Terms And Conditions
The Customer wishes to make use of the Services of GIBBOR SECURITY based on the terms and conditions stipulated in this Agreement. GIBBOR SECURITY shall provide the Services to the Customer at the Premises subject to the terms and conditions stipulated in this Agreement from the Start Date.
- Act: The Private Security Industry Regulation Act 56 of 2001 and the Regulations in respect thereof, as amended from time to time.
- Agreement: means this Agreement together with the Pintry Order Form and schedules and any appendices attached thereto, as amended from time to time;
- App User: Any person appointed by the Customer in writing on the Pintry Order Form, as amended from time to time;
- Customer: The applicant stated on the Pintry Order form
- Fee: The fixed subscription fee, hardware cost and Installation fee payable by the Customer to GIBBOR SECURITY, as set out in the Pintry Order Form and any additional fees contemplated in clause 7, or any other clause in this Agreement.
- GIBBOR SECURITY: GIBBOR SECURITY CC (registration number 2009/089860/23), including where appropriate its employees, agents and its successors-in-title.
- Installation: Installation of the System Hardware shall be deemed to have occurred at the moment that the first signal is received from the System Hardware to the Server, or in the absence thereof, once GIBBOR SECURITY is satisfied that the System Hardware is activated and functioning.
- Installation Date: The date confirmed by GIBBOR SECURITY as being the date of installation of the System Hardware.
- Instructions: Any instructions issued by GIBBOR SECURITY to the Customer from time to time, including any verbal instructions and any manual relating to the System Hardware.
- Landlord: The owner of the Premises from time to time.
- Link-up: The process when GIBBOR SECURITY links up an already existing and installed alarm system, (not installed by GIBBOR SECURITY), to be monitored by GIBBOR SECURITY under the terms and conditions of this Agreement or loads customer information in its System Hardware.
- Premises: The property, including any buildings and/or structure, where the System Hardware is installed being the premises where the Customer requires GIBBOR SECURITY to render the Services.
- Server: The place to which all transactions and information from the System Hardware are stored and are monitored by GIBBOR SECURITY or its appointed representative.
- Services: has the meaning stated on the Pintry Order Form.
- Start Date: means the Installation Date. Where the Customer already has a system installed at the Premises, the date on which GIBBOR SECURITY completes its inspection, testing and Link-up of such System Hardware, always subject to payment by the Customer of the Fee (or the relevant pro rata portion thereof).
- System Hardware: The Pintry System Hardware, including all radio transmitters, receivers, sensors, keypads, wiring and other equipment or components necessarily attached thereto or forming part thereof. The radio transmitter will at all times remain the property of GIBBOR SECURITY.
- Working Hours: Mondays to Fridays, 9am to 5pm, excluding public holidays.
PROVISION OF SERVICES, INSTALLATION AND REMOVAL OF THE SYSTEM HARDWARE
- GIBBOR SECURITY shall provide the Services to the Customer subject to the terms and conditions contained in this Agreement.
Should the Customer elect to have the System Hardware Hardware installed by GIBBOR SECURITY (or should GIBBOR SECURITY appoint an independent installer to install the System Hardware), the following shall apply:
- GIBBOR SECURITY shall endeavour to install the System Hardware at the Premises by the date given or as soon as reasonably possible thereafter.
- GIBBOR SECURITY shall not be responsible for any delays in the installation of the System Hardware, it being recorded that the Customer agrees and acknowledges that it shall accept Installation of the System Hardware whenever it is tendered by GIBBOR SECURITY.
- The Customer shall not be entitled to terminate this Agreement, nor shall it be entitled to a reduction of the installation costs, nor to withhold or to defer any payments due by it to GIBBOR SECURITY, nor shall it have any other right or remedy against GIBBOR SECURITY due to a reasonable delay in the installation of the System Hardware at the Premises.
