are approved in writing by THE TRACKING COMPANY. You hereby acknowledge and agree that, as between THE TRACKING COMPANY and you, all right, title, and interest in and to the Product and the Content shall be owned exclusively by THE TRACKING COMPANY and/or its suppliers and/or licensors.

Use, or abuse of the Product or the Content in any way neither expressly permitted by this Agreement, nor by THE TRACKING COMPANY in any other agreement is prohibited. In the event that you breach this clause of this Agreement then THE TRACKING COMPANY shall bear no liability towards you, or towards any natural person or juristic personality for any damage, or loss or in respect of any claim in respect of the Product and/or the Content, and you shall be liable for any such damage, loss or claim arising directly, or indirectly from your breach of this clause.

3.    Duty to Inspect and Verify.

The Content and the Product are provided solely on an “AS IS” and “AS AVAILABLE” basis. You are encouraged to inspect the Product / Service regularly and immediately after purchase or delivery of same, and to inform THE TRACKING COMPANY immediately or urgently of any defect or unavailability of the Product or service. 

4.    Disclaimers and Limitation of Liability.

a.    Content and services are provided to you on an “as is” and “as available” basis without warranty of any kind either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. THE TRACKING COMPANY makes no warranty as to the accuracy, completeness or reliability of any content available. You are responsible for verifying any information before relying on it. Use of the Content available is at your sole risk.

b.    THE TRACKING COMPANY makes no representations or warranties that use of the Product will be uninterrupted or error-free. You are responsible for taking all necessary precautions to ensure that the Product or Service is received in good working order, and remains as such. 

c.    To the maximum extent permitted by applicable law, THE TRACKING COMPANY disclaims all liability, whether based in contract, delict (including negligence) or otherwise, and further disclaims all losses, including without limitation indirect, incidental, consequential, or special damages arising out of or in any way connected with access or lack of access to, or use of the product and/or content, the content, or the goods offered or sold by THE TRACKING COMPANY, or its agents, franchisees or any retailer (whether or not such retailer is authorised) or through any other website, regardless of whether or not THE TRACKING COMPANY has been advised of the possibility of such damages.

d.    THE TRACKING COMPANY shall have no liability for any claim based on, or arising out of:

(i)    Software or applications which has been modified by parties other than licensor or THE TRACKING COMPANY;
(ii)    customer’s use of the software or applications in conjunction with data where use with such data gave rise to the claim; or
(iii)    customer’s use of software or applications or hardware approved by THE TRACKING COMPANY with non-approved or non-licensor software and/or applications and/or hardware where use with such other software or hardware gave rise to the infringement claim.

e.    THE TRACKING COMPANY make no warranty or representation and disclaim all responsibility and liability for:

(i)    the completeness, accuracy, availability, timeliness, security or reliability of the Product, Service or any Content;

(ii)    any harm to your property (whether movable or immovable), your computer system, loss of data, or other harm that results from your access to, (or lack of access to) , the installation of or use of the Product or Content; 

(iii) THE TRACKING COMPANY shall not be liable for any loss or damage resulting from late delivery or any installation of the Equipment. Installation is carried out by the Customer, the Customer’s employees, agents, representatives or nominated sub-contractors (“Self- install”). The Tracking Company shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence, or any other cause relating to the installation of the Equipment.

(iv)    the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services and/or Product; and

(v)    whether or not the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. 

(vi)    No advice or information, whether oral or written, obtained from THE TRACKING COMPANY or through the Services, will create any warranty or representation not expressly made herein.

f.    To the maximum extent permitted by Law, THE TRACKING COMPANY shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from:

(i)    your access to or use of or inability to access or use the services;

(ii)    any conduct or Content of any third party on the services, including without limitation, any defamatory, offensive or illegal conduct of other users or third parties;

(iv)    any CONTENT or material obtained in relation to the Product or from third parties; or

(v)    unauthorized access, use or alteration of your transmissions, data or Content.

5.    Links To Other Sites in THE TRACKING COMPANY WEBSITE and Software and Applications of Third Parties.

The website of THE TRACKING COMPANY may contain links to websites operated by other parties. The software and applications provided by THE TRACKING COMPANY may be authored and/or provided by third parties, or may function through software and applications provided by third parties. THE TRACKING COMPANY provides these software and applications, and these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites, and the software and applications provided by third parties are not under the control of THE TRACKING COMPANY, and THE TRACKING COMPANY is not responsible for any harm, damage or litigation arising from use of same. Any such links, and usage of any such software and applications provided by third parties do not imply THE TRACKING COMPANY’s endorsement of information or material on any other site, and THE TRACKING COMPANY does not endorse or guarantee any such software and applications provided by third parties; THE TRACKING COMPANY disclaims all liability with regard to your access to and use of such linked websites and software and applications provided by third parties.

