TITAN SECURE (PTY) LIMITED USER AGREEMENT
Terms and conditions for Customers using Titan Services and Equipment
1. Introduction
1.1 Titan is a provider of advanced anti-theft solutions, specialising in the development of state-of-the-art hardware devices with telematics and data-driven software services to provide its Customers withvehicle safety using modern telecoms protocols to actively monitor the Customer’s vehicles and allow mechanical, technological & electronic (remote control device and cloud) securing of that vehicle by disabling the engine and thereby preventing unauthorised movement of your Vehicle. In addition, we offer live Incident Alerts, track & armed response services plus our equipment has tampering alerts, and anti-signal jamming technologies, as well as calling for assistance from our Channel Partners such as armed response or vehicle dealerships amongst others.
1.2 When a Customer signs up for Titan’s vehicle safety solutions it enters into this Customer Agreement with Titan, and Titan provides the Customer with its Equipment and Services, allowing the Customer or Titan to secure your Vehicle via the mobile application, the cloud or your Titan Remote control device, subject to these Terms of Service.
2. User Agreement
2.1 Please read these terms and conditions carefully as it contains important information regarding your legal rights, obligations and remedies and is the agreement concluded between you (the Customer), and Titan Secure (Pty) Ltd, Registration No: 2023/881957/07 with registered office at Plot 107, 3 Erasmus Street, Mnandi AH, Gauteng, 0157 (herein referred to as “Titan“) and it also has application on your relationship with us and any of our nominated Channel Partners.
2.2 In other words, this User Agreement (referred to as our “Terms of Service” or the “User Agreement”) is a contract between you (“you” or “your” “Customer”) and TITAN Secure (Pty) Ltd (“Titan”, “We”, or “Us” or “our”), that you agree to be boundby.
2.3 These Terms of Service contain provisions, which are recorded in a similar bold font to this, and which provisions may have the effect of (i) limiting Titan’s liability or risk or that of a third party and/or (ii) placing risk or liability on you, the Customer and/or (iii) obliging the Customer to indemnify Titan or a third party and/or (iv) constituting a positive acknowledgement by the Customer of any fact.
2.4 If you agree to the Terms of Service on behalf of a Driver that is not the Vehicle Owner, then these Terms of Service will apply to the Vehicle Owner and the Driver, with the necessary changes in context and application, and the Customer is responsible and agrees to bring these Terms of Service to the Vehicle Owner and Driver’s attention and to obtain their consent and agreement to these Terms of Service.
3. Definitions of terms
In these Terms of Service, unless clearly inconsistent with or otherwise indicated by the context, the following capitalised terms shall have the meanings assigned to them hereunder:
3.1 “Account” means the account created on the Titan Platform by the Customer, including the Customer’s name and surname, identity number, email address and cell phone number and Vehicle details plus your selected Account password allocated to that Customer, and any Payment Method associated with that Account;
3.2 “Assistance” means assistance rendered to the Customer by Titan or our Channel Partners, which will be Charged to the Customer’s Account;
3.3 “Channel Partners” means Titan partners assisting it in delivering the Titan Solution, or rendering Services to the Customer;
3.4 “Charge” or “Charged” means any amount charged by Titan to the Customer for the provision of the Titan Solution, plus VAT if applicable, such as, amongst others, the Service Fee and other Charges the Customer has agreed to be liable for or where Titan or its Channel Partners render Assistance to the Customer or where the Customer is Charged for their Equipment, the repair, maintenance or replacement thereof;
3.5 “CPA” means the Consumer Protection Act, 68 of 2008 and its regulations and amendments from time to time;
3.6 “Commencement Date” means the date from which the Equipment is installed on the Customer’s Vehicle, as contemplated herein;
3.7 “Customer” means you as the Customer an individual (not a legal entity) of Titan who concluded these Terms of Service with Titan and has been Registered as contemplated herein;
3.8 “Driver” means the Vehicle driver Registered by the Customer as the primary driver;
3.9 “ECTA” means the Electronic and Communications and Transactions Act of 2002;
3.10 “Environment” means Titan’s existing or proposed software (including, without limitation, operating-, environmental-, application-, and database software and interfaces between same) and network (including without limitation, LAN’s, WAN’s, VPN’s, servers, hubs, routers, operating software, environmental software, application software and connectivity – both cable and wireless connectivity- between all of the same), Satellite/GPS and GSM/LTE networks, systems and set up and data formats and the Equipment firmware;
3.11 “Equipment” means our:
3.11.1 TITAN Secure which is a hardware device installed by us on your Vehicle containing our Environment, and
3.11.2 Titan Remote control devices (2), which is our Bluetooth remote control device that allows the Customer to engage the TITAN Secure on their Vehicle;
the ownership of such Equipment is hereby reserved by Titan until the expiry and payment in full under that Subscription to Titan.