- The Customer accepts that during the course of Installation, GIBBOR SECURITY may have to draw on and/or drill into the ceiling, floor, walls and other areas on the Premises in order to install the System Hardware and GIBBOR SECURITY shall not be liable for any damage caused in doing so.
- All risk of loss or damage in and to the System Hardware shall pass to the Customer on Installation thereof at the Premises.
- The Customer undertakes to allow GIBBOR SECURITY access to the Customer’s current alarm system in order to make the necessary modifications required; and
- GIBBOR SECURITY reserves the right, after consultation with the Customer, to advise the Customer whether the System Hardware will be compatible with the Customer’s existing alarm system and hardware. Should the Customer’s existing alarm system and hardware be incompatible, GIBBOR SECURITY shall be entitled to terminate this Agreement.
The Customer herby undertakes to:
- provide unimpeded access to the Premises in order to allow GIBBOR SECURITY to install/Link-up/remove the System Hardware and/or render the Services;
- notify GIBBOR SECURITY in writing of the changes to the name(s), residential address(es) and telephone number(s) of the App User by emailing the changes to email@example.com;
- provide GIBBOR SECURITY with clear instructions regarding domestic pets and the possible dangers thereof. GIBBOR SECURITY reserves the right not to enter the Premises should there be domestic pets deemed hazardous to the safety of the personnel of GIBBOR SECURITY;
- test the System Hardware on a regular basis (having first given prior notice via telephone call to the Server) and at least monthly, and in any event not later than 72 (seventy two) hours prior to vacating/leaving the Premises unattended for any period exceeding 7 (seven) days by contacting the Server;
- notify GIBBOR SECURITY immediately upon noticing or becoming aware of any fault, damage or destruction to the System Hardware;
- ensure the Customer and the App user is able to make use of an operational cellphone and that the internet connectivity is connected and operational at all times;
- ensure that the Customer and the App user make use a cellphone that makes use of either an Apple IOS or Andriod operating system;
- ensure that neither the Customer, nor any other third party remove or tamper with the System Hardware;
- warn GIBBOR SECURITY in writing about any risks and/or any hazardous materials on or near the Premises;
- operate the System Hardware according to the Instructions and the terms of this Agreement;
compensate GIBBOR SECURITY for all and any liabilities, claims, losses, expenses or damages GIBBOR SECURITY may suffer, caused by or arising from, amongst other things:
- the Customer's failure to operate the System Hardware according to the Instructions; and/or
- the connection of the System Hardware to any equipment or device not supplied by GIBBOR SECURITY; and/or
- any damage or harm caused to GIBBOR SECURITY, its personnel or property by the Customer or anyone or anything on the Premises which the Customer has failed to bring to the attention of GIBBOR SECURITY.
THE PURPOSE OF THE SYSTEM HARDWARE
- This clause 4 is in addition to any other exemption and/or indemnity in this Agreement does not in any way derogate from those provisions.
- Both parties acknowledge that the System Hardware can be removed, tampered with, suffer from communication issues, there can be a GSM failure or loss of cellular connectivity that is beyond the control of Gibbor Security and also that it can be prevented from working by the Customer or any other person. Accordingly, GIBBOR SECURITY accepts no liability for any loss or damage the Customer or any other third party may suffer howsoever arising as a result of any such removal, tampering, and/or interference or from the System Hardware being prevented from working in any manner which is not caused by the direct intent or gross negligence of GIBBOR SECURITY.
Furthermore, GIBBOR SECURITY does not undertake or guarantee that:
- particular losses or injuries will be prevented by using the System Hardware and/or the Services;
- the System Hardware and/or the Services will work continuously and without error;
- the GSM signals or cellular connectivity or any other communication cannot be disrupted; and
- the System Hardware, like all mechanical and electronic devices, will not develop faults.
