TERMS OF SERVICE AGREEMENT

Please read the following Terms of Service Agreement (“Agreement”) carefully before downloading the CRASHDETECH Application or accessing the CRASHDETCH service. By downloading, installing, accessing and/or using the CRASHDETECH Application (“the Application”) or otherwise subscribing to the service, you (the “Member”) indicate that you have understood and agree to be bound by the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, please do not download the CRASHDETECH Application. CRASHDETECH may amend this Agreement at any time. All amended terms shall be effective automatically and immediately upon the publication of the revised Agreement (specifying a version reference)and any subsequent activity in relation to the Application or the service shall be governed by such amended Agreement. You are advised to regularly consult the Website (www.crashdetech.com ) CRASHDETECH’s Privacy Policy is incorporated by reference into this Agreement.
This Agreement was last revised on 07 October 2015

1. DEFINITIONS

In this Agreement the following definitions apply:
  1. The ”Application” shall mean the software provided by CRASHDETECH to offer services related to CRASHDETECH and those of its service providers and upgrades which enable use of the Application. The Application is to be used on Apple iOS and Android devices.
  2. ”Initial Period” shall means the period of subscription to the servicecommencing on the relevant effective date.
  3. “Member” shall mean individuals and businesses who have signed a membership agreement with CRASHDETECH
  4. “Motor vehicle” shall mean the ordinary understanding of a vehicle designed for travel on the road and shall include motorcycles, and quad motorcycles
  5. “Serious motor vehicle accident” shall mean an incident whereby the Member has suffered bodily injury resulting in incapacity and/or the Member’s motor vehicle is impaired

2. THE CRASHDETECH SERVICE

2.1
In the case of paid services, subject to the payment of service fee(s), and the terms and conditions of the service, the Member shall receive the following service:
  1. Crash alert:should the Member be involved in a serious motor vehicle accident, the Application will detect the location of the accident and alert the emergency call centre;
  2. Emergency notification:should the Member have a medical emergency, the Member shall have access to a medical emergency notification device to alert the emergency call centre;
  3. in the event or (i) or (ii) above; and receipt of the respective alert the emergency call centre will call you on the number you’ve provided. If you confirm or don’t answer, the call centreagent will request help from emergency services. The agent can stay on the line with you until help arrives.
2.2
In the case of free services (no service fee), subject to the terms and conditions of the service , the Member shall receive the following service: accident.
  1. Limited emergency alert: should the Member have a medical emergency, the Member shall have access to a limited medical emergency notification serviceand the Member’s personally selected emergency contacts only will be notified on receipt of the alert.

3. SUBSCRIPTION TO THE SERVICE

3.1
Members subscribe to the Service in the following ways:
  1. via the CRASHDETECH Website; or
  2. via the CRASHDETECH Application; or
  3. by purchasing a 24-month service subscription directly from a participating motor vehicle dealership (“the Dealer”) as part of a motor vehicle finance agreement with the Dealer.
3.2
The Member shall not be entitled to cede, transfer or assign any of the rights in terms of this Agreement.

4. DEALERSHIP SUBSCRIPTIONS

4.1
In the case 3.1 (iii):
  1. Members purchasing a subscription at a Dealer will receive a specific service voucher/code via email and/or sms contact information as submitted by the Member;
  2. On receipt of such voucher/code, the Member shall be entitled to download the Application to the Member’s mobile communication device;
  3. Members shall treat such voucher/code as confidential; and
  4. CRASHDETECH reserves the right to disable the Member voucher/code at any time should the Member fail to comply with the terms and conditions of the service.