3.12 “Incident” means theft, hijacking or an attempt to hijack or steal or unauthorised removal of the Customer’s Vehicle, tampering with our Equipment, and unauthorised movement of the Vehicle outside the borders of the Service Region;
3.13 “Payment Account” is the account where Titan receives the Service Fees from the Customer;
3.14 “Payment Gateway” means a third-party payment service such as Peach Payments and/or Paystack used by Titan to facilitate payment of the Service Fee and other Charges;
3.15 “Payment Method” means the Customer’s method of payment used to pay the amount(s) Charged under these Terms of Service such as credit card or debit card payments facilitated via the Payment Gateway;
3.16 “Platform” means Titan’s digital and/or electronic Platforms, hosted on our Website and/or our software applications (used by Customers on their Smart Devices, including the Application Program Interfaces (API)) used for monitoring the Customer’s Vehicle(s) and accessed by us and our Channel Partners to render the Service or Assistance to Customers;
3.17“ Policies” means Titan Policies applicable to Customers from time to time, which are available on request from Titan, and shall include applicable Channel Partner’s terms or policies;
3.18 “Registered” or “Registration” means the Customer’s/Driver’s registration on Titan’s Platform which is subject to accurate, comprehensive, and up-to-date completion of the online registration profile by the Customer (or by our call centre agents on the Customer’s behalf) and approval and verification of that Customer or his/her Driver by Titan in terms of the applicable Policies from (time to time) and installation of our Equipment on the Customer Vehicle(s), which Registration and approvals remain in the sole and unfettered discretion of Titan, throughout the term of these Terms of Service;
3.19 “Service” means the services offered to a paying Customer for the use of the Titan Solution by Titan and its Channel Partners, as described in 1.1;
3.20 “Service Fee” means the Service Fee payable by the Customer each month in respect of the use of the Titan Solution, based on one of our Subscription offerings, as posted on our Website;
3.21 “Service Region(s)” means the region(s) in which Titan Solution is intended to be used, being within the borders of the Republic of South Africa and specifically excludes all other regions;
3.22 “Smart Device” means any computer, mobile phone, tablet and other smart electronic device system used by the Customer to run our Platform from;
3.23 “Subscription” means the Customer’s selected subscription Service for the use of our Equipment, which subscription options are posted on our Website, and which is subject to these Terms of Service;
3.24 “Terms of Service” means these Terms of Service which shall include the Website Terms and our Policies which are incorporated herein by reference;
3.25 “Titan Solution” means the Customer’s use of our Platform, Environment, Services and Equipment in the Customer’s Vehicle;
3.26 “VAT” means value-added tax as levied in terms of the Value Added Tax Act, 89 of 1991, as amended from time to time;
3.27 “Vehicle” means the Customer’s Vehicle Registered with Titan, and the Customer hereby irrevocably throughout the term of this Agreement warrants that he/she has the legal authority to contract as set out herein, in respect of such Vehicle;
3.28 “Website” means Titan’s website(s) www.titansecure.io, and shall include any page thereon, or other website pages referenced therein, and is used subject to the Websites Terms;
3.29 “Website Terms” means the Website terms and conditions as posted on the Website, which is incorporated in these Terms of Service by reference and which forms part of these Terms of Service.
3.30 In these Terms of Service —
3.30.1 clause headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation;
3.30.2. an expression which denotes –
3.30.3 any gender includes the other genders;
3.30.4 a natural person includes a juristic person and vice versa;
3.30.5 the singular includes the plural and vice versa;
3.30.6 a Party includes a reference to that Party’s successors in title and assigns allowed at law; and
3.30.8 a reference to a consecutive series of two or more clauses is deemed to be inclusive of both the first and last-mentioned clauses.
3.31 Any reference in these Terms of Service to —
3.31.1 “business hours” shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
3.31.2 “days” shall be construed as calendar days unless qualified by the word “business“, in which instance a “business day” will be any day other than aSaturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
3.31.3 “laws” means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any Governmental Body; and the common law, and “law” shall have a similar meaning; and
3.31.4 “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;
3.31.5 The words “include” and “including” mean “include without limitation” and “including without limitation“. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
3.31.6 Any substantive provision, conferring rights or imposing obligations on Titan or the Customer and appearing in any of the definitions in this clause 3 or elsewhere in these Terms of Service, shall be given effect to as if it were a substantive provision in the body of the Agreement.
