In this Agreement:
1.1 Clause headings are for convenience and shall not be used in this interpretation.
1.2 Unless the context clearly indicates a contrary intention, an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa and the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.3 “Agreement” means this agreement, including the front page, as well as any other annexure from time to time incorporated by reference to this agreement.
1.4 “Authorised users” means those who may be authorised by the Customer to request position updates in respect of the vehicle from the Kabzy or to request immobilisation of the vehicle.
1.5 “Commencement date” means the date of the installation certificate.
1.6 “Kabzy” means Identity Innovation Ltd. (Registration No 533584).
1.7 “Customer” means the subscriber who is the person and/or company whose full details are set out on the face of the document, paragraph 1 and/or 2 hereof.
1.7 “False alarm” means an alarm message sent to a Kabzy in respect of a panic alarm, area violation or battery tampering where such a condition is not an actual emergency and the Customer/authorised user has not notified the Kabzy in respect thereof.
1.8 “GSM Service” is the service rendered by a cellular service provider for transmitting location and speed data from the product to an authorised user‟s cell phone and to Kabzy.
1.9 “Occurrence” means the happening of an event which initiates the recovery process or some other action for which the product is designed.
1.10 “Product” means the Kabzy Secure range of products to be installed in the Customer‟s vehicle.
1.12 “Service” means the package of services detailed in the price list and Stolen Vehicle Recovery and GSM Services contract, with reference to each individual version of the product.
1.13 “SMS” means Short Message Service.
1.14 “Subscription charge” means the monthly amount (inclusive of VAT) payable by the Customer for the service as set out on the face hereof.
1.15 “Territory” means the Republic of Ireland.
1.16 “User manual” means the user manual in respect of the product to be installed for the Customer on the installation of the product.
1.17 “VAT” means Value Added Tax payable in terms of the Value Added Tax Consolidation Act 2010 (as amended).
1.18 “Vehicle” means the vehicle in which the product will be installed.
This agreement shall commence on the commencement date and shall endure on a month by month basis from the commencement date where it shall continue indefinitely unless and until it is terminated by either party on the giving of 1 (One) months written notice to the other party.
3.1 The Customer shall pay the monthly subscriptions in advance by way of direct bank debit order to KABZY from time to time. Kabzy shall be entitled to increase the subscription by the giving of not less than 30 (THIRTY) days written notice to the Customer.
3.2 Any amounts not paid timeously shall become payable, together with interest thereon and the penalties charged to Kabzy by the bank, from the date when the amount became due and payable until the date of payment at 2% (TWO PER CENT) above the prime rate.
3.3 In the event that a third party is paying the Customer’s subscription, this shall in no way limit the Customer’s obligation to pay such subscription in the event of the third party failing to do so
3.4 The Customer agrees that the amounts contained in a Tax Invoice issued by Kabzy shall be due and payable unconditionally in cash on installation or, if the Customer is a Credit Approved Customer, within 30 (THIRTY) days from the end of the month in which the Tax Invoice has been issued by Kabzy
3.5 The Customer may not withhold payment of any amount due in terms of this contract for any reason whatsoever and no extension of time for payment of any amount shall be binding unless agreed to in writing by Kabzy.
3.6 The Customer is not entitled to set off any amount due to the Customer by Kabzy against this debt.
3.7 The Customer agrees that a certificate issued and signed by any director or manager of Kabzy or its duly appointed auditors from time to time, whose authority need not be proved, shall be prima facie proof of the indebtedness of the Customer at the date of such certificate.
3.8 The Customer expressly agrees that no debt owed to Kabzy by the Customer shall become prescribed before the passing of a period of 6 (SIX) years from the date the debt falls due.
4. Limitation of Liability
Whilst KABZY shall take every care to ensure that all reasonable efforts are made regarding the product and the service, such product and service can be affected by factors outside KABZY‟s control. KABZY does not, accordingly, provide any warranty nor accept any liability arising in respect of any failure in the provision of the service arising from any negligence or gross negligence on the part of KABZY or any damage, including any loss of profits, business or revenue, or any consequential loss suffered by the Customer as a result of any failure of the product. The Customer remains responsible for ensuring that the product is comprehensively insured at all times, whether on a rental option or otherwise.
5. Customer’s Responsibility
5.1 The Customer should, on a monthly basis, upon prior notification to Kabzy, test the panic and other alarm statuses where applicable with the Kabzy service to ensure that the product is always in good working order.
5.2 In the event of an occurrence and the Customer’s vehicle being recovered , should the Customer elect not to collect the vehicle at the scene, he hereby duly authorises the recovery service provider to tow the said vehicle away from the scene at the Customer’s risk, that such vehicle will be stored at the Customer’s risk and that he/she/it will be liable to the recovery service provider for any storage costs which become payable in respect of the storage of the said vehicle commencing from 24 (TWENTY FOUR) hours after the vehicle has been delivered to the recovery service provider’s premises. All costs incurred in this regard shall be for the account of the Customer.
5.3 The Customer shall inform the vehicle manufacturer of the fitment of the product where the vehicle manufacturer requires such notification.
6. Kabzy’s Responsibility
6.1 Whilst every care will be taken by Kabzy in the installation of the product, no liability shall be assumed of any nature whatsoever by Kabzy in respect of there being any damage to the vehicle as a result of such installation of the product in the vehicle, prior to or after installation, unless noted on the installation certificate.
6.2 Kabzy shall be responsible for the repair and/or replacement, in its sole discretion, of the product, or any parts thereof at no charge to the Customer during the first 12 (TWELVE) months from the date of installation where the product is found to be defective due to faulty components, workmanship or design, but excluding any tampering, modification, collision and/or other damage sustained by the product outside the control of Kabzy.