WARRANTY AND UNDERTAKING BY GIBBOR SECURITY
GIBBOR SECURITY warrants that it will repair faulty equipment or labour defects in the System Hardware at no cost to the Customer subject to the following conditions:
- The fault occurs within the first 6 (six) calendar months from the Start Date subject to the System Hardware being purchased directly from GIBBOR SECURITY; and
- This warranty does not apply to any System Hardware which does not form part of, or is supplied and provided for by GIBBOR SECURITY; and
- It does not apply to any damage caused by the wilfulness or negligence of the Customer or any third party; and
- It does not apply to any damage caused by an electrical surge or any acts of God.
- GIBBOR SECURITY warrants that it will repair faulty equipment or labour defects in the System Hardware at no cost to the Customer subject to the following conditions:
LIMITATION OF LIABILITY
- GIBBOR SECURITY records, and the Customer acknowledges, that to the extent that the Services function as a deterrent, they are not a guarantee of safety against or prevention of loss, liability, injury and damage of whatsoever nature and however arising. Accordingly, while GIBBOR SECURITY shall exercise reasonable care in the installation of the System Hardware and in the rendering of the Services, nothing herein contained shall be construed or interpreted in any manner whatsoever as providing the Customer or any third party with any guarantee or assurance of safety against harm or against any loss, liability, injury or damage of whatsoever nature or howsoever arising.
- Subject to the provisions of the Act, neither GIBBOR SECURITY nor any other persons for whom it may be liable for in law, shall be liable to the Customer in respect of or pursuant to any loss, liability, injury, damage or claims of whatsoever nature (including without limitation any loss of profits and/or any special and/or consequential loss or damages) whether arising through the rendering or non-rendering or attempted rendering of the Services in terms of this Agreement, or in delict or otherwise, whether at the Premises or not, if any such loss, liability, injury, damage or claims arise as a result of or pursuant to any innocent, negligent or grossly negligent act or omission on the part of GIBBOR SECURITY or any other persons for whom it may be liable in law.
- The Customer hereby irrevocably indemnifies GIBBOR SECURITY , or any other person for whom GIBBOR SECURITY may be liable in law, against all claims of third parties arising out of the said acts or omissions as referred to in clause 2 above at the Premises or elsewhere.
- GIBBOR SECURITY’s responsibility and obligations to the Customer cease immediately when the Agreement is terminated or the Services are suspended under clause 9 below.
- The Customer is liable for the timeous payment to Gibbor Security of all the Fees in advance.
- The Customer shall be obliged to pay all additional amounts that are incurred by Gibbor Security for any additional hardware or services that are required to ensure the Services and System Hardware are operational and this is payable upon presentation of an invoice within seven (7) calendar days of receipt hereof.
- The Customer agrees to make all payments to GIBBOR SECURITY by means of EFT transaction. GIBBOR SECURITY will not accept payment by cash and cheques.
- In the event of any breach by the Customer of its payment obligations, unless otherwise provided for in this Agreement, GIBBOR SECURITY shall be entitled to suspend the performance of the Services until such outstanding obligations have been discharged.
- GIBBOR SECURITY is entitled to increase its Pintry license fee upon renewal of the subscription to cover any increase in the costs of providing the Services. GIBBOR SECURITY will endeavour to inform the Customer in writing (thirty 30 calendar days before the increase becomes effective), by email, short messaging service or by ordinary service mail of any increase.
The Customer is also responsible for the following extra charges:
- any additional hardware or services that are required to ensure the Services and System Hardware are operational;
- taxes, fees, or any other costs arising due to the installation or operation of the System Hardware;
- any charges for work done by any third party not specifically covered for by this Agreement;
- a re-installation fee for the System Hardware (or any part thereof) if same is irreparably damaged or destroyed for any reason whatsoever not relating to any fault on the part of GIBBOR SECURITY , which fee shall be the fee charged at the present time which may be subject to an increase; and
- a reconnection fee of R150 will be charged should the Services be suspended due to the Customer failing to renew the Pintry License timeously.