3.31.7 Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout these Terms of Service.
3.31.8 Unless otherwise provided, defined terms appearing in these Terms of Service in title case shall be given their meaning as defined, while the same terms appearing in the lower case shall be interpreted in accordance with their plain English meaning.
3.31.9 A reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.
3.31.10 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
3.31.11 Except to the extent that any provision of these Terms of Service expressly provides otherwise, if the only day or the last day for the exercise of any right,the performance of any obligation or taking (or procuring the taking of) any action in terms of any provision of these Terms of Service falls on a day which is not a business day, such right shall be capable of being exercised, or such obligation performed or action taken on the immediately succeeding business day.
3.31.12 The rule of construction that these Terms of Service shall be interpreted against the Party responsible for the drafting of these Terms of Service, shall not apply.
3.31.13 No provision of these Terms of Service shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a signatory to these Terms of Service.
3.31.14 The use of any expression in these Terms of Service covering a process available under South African law, such as winding up, shall, if either Titan or the Customer is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction.
3.31.15 Any reference in these Terms of Service to “these Terms of Service” or to any other agreement or document shall be construed as a reference to these Terms of Service or such other agreement or document, as amended, varied, novated or supplemented from time to time.
3.31.16 In these Terms of Service, the words “clause” or “clauses” and “annexure” or “annexures” refer to clauses of and annexures to these Terms of Service.
4. The Agreement
4.1 By Registering an Account on our Platform, the Customer and Driver agree to these Terms of Service; and
4.2 The Customer hereby agrees to be liable to:
4.2.1 pay the Service Fee to Titan, from the date of installation of our Equipment in your Vehicle, for the duration of your Subscription period (as posted on our Website) without deduction or setoff; and
4.2.2 pay for the Installation Charges and Equipment installed in your Vehicle, if you elect to terminate these Terms of Service before the end of your elected Subscription Period (as set out in clauses 5 and 6 below); and
4.2.3 pay for annual maintenance of the Equipment and parts at our standard rate applicable from time to time;
4.2.4 provide Titan with a debit order authorisation on the Customer’s Account, meaning a Payment Method must be provided; and
4.2.5 not enter into any agreement that conflicts with these Terms or is aimed at narrowing or expanding our and/or our Channel Partners’ rights and obligations under these Terms of Service; and
4.2.6 to the collection of data and usage information from you and the Equipment on your Vehicle, subject to our Privacy Policy (Clause 14 of our Website Terms).
4.3 The Customer and Driver hereby irrevocably warrant that their use of the Vehicle and our Services will always comply with applicable laws, regulations, and rules, and our Policies. Titan will have no liability arising from or relating to the Customer’s/Driver’s unlawful or illegal use of the Vehicle, our Services or use of the Vehicle outside of the Service Region, or in breach of a material term of these Terms of Service.
5. Service Fee and Charges
5.1 Titan agrees to install the Titan Solution on your Vehicle and provide the Customer with 2 Titan Remotes, and access and use of our Platform and Services, subject to:
5.1.1 the Customer and Driver’s adherence to our Policies; and
5.1.2 payment of the monthly Service Fees by debit order for the Subscription period, and other charges stipulated herein (4.2 above);
5.1.3 the Customer’s right to cancel the Subscription on 20 (twenty) business days’ written notice to Titan, as provided for in the CPA, and payment of our Cancellation Charges (see 6 below).
6. Payment Terms & Cancellation
6.1 The Customer agrees and understands that the Service Fees levied under this User Agreement will be Charged by Titan monthly to the Payment Account, based on the Customer’s selected Subscription, and Payment Method.
6.2 The Service Charge will escalate annually on the anniversary date of your Commencement Date, and we will communicate this increase to you in advance.
6.3 Refunds of Service Fees are not offered, but a Customer as defined in the CPA may return the Equipment within 10 days from installation as contemplated in the CPA, at your cost, or terminate as stated above (5.1.3 above).
6.4 If the Customer chooses to terminate these Terms of Service during the Subscription Period (meaning early termination), or commits a material breach of these Terms of Service, you will be subject to payment of a reasonable premature cancellation charge, determined by Titan, and you will have to pay all outstanding amounts in respect of the Services and/or Assistance rendered to you at that time, plus you hereby irrevocably agree to:
6.4.1 reimburse Titan for the Equipment and our de-installation or removal Charges at a fixed fee of R 5,000 VAT inclusive, as our agreed Cancellation Charge (see 8 below);
6.4.2 return the Equipment to us at your cost without delay.