 

6. Indemnity.
You agree to indemnify, defend and hold THE TRACKING COMPANY, its subsidiaries, and affiliates, and their respective officers, agents, members, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, due to or arising out of your use of the Product and/or breach of this Agreement. The customer shall indemnify and hold the THE TRACKING COMPANY harmless against any expense, loss, claim, harm or damage brought against, suffered or sustained by the customer which arises directly out of a breach of the terms of this Agreement by the customer or as a result of the gross negligence or intentional misconduct of the customer.

7.Copyright.
The Content is protected by international copyright laws. Copyright vests upon creation of Content. Except for your use as authorized above, you may not modify, reproduce or distribute the Content, design or layout of the website of THE 
TRACKING COMPANY, or individual sections of Content without THE TRACKING COMPANY’s express prior written permission.

   8.Termination of Services.
THE TRACKING COMPANY may, in its sole discretion, disable and/or terminate use of services by users who infringe the intellectual  property of others, or due to non-payment for any hardware supplied or subscriptions due.

   9.Privacy Policy.
By agreeing to these terms, you acknowledge that THE TRACKING COMPANY may collect, use and disclose your information as described in its Privacy Policy as may be published from time to time, as may be available on the website of THE TRACKING COMPANY regarding which you undertake to keep yourself informed.

  10. Data Processing.
THE TRACKING COMPANY processes personal data related to and/or received from our numerous customers (including but not limited to video, audio and global positioning system information) and THE TRACKING COMPANY ultimately takes responsibility for managing that data in compliance with applicable data and privacy regulations. The information processed by THE TRACKING COMPANY is of such an immense volume, and relates largely to unknown individuals in the context of monitoring and security, and generally THE TRACKING COMPANY operates as a conduit for such data, that consequently the obligation to enter into a personal data processing agreement would naturally be impossible and/or highly impractical, and generally does not apply to THE TRACKING COMPANY and such agreements shall not be signed by us unless THE TRACKING COMPANY deems necessary. By accepting the terms of this Agreement, you agree that THE TRACKING COMPANY may utilise your personal data upon an ad hoc basis, with due regard to the nature of such data, and the context and necessity of such usage to the fullest extent allowable under applicable Law.

11.    Miscellaneous.

a.    If any clause, or any portion of any clause of this Agreement is held to be illegal, invalid or unenforceable, such clause or portion thereof shall be struck and the remaining clauses shall remain in full force and effect.

b.    Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such clause.

c.    THE TRACKING COMPANY’s failure to act with respect to any failure by you or others to comply with these Terms of Use does not waive THE TRACKING COMPANY’s right to act with respect to such failure in future, or in respect of any subsequent or similar failures.

d.    This Agreement sets forth the entire understanding and agreement between you and THE TRACKING COMPANY with respect to the subject matter hereof unless THE TRACKING COMPANY has created specific or other written terms that conflict with this Agreement – in such event such other conflicting terms shall prevail. Future amendments to this Agreement shall supersede this Agreement.

e.    Any litigation, whether by way of action or by application proceedings in respect of relief against THE TRACKING COMPANY that you may have, or that may come into existence with respect to this Agreement or the Content must be commenced within six (6) months after such cause of action arises or after such relief may possibly be sought failing which litigation in respect of such relief or cause of action shall be barred.

f.    You may not assign or transfer your rights or obligations under this Agreement without the prior written consent of THE TRACKING COMPANY, and any assignment or transfer in violation of this provision shall be null and void.

g.    THE TRACKING COMPANY reserves the right to seek all remedies available at Law for violations of this Agreement as per the Law in force in the Republic of South Africa.
h.    Interpretation of this agreement and all other agreements between the customer and THE TRACKING COMPANY in addition to all litigation between the customer and THE TRACKING COMPANY must be conducted in the Republic of South Africa which will have sole jurisdiction to adjudicate such litigation by application of South African Law. No choice of Law rules shall be applicable save for the terms of this clause in determining jurisdiction. The doctrine of Renvoi and the principle of Passive Territoriality shall have no application between the customer and THE TRACKING COMPANY and only this clause shall be applicable in choice of Law and determining jurisdiction and the legal system applicable.

i.    The contra proferrentum rule or “Rule of Construction” that this agreement must be interpreted against the party at whose instance it was drafted shall not apply to the interpretation of this agreement.

j.    The Parties agree that if there is a dispute about this Agreement, it can be heard in the Cape Town Magistrate’s Court; but this does not detract from the jurisdiction of any Provincial Division of the High Court of South Africa. Either party can still bring legal proceedings in the Cape Town Magistrate’s Court, even if the amount of the claim may be more than the jurisdiction of that court.

k.    The risk in all Product, Content, goods, products and stock provided by the THE TRACKING COMPANY shall pass to the customer upon delivery.
l.    All product and company names are trademarks™ or registered® trademarks of their respective holders. Use of them does not imply any affiliation with or endorsement by them.