The Customer is also liable for charges at Gibbor Security’s standard rates for labour and materials, current at the time when any of the following applies:
- faults caused by the Customer or any other third party, thing or event which GIBBOR SECURITY could not reasonably be expected to prevent (including damage by vermin, pests, or weather);
- the Customer instructs GIBBOR SECURITY to visit the Premises for repair or service work; or
- GIBBOR SECURITY is required to change the System Hardware as a result of changes at or in the Premises or for any other reason.
- Unless GIBBOR SECURITY agrees in writing to the contrary, any installation quote does not include any work involving redecorating, repairing, carpet laying, concealing cables, building or carpentry work. The quote is established on the basis that GIBBOR SECURITY will have full access to the areas where it carries out the Services.
- This Agreement shall commence on the Start Date and shall proceed for the Contract Duration selected by the Customer on the Pintry Order Form.
- The Customer shall have the opportunity to extend the Contract Duration at any time by giving written notice to Gibbor Security.
- This Agreement will terminate at the end of the Contract Duration. Should the Customer terminate this Agreement prior to the end of the Contract Duration, the Customer forfeits the Pintry License fee (or any portion thereof).
- GIBBOR SECURITY may suspend Services should the Customer fail to pay the selected Pintry License fee, upon renewal thereof.
Gibbor Security may suspended this Agreement, with immediate effect, including but not limited to, the following reasons:
- The Customer committing a material breach of any of its obligations in terms of this Agreement.
- the Server or the System Hardware is destroyed so badly that GIBBOR SECURITY cannot reasonably provide the Services;
- The death of the Customer;
- The Customer requests Gibbor Security to remove the System Hardware from the Premises. The Customer acknowledges that if the cooling off period has lapsed, Gibbor Security will not refund the Customer for the System Hardware. Furthermore, Gibbor Security will not be liable to restore the Customer’s premises in any form or way as a result of the removal of the System Hardware.
- any legal proceedings are taken against the Customer by GIBBOR SECURITY, or by a third party relating to the System Hardware, the Services or the Premises or any part of the Premises;
- GIBBOR SECURITY cannot, for any reason outside of its control, arrange or keep the telecommunications or other communication facilities needed to transmit and/or receive the signal to or from the Premises or the Server;
- the Customer fails to follow any recommendations given by GIBBOR SECURITY with regards to the repairing or replacing of faulty or old parts of the System Hardware, or for repairs to the Premises which GIBBOR SECURITY considers necessary for the System Hardware to work properly, or to prevent unnecessary damage to the System Hardware;
- the Customer changes the Premises in such a way that GIBBOR SECURITY believes it is no longer viable to provide the Services.
- If, due to breach on the part of the Customer, GIBBOR SECURITY gives the Customer written notice of suspension, such notice suspends GIBBOR SECURITY’s obligations until the suspension is lifted by GIBBOR SECURITY by notice in writing, during which time the Customer shall be liable for all Fees.
- The Customer shall further be liable for all administrative fees relating to the disconnection and reconnection of the System Hardware should the Services be suspended due to any fault or failure by the Customer, which reconnection fee shall be no less than R150.
- The Parties consent to the jurisdiction of the relevant magistrates' court for the hearing of any dispute arising from (i) the interpretation of; (ii) the effect of; (iii) the Parties' respective rights and obligations under; (iv) a breach of; and/or (v) any matter arising out of, this Agreement.
- Notwithstanding what has been set out in clause 1 above, any dispute between the Parties in regard to (i) the interpretation of; (ii) the effect of; (iii) the Parties' respective rights and obligations under; (iv) a breach of; and/or (v) any matter arising out of, this Agreement may, at GIBBOR SECURITY’s sole and absolute discretion, be referred to and decided by arbitration, on the terms and conditions set out below. .
- This clause 9 is a separate, divisible agreement from the rest of this Agreement and shall (i) not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Agreement and not to this clause 10. The Parties intend that any such issue shall be subject to arbitration in accordance with the terms of this clause 10; and (ii) remain in effect even if the Agreement terminates or is cancelled.