6.5 In addition, notwithstanding any other provision of these Terms of Service, and to the extent permitted by applicable law, Titan reserves the right to seek reimbursement from you, and you will reimburse Us, if We: (i) suspect fraud or criminal activity associated with the use of the Equipment, our Services or your Vehicle; (ii) have supplied our Services in accordance with these Terms of Service yet We receive any chargeback from the Payment Method used by you, despite the provision of the Services in accordance with these Terms of Service (iii) receive a Dispute from the Customer subject to the dispute resolution processes you agreed to in the Website Terms.
6.6 You agree that We have the right to obtain such reimbursement by instructing our Payment Gateway (and Titan will have the right) to Charge the applicable Payment Method, for any Charge owing, to your Payment Method, or by obtaining reimbursement from you by any other lawful means. If We are unable to obtain such reimbursement, We may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Platform and our Services, in which event we will notify you on your Account (on the Platform), without any liability to us.
6.7 If We are unable to obtain such reimbursement, We may, in addition to any other remedies available under applicable law, take the steps under Clause 16.
6.8 You shall repay to Titan on demand all costs which Titan incurs as a result of your failure to comply with these Terms of Service or any early termination of your Subscription, which may include:
6.8.1 costs in connection with tracing you and/or the Vehicle or our Equipment;
6.8.2 all legal costs on the attorney-client scale;
6.8.3 collection commission that may legally be recovered from you by Titan’s attorneys or collection agents on amounts collected;
6.8.4 the costs incurred in obtaining possession of the Vehicle or our Equipment as well as the cost relating to the valuation, removal, transport, repair, maintenance and storage thereof.
7. Services
7.1 Titan Services to its Customer consist of:
7.1.1 installation of our Equipment on the Customer’s Vehicle;
7.1.2 real-time monitoring of Vehicles and Incident reporting to Customers and our Channel Partners in the Service Region; and
7.1.3 providing Customers with Assistance at the Customer’s cost in the Service Region; and
7.1.4 replacement of faulty Equipment or parts at our cost.
7.2 Titan will provide the Services described on our Website, based on the Subscription service selected by the Customer.
7.3 Titan undertakes to perform only such duties as are expressly set forth in these Terms of Service, and the Website Terms, and no other duties will be implied. Titan has no liability under, and no duty to inquire as to, the provisions of any agreement, other than these Terms of Service.
8. Termination
8.1 The Subscription will automatically renew on a month-to-month basis. To terminate your Subscription the Customer must by written or telephonic notice to Titan of no less than 30 calendar days before the end of the Subscription period, terminate the Services, failing which the Customer will be charged the Service Fee for the subsequent month, in advance.
8.2 After lawful termination of these Terms of Service and full payment of the Equipment, the Customer shall be entitled to retain the Equipment but it is expressly agreed that the Services and Assistance will not be provided by Titan, nor will the Platform have any functionality, subject to the Customer’s undertakings in 11 below, which shall remain in force despite termination of these Terms of Service for whatever reason.
8.3 A Customer defined as a Consumer in the CPA shall be entitled to cancel any Service Contract within 7 days from the conclusion of this User Agreement, in terms of the cooling-off period in section 44 of the ECTA, without liability, but subject to the return of Titan’s Equipment.
9. Installation & Titan Remote
9.1 The Customer agrees and authorises Titan to install their proprietary Equipment on the Customer’s Vehicle, and irrevocably agrees:
9.1.1 to notify both the legal owner or financier and the insurers before such installation, to obtain their agreement to such installation, which the Customer warrants will be obtained;
9.1.2 to either attend a Titan approved installation centre; or have the unit installed at the Customer’s selected premises; and
9.1.2.1 the Customer hereby agrees to make himself/herself available with their Vehicle for the Titan Technician to install the Equipment at the agreed time and place, failing which the standard installation fee will be charged in the absence of the Customer and their vehicle being present at the Customer’s selected premises date and time, to which the Customer hereby agrees;
9.1.2.2 the Customer agrees and understands that the Customer’s selected premises must be a safe and secure place where others do not monitor the work of the Titan Technician.
9.1.3 to allow Titan to repair any damage to the Vehicle caused during installation at its cost and through Titan’s selected service provider, and to appoint an assessor to verify such damage in its sole discretion if need be;
9.1.2.4 to pay Titan its standard call-out fees where our Technician determines that any repair to the Equipment is due to the Customer’s misuse, and no fault of Titan.
9.2 A Customer will receive 2 Titan Remotes which are Bluetooth remote control units matched with the Equipment on that Customer’s Vehicle, which can be used to immobilise the Vehicle within a radius of 5 metres, and subject to These Terms of Service and our Acceptable Use Policy.