5. APPLICATION SUBSCRIPTIONS

5.1
In the case of 3.2(ii):
  1. Use of the Application is dependent on the Member using a mobile communication device (either Android or iOS) that complies with the minimum specifications,other software, and internet access required to install and use the Application
  2. The minimum specifications are as follows:
  3. Android Android version 2.3.3 (API Level 10) Phone device: Screen size: Medium(320*480 mdpi), High (480*800 hdpi) and Large (720*1280 & 1920*1080 xhdpi/xxhdpi)
    iOS iOS version - 6.0 (at least)
  4. Mobile communication devices that do not conform with the minimum specifications will not be suitable to receive the service.
5.2
Members using devices that are not compatible with the System Requirements can make use of the CRASHDETECH MEDICAL ID and RoadCover services (available on the Premium and Family subscription packages only) and will have access to the emergency callcentre number. However, these Members will not be able to make use of the one-touch button to call for medical assistance and will not have the crash alertservice available on the device. CRASHDETECH will not be held liable for Members who do not have the appropriate operating system running on their device and who falsely rely on the crash alertservice of the Application.
5.3
The Application shall be limited to a single specified mobile communication device of the Member, and specifically excludes use on the Member’s motor vehicle. Should the Member require the benefit of the service on additional devices or alternative devices, the Member shall amend the subscriptions to accommodate such additions or transfers.
5.4
The Member shall be responsible for ensuring that the updated or enhanced version of the Application is installed on the Member’s mobile communication device which may be verified on the Website.
5.5
Limitations of the Application:
5.5.1
The availability of the service is subject to the following requirements for the functionality of the Application:
  1. the mobile communication deviceused to access the Application must be powered on;
  2. the mobile communication device used to access the Application must not be damaged such that it is unable to communicate (transmit) data to the CRASHDETECH callcentre or messaging systems;
  3. the mobile communication device used to access the Application shall have text messaging capability;
  4. the mobile communication deviceused to access the Application must be within the relevant Member’s communication network operator’s data coverage areaand the Member’s data communication services from the relevant network operator must be enabled and operational;
  5. the (global positioning facility) GPS on the mobile communication deviceused to access the Application must be enabled;and
  6. the microphone capability on the mobile communication deviceused to access the Application must be enabled.
5.5.2
The Member shall use the Application for personal, non-commercial use only.
5.5.3
The Member shall be 18 years of age or over to download, install, access or use the Application. Members under the age of 18 shall obtain consent from a parent or guardian prior to downloading, installing, accessing or using the Application.
5.5.4
Unauthorised use of the Application includes engaging in the following activities:
  1. adapting, modifying, publishing, republishing, distributing or redistributing this Application or the material on this Application without CRASHDETECH’s prior written consent;
  2. using any automated data collection, data mining or data gathering methods of any kind in relation to the Application;
  3. reverse engineering, disassembling, decompile, transfer, exchanging or translating the Application;
  4. making and distributing copies of the Application or allowing such activity by third parties on your behalf;
  5. creating derivative works of the Application of any kind.
5.5.5
The terms of agreement with the Member’s respective mobile communications network provider will continue to apply when using the Application.
5.5.6
CRASHDETECH shall not be liable for any communication, software or hardware costs the Member may incur in connection with access or use of the Application.
5.5.7
CRASHDETECH will make every effort to inform the Member should the Application be ineffective by sending notifications to the Member’s mobile communication device. The Member is encouraged to open the Application periodically to view last motor vehicle trips monitored by the Application and to ensure that the crash detection feature is active.
5.5.8
Every effort is made to ensure that the Application is operational. However, CRASHDETECH takes no responsibility for, and will not be liable for, the Application being temporarily unavailable due to technical issues beyond the control of CRASHDETECH.
5.5.9
CRASHDETECH makes no warranty that the Member’s access to the Application will not be uninterrupted. CRASHDETECH may carry out maintenance or introduce new facilities and functions from time to time. The Member agrees and accepts that as a result specific interruptions and unavailability of the Application and/or service may occur.
5.5.10
Unauthorised use of the Application may result in CRASHDETECH instituting a claim for damages against the Member and/or the Member may be found guilty of a statutory and/or criminal offense.

6. WEBSITE

6.1
Access to the Website is governed by the terms and conditions of service.
6.2
Every effort is made to ensure that the website is operational. However, CRASHDETECH takes no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond the control of CRASHDETECH.
6.3
CRASHDETECH makes no warranty that access to the Website will not be uninterrupted. CRASHDETECH may carry out maintenance or introduce new facilities and functions from time to time. The Member agrees and accepts that as a result specific interruptions and unavailability of the Website and/or service may occur.
6.4
The Member may not use the Website for any purpose that is unlawful or prohibited by the terms of and conditions of service, any applicable additional or amended terms of service, or any other conditions or notices that are made available on the Website. Unauthorised use of the Website may result in CRASHDETECH instituting a claim for damages against the Member and/or the Member may be found guilty of a statutory and/or criminal offense.
6.5
The Website may include links to other Websites, including links to third party websites where the CRASHDETECH Application may be downloaded. These links are provided for the Member’s convenience for the purposes of providing further information to the Member. S uch links do not signify that CRASHDETECH endorses the website(s) linked to. The Member agrees that CRASHDETECH shall have no responsibility or bear no liability in relation to the content of the linked website(s). Content hosted on third party websites is the responsibility of those websites, and not of CRASHDETECH. It is recommended that you read the terms and conditions and privacy policy of any third-party website or service that you visit. The Member may not create a link to the CRASHDETECH website from another website without CRASHDETECH’s prior written consent.