- The Parties to the dispute shall agree on the arbitrator. If agreement is not reached within 10 (ten) Business Days after any Party in writing calls for agreement, the arbitrator shall be an attorney or advocate of at least 5 (five) years' standing on the panel of arbitrators of the Arbitration Foundation of Southern Africa ("AFSA"), nominated at the request of any Party by the Registrar of AFSA.
- The arbitration shall be held in Johannesburg and the Parties to the dispute shall use their best endeavours to ensure that it is completed as soon as reasonably possible after notice requiring the dispute to be referred to arbitration is given.
- The proceedings in the arbitration shall as far as practicable take place in private and be kept confidential.
- The arbitration shall be governed by the Arbitration Act 42 of 1965, as amended, or any replacement Act and shall take place in accordance with the Commercial Arbitration Rules of AFSA or such other rules as the Parties may agree in writing.
- The decision resulting from such arbitration shall be final and binding upon the Parties to the dispute, and may be made an order of any court of competent jurisdiction.
- This clause 10 shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
- Notice of a dispute or pending arbitration proceedings shall not entitle any Party to suspend compliance with any of its obligations in terms of this Agreement or any agreement contemplated in this Agreement.
- The Parties agree that the written demand by a Party to submit any dispute or difference to arbitration in accordance with the further provisions of this clause 10 shall be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act 68 of 1969, as amended.
- A cooling off period of 2 (two) months from Start Date of this Agreement is applicable, during which time the Customer may retract this Agreement. The Customer must inform GIBBOR SECURITY in writing that it wishes to terminate this Agreement at least 5 (five) day prior to the end of the cooling off period, failing which the terms and conditions of this Agreement will become enforceable.
- GIBBOR SECURITY is at all times entitled to engage contractors or sub-contractors to carry out all or any of its obligations under this Agreement.
- An amount to be paid in terms of this Agreement shall be deemed to have been paid only once payment has been met and GIBBOR SECURITY’s bank account has been credited.
- The Customer consents to GIBBOR SECURITY dispatching promotional or marketing material to the Customer from time to time;
- This Agreement is the entire agreement between the Customer and GIBBOR SECURITY and GIBBOR SECURITY shall not be bound by any representations, undertakings, promises or the like not specifically recorded or incorporated herein. No variation of this Agreement, waiver of rights, release from any obligation or consensual cancellation in terms of this Agreement shall have any effect unless in writing and signed by both parties to the Agreement.
- No indulgence, latitude, extension of time or omission by GIBBOR SECURITY shall constitute a waiver by GIBBOR SECURITY of any of its rights under this Agreement and shall not amount, in any appropriate instance, to a condonation by GIBBOR SECURITY of any act or omission by the Customer or, in any circumstance whatsoever, give rise to a defence of estoppel.
- The Customer shall be liable for any legal costs incurred by GIBBOR SECURITY in enforcing the provisions of this Agreement, including but not limited to attorney's fees.
- The Customer chooses as its domicilim citandi et executandi, or legal address, for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the address stated in the Schedule.
- The Customer is not entitled to cede, delegate or otherwise transfer its rights and obligations under this Agreement to any other party, unless agreed otherwise in writing by GIBBOR SECURITY.
- To the extent any provision of this Agreement is found to be void, invalid or unenforceable, for whatsoever reason, the parties shall procure that the provision shall (where possible to do so whilst maintaining the purpose of this Agreement) be amended to the minimum extent possible to make it valid or enforceable, or if this is not possible, shall be deleted from the Agreement. In all such circumstances, the remainder of this Agreement shall remain in force and unaffected and GIBBOR SECURITY and the Customer agree that they would have entered into this Agreement on all the other terms hereof even if the amended or deleted provision was not agreed between them.
- Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.
- When any number of business days is prescribed, such number shall exclude the first and include the last day unless the last day falls on a weekend or public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a weekend or public holiday.
- This Agreement, the Services and any related matters are governed by South African law and any claims will be subject to the exclusive jurisdiction of the courts in South Africa.