9.3 The Customer agrees:
9.3.1 to secure and retain the Titan Remotes and not lose or discard the remotes;
9.3.1 not to use the Titan Remotes other than to engage or disengage the TITAN Secure, or when called upon by Titan to test the remote device;
9.3.3 if lost or stolen agrees and hereby authorises Titan to Charge for the replacement costs of the Titan Remote(s) via the Customer’s Payment Method.
9.4 The Customer is solely responsible for the risk in the installation and use of the Equipment on the Vehicle.
9.5 Despite the installation contemplated herein, it is expressly agreed that the Equipment will not accede to the Vehicle or its legal owner and will remain separate as a removable after-market fitting installed on the Vehicle, and owned by Titan, subject to transfer of ownership to the Customer as set out herein, and our Fair Use Policy.
10. Warranty
10.1 Our Equipment carries a lifetime warranty if installed by a Titan Technician, subject to the Customer’s compliance with these Terms of Service, including allowing an annual maintenance inspection by Titan for the Equipment at our standard rates applicable from time to time, failing which, the warranty on the Equipment will fall away.
10.2 Should our Equipment become defective within our Fair Use Policy Titan will replace same at Titan’s cost, at the Customer’s designated place of installation in main centres in the Service Region free of any call-out charges, or a Titan approved installation centre.
11. Responsibilities of Customer
11.1 The Customer and Driver hereby expressly and irrevocably agrees to:
11.1.1 to designate and truthfully identify the primary Driver on the Vehicle to Titan, if that Driver is not the Customer, from time to time;
11.1.2 Titan monitoring or recording the Customer’s activity or movements and habits in the Vehicle, through the use of our Equipment;
11.1.3 Titan’s Acceptable Use Policy set out in the Website Terms; and
11.1.4 the Use of the Customer’s Personal Information provided to Titan in line with its Privacy Policy (Clause 14 of our Website Terms);
11.1.5 to Titan and its Channel Partners rendering the Services or Assistance contemplated herein if deemed necessary in the sole and absolute discretionof Titan, but at the Customer’s cost and subject to our Acceptable Use Policies;
11.1.6 to only allow a Titan authorised Technician to install, remove or inspect the Equipment on the Customer’s Vehicle;
11.1.7 to subject the Equipment to an annual inspection at a Titan approved installation centre;
11.1.8 to immediately notify Titan of an Incident.
11.2 The Customer and driver hereby expressly and irrevocably agrees that he/she shall not interfere or tamper with our Equipment or our Environment. That means you can’t:
11.2.1 tamper, remove, interfere or compromise, open or bypass any of our Equipment– you’re not allowed to try and get around restrictions on accessing our Equipment or copying or using any part of the Equipment for another use other than that intended under this Agreement or to copy or use the content or intellectual property in or on the Equipment, or our Environment;
11.2.2 introduce any malware or any other code or viruses that could harm Us, the Equipment, our Customers, our Channel Partners or our Services or Environment;
11.2.3 access our Services through any technology or means other than our Platform interface;
11.2.4 use our Services to build a similar service, identify or poach our customers or publish any performance or benchmark analysis relating to the Platform;
11.2.5 reverse engineer, decipher, modify, or take source code from our Equipment or Platforms that are not open source, without our prior written permission.
11.3 Customers are solely responsible for:
11.3.1 Ensuring the legality of entering into these Terms of Service and installing our Equipment in your Vehicle (meaning we assume this will not breach any other agreement or warranty, except if you advise us in writing to the contrary before installation);
113.2 Paying for our Services or that rendered by our Channel Partners where it was deemed necessary to render Assistance to you.
11.4 You acknowledge, agree, and understand that Titan does not:
11.4.1 Make any representations about or guarantee against any loss or damage to your Vehicle, or the protection of your Vehicle;
11.4.2 provide Vehicle recovery services, armed response;
11.4.3 In any way, warrant, supervise, direct, control, or evaluate the Assistance taken by our Channel Partners other than instructing them on your behalf to render Assistance, to which you hereby irrevocably agree;
11.4.4 Make any representations about and does not guarantee, and you agree not to hold Titan responsible for:
11.4.4.1 The quality, safety, or legality of our Equipment or Services;
11.4.4.2 The ability or willingness of a Channel Partner to render Assistance as may be required in any given situation;
11.4.4.3 The accuracy or not of our Incident alerts, Platform and Equipment in detecting unauthorised use of your Vehicle.
12. Relationship with Titan
12.1 It is an express term of these Terms of Service that Titan retains ownership of the Equipment including any software, documentation, or other intellectual property associated with the Equipment, as stated in Clause 11 of our Website Terms.