7. EFFECTIVE DATE AND TERMINATION

7.1
This Agreement shall commence on the date of subscription to the Service,or first use of the Application whichever is the first, (“Effective Date”) and shall continue for the term agreed to between the parties.
7.2
Termination/early termination of the service by the Member shall be in accordance with the termination notice period(s) and early termination fees specified below:
  1. in the case of monthly service subscriptions (renewable every month), the Member may terminate the service through the provision of one calendar month’s notice of termination in writing or by using the cancellation feature on the Application;
  2. in the case of annual service subscriptions or subscriptions exceeding term of twelve months or a term exceeding twelve months, the Member may terminate the service through the provision of three calendar month’s notice of early termination in writing.
7.3
The Member remains liable to CRASHDETECH for any amounts owed to CRASHDETECH for the service up to and including the date oftermination.
7.4
CRASHDETECH shall be entitled to levy a reasonable early termination feeequivalent to any discounts applied to the service fees on account of the term of subscription agreed to on subscription to the service.
7.5
The Member’s subscription shall be automatically renewed on expiry of the subscription term on a month-to-month basis subject to:
  1. in the case of annual subscription services, termination by either party on three (3) calendar months’ prior written notice of termination; or
  2. in the case of either monthly or annual service subscriptions, the Member agreeing to renew the subscription for a further term.

8. THIRD PARTY SERVICE PROVIDERS

8.1
In order to provide the service to the Member, the Member acknowledges and agrees that CRASHDETECH has a dependency on third party service providers including but not limited to: medical emergency response call centres;medical emergency response teams;vehicle dealerships; online payment service providers and RoadCover providers. The Member agrees that CRASHDETECH shall not be liable for any failures to render the service attributable to such third parties.
8.2
The Member agrees that the medical emergency service provider shall render the service to the Member on a user-to-pay basis, i.e. the Member shall be directly liable to such service provider for the fees associated with the service provider’s service.
8.3
In the case of the Dealer, the terms of service as between the Member and the Dealer shall be governed by the terms of the agreement between such parties.

9. PROTECTION OF PERSONAL INFORMATION

9.1.
Any personal information supplied to CRASHDETECH, the Dealer and/or any third party service provider in relation to the provision of the service will be dealt with in accordance with CRASHDETECH’s Privacy Policy, the terms and conditions of service set out herein and South African legislation as it may apply. (The Privacy Policy may be accessed here.)
9.2
Members who subscribe to the service via a Dealer specifically consent to the additional processing of the Member’s personal information by the Dealer. Such consent is governed by the Dealer’s Privacy Policy, the terms of the agreement as between Member and Dealer and South African legislation as it may apply. By providing personal information to the Dealer, the Member specifically permits the Dealer to input such information into the CRASHDETECH system.

10. INTELLECTUAL PROPERTY

TheApplicationand Website constitutes software and content (including but not limited to: computer or software code; scripts; design elements;images; text;interactive features;animation; photos;video; graphics; music; sound; and voice) that is the intellectual property of CRASHDETECH and/or various third parties and is subject to the intellectual property laws of South Africa. Further and to the extent that CRASHDETECH does not own specific content, or such content falls within the public domain, CRASHDETECH may hold copyright in the selection, coordination, arrangement and enhancement of such information on the Application. No rights and/or licence to CRASHDETECH’sintellectual property or the intellectual property of third parties have been granted to the Member, unless otherwise indicated. The software and content may not be used in violation of the intellectual property rights of CRASHDETECH and/or such third parties as applicable. Without limitation on the prohibitions placed on the Member, the Member expressly agrees not to:
  1. commercially exploit, reproduce, distribute, transmit, display, publish or broadcast any Application content without the prior written approval of CRASHDETECH or in the case of third party content, the owner of that content;
  2. claim or convey ownership of Application content either in its entirety or otherwise;
  3. modify the content for the purposes of reposting;
  4. alter or remove any trademark, copyright or other notice from the Application content,including proprietary notices contained on any content; and/or
  5. copy or otherwise incorporate Application content or software into or store in awebsite, electronic retrieval system, publication or other work in any form.
10.1 Limitated Application License:
10.1.1
CRASHDETECH grants a worldwide, non-exclusive, royalty-free, revocable license to:
  1. use the Application as set out in this Agreement;
  2. download the Application to a mobile communication device;/li>
  3. copy and store the Application and material pertaining to the Application; and
  4. print the Application information for personal access and use.
10.1.2
CRASHDETECH expressly reserves all other rights.

11. LIMITATION OF LIABILITY

11.1. LIMITED LIABILITY OF CRASHDETECH
THE MEMBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT DOWNLOADING AND/OR USAGE OF THE SERVICE, APPLICATIONAND WEBSITE AND RELIANCE ON THE SERVICE IS ENTIRELY AT THE DISCRETION AND RISK OF THE MEMBER. CRASHDETECH, IN ITS DISCRETION, RESERVES THE RIGHT AT ANY TIME TO CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO: CONTENT, HOURS OF AVAILABILITY AND EQUIPMENT NEEDED FORACCESS OR USE OF THE APPLICATION. CRASHDETECH SHALL ATTEMPT TO MAINTAIN THE AVAILABILITY AND ACCESSIBILITY OF THE SERVICE; HOWEVER, CRASHDETECH TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE FOR, THE APPLICATION BEING TEMPORARILY UNAVAILABLE OR INACCESSIBLE FOR REASONS BEYOND CRASHDETECH’S CONTROL.
11.1.1
The Member acknowledges and agrees that the Application uses an algorithm to determine whether the Member has been involved in a serious motor vehicle accident. CRASHDETECH will not be held liable in instances where the Application has been hindered from being able to run such algorithm; this includes, but is not limited to, the following instances:
  1. where motor vehicle trip monitoring has not been activated;
  2. where the mobile communication device accessing the Application has been damaged during a motor vehicle accident or otherwise; and/or
  3. where usage of the Application has not been in accordance with CRASHDETCH’s instructions.
11.1.2
CRASHDETECH shall not be liable for damage to, or viruses or other code that may affect any equipment, software, data or other property as a result of the Member downloading, installing, accessing or using the Application.
11.1.3
CRASHDETECH shall not be liable for any errors, inaccuracies or omissions in regard to the information and materials provided on the Application.
11.1.4
CRASHDETECH shall not be liable for occasions where the emergency medical alert is triggered in error.
11.1.5
CRASHDETECH shall not be liable for occasions where the emergency medical alert is triggered due to abuse or excessively frequent requests via the service. Such abuse may result in the temporary or permanent suspension of the Member’s access to the Service. CRASHDETECH, in its sole discretion, will determine abuse or excessive usage of the Service. CRASHDETECH shall make a reasonable effort to notify the Member prior to such suspension.
11.1.6
This limitation of liability shall not apply to liability for:
  1. death or personal injury resulting from a party’s gross negligence;
  2. damage to real or tangible personal property resulting from a party’s gross negligence; or
  3. any breach of obligations under these Terms of Service in respect of confidentiality or intellectual propertyto the extent applicable law prohibits such limitation.
11.1.7
The Member agrees that the total liability of CRASHDETECH or their agents or contractors to the Member or any third party shall be limited to the lesser of actual damages for any cause whatsoever or twenty-five thousand rands (R25 000.00).

12.WARRANTIES

12.1
The Application is provided subject to all terms set out in this Agreement and CRASHDETECH’s Privacy Policy. CRASHDETECH specifically excludes any warranties that:
  1. the Application will always be available;
  2. the Application is free from defects or errors;
  3. the Application will be compatible with all hardware and software that the Member may use;
  4. the information provided for in the Application is true, accurate and/or correct;
  5. that any service opt-out options the Memberinvokes will be effected; or
  6. that a serious motor vehicle accident will be detected.
THE SERVICE, APPLICATIONAND WEBSITE HAS NOT BEEN TAILORED TO ANY SPECIFIC INDIVIDUAL MEMBER’S REQUIREMENTS AND IS PROVIDED TO THE PUBLIC AS A WHOLE; IN ACCORDANCE THE INFORMATION CONTAINED IN THE APPLICATION IS PROVIDED BY CRASHDETECH AND/OR ITS PARTNERS, AFFILIATES, MEMBERS, SUPPLIERS OR AGENTS WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES OF RELIABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TIMELINESS, SEQUENCE, COMPLETENESS, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND/OR FREEDOM FROM ERRORS OR INACCURACIES. CRASHDETECH MAKES ALL REASONABLE EFFORTS TO ENSURE THAT ALL MATERIAL AND INFORMATION PROVIDED IN RELATION TO THE APPLICATION IS CORRECT BUT CANNOT REPRESENT OR GUARANTEE THE ACCURACY THEREOF. AS SUCH, CRASHDETECH MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF THE APPLICATION’S CONTENT, INFORMATION, AND MATERIALS WHICH ARE PROVIDED TO YOU, AS IS AND AS AVAILABLE.