12.2 Any disputes about our Services will be subject to the Dispute Resolution mechanisms set out in our Website Terms (Clause 16), to which you hereby irrevocably agree.
12.3 Titan, in its sole discretion, reserves the right to suspend or terminate a Customer’s Account (which shall include our Services to that Customer), immediately upon giving notice to you if Titan believes you may be abusing our Equipment, Services or Platform or as otherwise permitted by these Terms of Services and the Policies, which may impact your ability to receive our Services. In such instances, you irrevocably agree to return the Equipment to our offices or the nearest installation centre at your cost for removal by Titan’s authorised Technicians, failing which we may hold you liable for our Cancelation Charge (6.4), and you shall have no claim of whatsoever nature against Titan as a result of Titan exercising its right under this clause.
12.4 Titan does not guarantee the suitability of the Services offered and Titan does not take responsibility for any damage or loss to you, or of your Vehicle and consequently the Customer and Driver hold Titan harmless and free from any liability, claim, counterclaim, loss or damages in this regard. It is therefore agreed and understood that Titan only provides its Equipment and Servicessubject to these Terms of Service and the Website Terms, and Titan provides no representation or guarantee on the preservation of your Vehicle or that you will not suffer harm, or loss to property or person, or the like.
13. Assistance
13.1 If the Customer does not respond to an Incident alert within the specified time in that alert, the Customer hereby irrevocably authorises Titan and its Channel Partners to provide Assistance to the Customer where the Customer’s Vehicle is deemed to be subject to an Incident and to share Customer’s Personal Information for that Purpose with our Channel Partners, at the Customer’s cost, subject to the terms of 11 above.13.2
13.2 The Customer is entitled to 2 call-outs per calendar month without Charge for an Incident, with subsequent call-outs being Charged to the Customer’s Payment Method at our standard rates posted on our Website from time to time.
13.3 Titan will communicate an Incident to the Customer as soon as it becomes aware thereof via the Platform. The Customer is responsible for reading or receiving such alerts, and for responding to them.
13.4 Assistance is focused on the main cities in the Service Region. Assistance can be rendered in outlying areas subject to our Channel Partner’s Charges and availability.
13.5 Titan will not have any liability or obligations, including under or related to our Platform, Services or Assistance rendered to you, nor for any acts or omissions by us or our Channel Partners, except where a court of competent authority has established fraud or criminal conduct on our part, and you fully indemnify Titan and its Channel Partner against any such liability or costs.
14. Platform Communications
14.1 The Customer agrees:
14.1.1 to receive messages and any other communication from Titan on its Account on the Platform, and any other medium provided to Titan by the Customer.
14.1.2 to use the communication services available on the Platform as the means to communicate with Titan. The Customer expressly agrees to the use of the Customer’s personal information and contact details (as set out in our Privacy Policy in the Website Terms) to contact the Customer, and /or share their Personal Information in the event of an Incident with our Channel Partners.
14.1.3 that Titan will notify the Customer of an Incident detected by Titan with his/her Vehicle via Whatsapp, email and SMS.
14.1.4 that it is the Customer’s responsibility to action these messages, and Titan cannot be held liable for any loss or damage occasioned by a failure on the Customer’s Smart Devices to receive communications or the loss or damage to a Vehicle, and
14.1.5 that Titan is not responsible for the functionality of the Platform on any Smart Device of the Customer.
14.2 You also acknowledge, agree, and understand that:
14.2.1 the Customer is responsible for ensuring that our Platform functions correctly and is compatible with the Smart Devices the Customer is using the Platform on; and
14.2.2 Titan merely makes the Platform and Services available to enable Customers to receive Incident alerts on the Platform.
14.2.3 at all times Customers are responsible for monitoring the Platform and evaluating and determining the suitable action to be taken in response to our Incident alerts, in their sole determination.
14.3 Customers can contact Titan via the Platform and our call centre or our email address at: contact@titansecure.io
15. Misuse
15.1 The Equipment and Platform shall be used by the Customer for its intended purpose and according to our Policies.
15.2 The Customer shall not be entitled to commercially exploit the Services in any manner whatsoever without Titan’s prior written consent, including without limitation, the prohibitions and directives raised in clause 11.1 above.
15.3 You acknowledge and agree that a violation of any provision of clauses 4, 5, 6, 8, 9, 12, 23 and 25 is a material breach of the Terms of Service, which clauses shall survive termination hereof. Your Account may be permanently suspended if you violate these sections.
16. Default
16.1 If the Customer is in “default”, meaning the Customer fails to pay the Service Fee or any other amounts when due under the Terms of Service, Titan will be entitled to other remedies described in this Section 16.1 in addition to such other remedies that may be available under applicable law or these Terms of Service.