13. LIMITATION OF LIABILITY

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD CRASHDETECH, ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ANY CLAIMS, DAMAGES, ACTIONS, LOSSES AND LIABILITIES INCLUDING WITHOUT LIMITATION: LOSS OF PROFITS; DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; AND ANY REASONABLE LEGAL AND/OR ACCOUNTING FEES, RESULTING FROM: (I) THE ACCESS TO, USE OF, OR PERUSING OF THE APPLICATION, (II) DOWNLOADING OF THE APPLICATION, AND/OR (III) VIRUSES, BUGS, SOFTWARE/PROGRAM MALFUNCTIONS, ERRORS, FAILURES, DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS.

Your sole and exclusive remedy should you be dissatisfied with the service or application is to unsubscribe from the service.

14. THIRD PARTY SERVICE PROVIDERS’ INDEMNIFICATION

In order to provide the service as specified in the Application CRASHDETECH relies on the following third party service providers: medical, emergency response call centres,vehicle dealerships, online payment service providers andRoadCoverproviders to render the service. The User indemnifies and holds CRASHDETECH harmless from any and all actions, claims, liabilities and/or losses in respect of the provision of such third party services by such third party service providers.

15. FORCE MAJEURE

15.1
CRASHDETECH will not be liable for any failure to perform under this Agreement caused, directly or indirectly, by factors beyond its reasonable control, including any acts of God, earthquake, flood, embargo, riot, war, sabotage, terrorist attack, labour shortage or dispute, governmental act or failure of any third-party service or network.
15.2
Neither CRASHDETECH nor any person required to render assistance hereunder shall have any liability to the Member, his/her heirs or executors, arising out of the failure to render the service or any delay in rendering the service, where such failure or delay is caused by force majeure, vis major, adverse weather conditions, strikes, lockout, labour disputes or unrest, or riot.

16. SEVERABILITY

This Agreement shall apply to the fullest extent permissible by law. If any provision of the Agreement is unlawful, void or unenforceable, that provision shall be deemed severable from the remaining provisions and shall not affect the validity and enforceability of the remaining provisions.

17. APPLICABLE LAW, DOMICILIUM, JURISDICTION AND ARBITRATION

17.3.1.
The Application is hosted, controlled and operated from the Republic of South Africa and therefore this Agreement shall be governed by and be interpreted in accordance with the laws of the Republic of South Africa.
17.3.2
In the event of any legal dispute or action being brought in connection with this Agreement, it is agreed that the venue of such action shall be Johannesburg, South Africa and each party hereby consents to the jurisdiction of the courts thereof.
17.3.3
Without any restriction on the Member’s rights to pursue legal recourse in the forum of the Member’s choice, the Member agrees that any dispute regarding this Agreement that cannot be resolved amicably, shall, first be referred to confidential arbitration in terms of the rules of the Arbitration Foundation of South Africa prior to proceeding to Court and such arbitration shall be conducted in English in Johannesburg.
17.3.4
CRASHDETECH confirms the domicilium citandi et executandi for all purposes associated with the Application, transactions pertaining to the Application, including the giving of any notice, the payment of any sum, the serving of any process, as follows:
The Business Centre
William Nicol, cnr Leslie Ave
The Design Quarter
Fourways
2055
17.3.5
Any notice by any party to CRASHDETECH which is transmitted by electronic mail and/ or facsimile to CRASHDETECH at the CRASHDETECH electronic mail addresses and/or facsimile addresses (as the case may be) shall be presumed, until the contrary is proven by CRASHDETECH, to have been received by CRASHDETECH on the date of successful and complete transmission thereof.
17.3.6
CRASHDETECH does not receive legal notice or accept the serving of documents attached to legal processes on CRASHDETECH by electronic mail.