16.2 For the avoidance of doubt, the Customer will be deemed to be in default on the earliest occurrence of any of the following, the Customer:
16.2.1 fails to pay the Service Fee or other Charges payable under these Terms of Service when due;
16.2.2 initiates a chargeback with a bank or other financial institution resulting in the Service Fee being reversed to the Customer; or
16.2.3 takes other actions or fails to take any action that results in a breach of clause 15.3.
16.3 If Customer is in default, Titan may, on 15 calendar days’ notice to the Customer:
16.3.1 demand payment of arear Service Fees or other Charge on or before the middle of the month in which no payment was made; and/or
16.3.2 demand return of Titan’s Equipment within 3 working days to a location determined by Titan, for the removal of our Equipment from such defaulting Customer’s Vehicles; and/or
16.3.3 close Customer’s Account, temporarily or permanently and revoke Customer’s access to the Platform and Services; and/or
16.3.4 assert or enforce any other remedy available under these Terms of Service, such as early termination and levying the Cancellation Charge.
16.4 Any arrear amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees (on the highest scale) and other costs of collection to the extent permitted by applicable law, shall be due and payable by a Customer in breach of these Terms of Service.
16.5 At our discretion and to the extent permitted by applicable law, Titan or its Channel Partners may, without notice, Charge all or a portion of any amount that is owed on any Account to the Customer’s Payment Method; or, set off amounts due against other amounts received from Customer or held by Titan; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
17. Intellectual Property
17.1 By agreeing to these Terms of Service, the Customer agrees and confirms that it is familiar with Titan’s Intellectual Property Rights and conditions (as defined and set out in Website Terms) and that it shall strictly comply with same.
18. Data Privacy and Protection
18.1 agreeing to these Terms of Service, the Customer agrees and confirms that it is familiar with Titan’s Privacy Policy (as set out in Website Terms) and that it shall strictly comply with same, and as set out herein.
19. Amendments
19.1 Subject to the conditions set forth herein, Titan may, in its sole discretion, amend these Terms of Service and any of the other agreements/Policies that comprise the Terms of Service at any time by posting a revised version on the Platform.
19.2 No addition to or variation, consensual cancellation or novation of these conditions and no waiver of any right arising from these conditions, or its breach or termination will be of any force or effect unless reduced to writing and signed by Titan’s Board of Directors and the Customer.
20. Business Transfer
20.1 Any corporation or association into which Titan may be merged or converted or with which Titan may be consolidated, or any corporation or association to which all or substantially all the business of Titan may be transferred will succeed to all the rights and obligations of Titan under this User Agreement, the Customer hereby agreeing to such cession and assignment (including the Payment Method), without further action, to the extent permitted by applicable law.
21. Records of Compliance
21.1 Customers are solely responsible for the creation, storage, and backup of their Service and legal and tax documentation. These Terms of Service and any Registration for or subsequent use of the Platform will not be construed as creating any responsibility on Titan’s part to store, backup, retain, or grant access to any information or data for any period, other than as required by the ECTA.
22. Confidentiality
22.1 The Customer agrees to adhere to the Privacy Policy and Confidentiality provisions posted in our Website Terms, with which it declares itself familiar, and which will apply to the Customer and Driver.
23. Indemnity
23.1 The Platform and the Services are provided “as is” and on an “as available” basis. Titan makes no representations or warranties with regard to the accuracy or correctness of the Platform, the Services, Equipment, or any Assistance services noted in these Terms of Service or the Website Terms, or for any functionality or compatibility of Smart Devices with our Platform.
23.2 In the event that the Platform is unavailable or the information displayed is incorrect, Titan shall not be responsible or be deemed responsible or liable for any delay or loss or increased costs or unforeseen issues relating to your Vehicle or property, the Services or preventing the Customer/Driver from receiving messages or sending messages, responding thereto, or in any other way impacting on the Customer and the Customer and Driver holds Titan and its Channel Partners harmless and hereby indemnifies Titan against any claim or damages in this regard suffered by the Customer, Driver, its passengers, employees or such other persons as may have suffered loss.
23.3 To the maximum extent permitted by applicable law, Titan disclaims all express and implied conditions, representations, and warranties including, but not limited to, the warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement. Some or all of the above limitations may not apply to consumers under the CPA.
24. Applicable Law
24.1 The Parties hereto agree that the laws of the Republic of South Africa shall apply to these Terms of Service, their interpretation and any matter in connection therewith, and agree to the exclusive jurisdiction of the Western Cape High Court in Cape Town.
25. Cession, Assignment and Subcontracting
25.1 The Customer and Driver shall not transfer (whether it be by cession, assignment, encumbering or delegating) any of your rights or obligations in terms of these Terms of Service to any third party without the prior written consent of the Board of Directors of Titan.
25.2 Any purported transfer of these Terms of Service or the Customer’s rights hereunder shall entitle Titan to cancel these Terms of Service immediately as contemplated in clause 12.3 above.
26. Enforceability
26.1 If any provision of these conditions is declared by a competent Court to be unenforceable, illegal, void or contrary to public policy, such declaration will not affect the binding force or effectiveness of any of the remaining provisions of these conditions, it being the intention and declaration of the parties that had they known of such unenforceability, illegality, invalidity or that the provision was contrary to public policy, they would nevertheless have entered into these conditions, containing all such remaining provisions.
27. Force Majeure
27.1 Notwithstanding anything seemingly to the contrary contained in these Terms of Service, if, and to the extent that, vis major or force majeure or casus fortuitus (“Interrupting Circumstances”) cause delays in or failure or partial failure of performance by a Party of all or any of its obligations under these Terms of Service or any Subscription, then the affected portion or the entirety of these Terms of Service or the affected Subscription, as the case may be, shall be suspended for the period during which the Interrupting Circumstances prevail, subject to the Party seeking to rely on them using its commercially reasonable efforts to limit the effect of the delay in or failure or partial failure of performance on the other Party. If the Interrupting Circumstances affect any material part of the Agreement or any Subscription, then the affected material part shall be suspended only for a maximum period of 60 (sixty) days whereafter any affected Party shall be entitled to cancel these Terms of Service or the affected Subscription on 14 (fourteen) days’ written notice. Written notice of the Interrupting Circumstances specifying their nature and date of commencement shall be dispatched by the Party seeking to rely on them (on whom the onus shall rest) to the other as soon as reasonably possible after their commencement. Written notice of the cessation of the Interrupting Circumstances shall be given by the Party who relied on them within 2 (two) Business Days after such cessation. No Party shall subsequently be obliged to comply with the obligations suspended during such period. The Party whose performance is interrupted by the Interrupting Circumstances shall be entitled, provided that such Party shall give notice to that effect with the written notice of the Interrupting Circumstances as provided above, to extend the period ofthese Terms of Service by a period equal to the time that its performance is so prevented.
27.2 For the purposes hereof vis major and force majeure include acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, rationing of supplies, flood, storm, fire or (without limitation eiusdem generis) any other circumstances beyond the reasonable control of the Party claiming force majeure or vis major and comprehended in these Terms of Service force majeure or vis major.
28. Anti-Bribery and Corruption
28.1 Titan complies with all anti-bribery and corruption laws and associated regulations to which Titan is subject. The Customer represents that (i) it will comply with all applicable anti-bribery and corruption laws and associated regulations, and will not knowingly take any action that will, directly or indirectly, cause Titan to violate any such laws or regulations; (ii) no financial or other advantage (other than fees for services provided in terms of these Terms of Service) has been, will be or is agreed to be offered or given to any person (whether working for or engaged by Titan or any third party) by or on behalf of the Customer or its Related Persons (as defined in Section 2 of the Companies Act, No. 71 of 2008).
28.2 This clause is material to these Terms of Service, and without prejudice to the other rights which it may have in law if Titan has reasonable grounds to suspect a breach by a Customer of clause 28.1 above, Titan shall for the purpose of clause 12.3 above of these Terms of Service be entitled to terminate these Terms of Service immediately without incurring any liability to the Customer.
29. General Provisions
29.1 These Terms of Service, together with the relevant Subscriptions, records the entire and sole agreement between the Parties and supersedes all other writings or documents, which may have been issued between them, other than the Website Terms which remain in force between the Parties hereto.
29.2 Neither Party may make or issue, directly or indirectly, any formal or informal, public or private announcement, advertisement or statement in connection with these Terms of Service or the negotiations leading up to it without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.
29.3 The Parties choose as their domicilia citandi et executandi for all purposes under these Terms of Service, notices or other documents or communications of whatsoever nature (including the exercise of any option), the addresses provided by the Customer during the sign-up process and for Titan at the address in Clause 2.1 above.
29.4 Any corporation or association into which Titan may be merged or converted or with which Titan may be consolidated, or any corporation or association to which all or substantially all the business of Titan may be transferred will succeed to all the rights and obligations of Titan as payment holder and payment agent under these Terms of Service and the applicable Payment Instructions, without further act to the extent permitted by applicable law.
Cape Town, on 23 May 2024.