7. Suspension and Termination of Service
7.1 Kabzy may, at any time, without notice and without incurring any liability whatsoever, suspend the service either in whole or in part in the event of any one or more or all of the following occurring:
7.2 Technical failure of the GSM network and/or its reporting structures, modifications/maintenance to the GSM network by the GSM service provider.
7.3 Due to any Government and/or regulatory authority requirement.
7.4 The GSM provider ceasing to make the network available to Kabzy or if it stops trading for any reason whatsoever.
7.5 The Customer fails to make any payment of any installment on the due date therof.
7.6 Kabzy is prevented from rendering the service due to force majeure.
7.7 Any cancellation by either party after the initial period of the contact.
7.8 Automatically and without prior notice and without liability on the part of Kabzy, in the event of the Customer utilising the service in any manner deemed by Kabzy in its sole and absolute discretion to be inappropriate (and the Customer hereby indemnifies and holds Kabzy harmless against any claim that may arise against Kabzy as a result of such improper use of the service). Automatically, further, if the Customer or authorised user misuses the system.
7.9 The Customer, failing to inform Kabzy in writing within 7 (SEVEN) days after the change of any Director, Member, Shareholder, Owner or Partner or address or the alienation by the Customer of its business, and failure to give such notice shall constitute a material breach of this Agreement by the Customer to which Kabzy shall have the right at its sole discretion to cancel the Agreement, alternatively, to withdraw any credit facility advanced to the Customer and demand payment of any amount then outstanding by the Customer in full.
8. Additional Charges
8.1 The Customer shall be liable for all additional charges in respect of the de/re- installation of the product, any false alarms after the third one for any specific month, incident reports, testing the secure units, etc.
8.2 In the event that the Customer utilises the international roaming facility, he will be liable for the additional costs incurred by SMS/GPRS transmissions made while outside of the territory.
8.3 The Customer shall be entitled tohave a maximum data transfer per month of 15 SMS/emails. Any usage in excess to the allowable amount per month will be charged as per Standard Rates of Kabzy for such excess.
8.4 Installations are to be performed at Kabzy’s desired location. Where on site installations are agreed upon, travelling in excess of a 100km round trip will be charged at €1.00 per/km.
8.5 All additional charges shall be payable by the Customer in terms of the Standard Rates of Kabzy for any goods and services rendered then charged by it to its usual customers, which rates may be obtained on request.
9. Cession and Delegation
The Customer may not delegate, cede and/or in any other way deal with the product and/or this contract without Kabzy’s prior written approval.
10. Operation Territory
The Customer acknowledges that the product will only operate in the territory in the event that a GSM network of the GSM service provider is available and obtaining a signal in the area where the vehicle is being operated.
Ownership of the Sim card and connected GSM subscription shall always vest in Kabzy.
12.1 This document contains the entire agreement between the parties and neither of them shall be bound by any undertakings, representations, warranties, promises and the like not provided herein and no alteration or addition to this agreement shall be valid unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of Kabzy.
12.2 In the event that KABZY institutes any legal proceedings of any nature whatsoever against the Customer arising out of this agreement, the Customer shall be liable to pay all the legal expenses of Kabzy on the attorney and own client scale, including but not limited to any tracing fees, collection charges, valuation fees, stamp duties or any other costs Kabzy incurs .
12.3 Any document shall be deemed duly presented to and accepted by the Customer (i) within 5 days of prepaid registered mail to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers or any director, member’s or owner’s fax numbers; or (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (iv) within 48 hours if sent by overnight courier or (v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e-mailed to any e-mail address provided by the Customer.
12.4 The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
12.5 The Customer undertakes to inform Kabzy in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer‟s business and failure to do so will constitute a material breach of
the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
12.6 Any order is subject to cancellation by Kabzy due to acts of God or any circumstance beyond the control of KABZY, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
12.7 Any order is subject to cancellation by Kabzy if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
12.8 Ownership in all goods sold remains the property of Kabzy until they are paid for in full.
12.9 The Customer hereby consents to the storage and use by Kabzy of the personal information that it has provided to Kabzy for establishing its credit rating and to Kabzy disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Kabzy will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party
12.10 Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
13.1 The Customer hereby indemnifies Kabzy against any claims for damage to the vehicle resulting from a refusal on the part of the vehicle manufacturer to honor the vehicle warranty or maintenance plan, which refusal is based on the product having been fitted to the vehicle.
13.2 The Customer indemnifies Kabzy against any claims for damage to the vehicle which are not covered by the vehicle manufacturer’s warranty, and which can be linked to the Product installation and/or functioning.
13.3 Where the Customer has selected the immobilisation option, he acknowledges that neither Kabzy, its subsidiaries or affiliates accepts or shall have liability of whatever nature and howsoever arising in respect of any claim, damages, loss, expense, injury or loss of life which may occur directly or indirectly as a result of the immobilisation function functioning, not functioning or malfunctioning.
In the event that the customer fails to pay any amount due in terms of this Agreement, or is in breach of any other term of this Agreement and after having received due notice thereof from Kabzy and failing to remedy such breach within 7 (SEVEN) days thereof, then and in that event Kabzy shall be entitled:
14.1 to immediately institute action against the Customer claiming from the Customer the full balance outstanding in respect of any uncompleted monthly payment, or
14.2 to cancel the Agreement and take possession of any goods delivered to the Customer and claim any damages suffered. These remedies are without prejudice to any other right Kabzy may be entitled to in terms of this Agreement, or in Law.
14.3 In the event of cancellation by Kabzy, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
15. Extended Warranty/Maintenance
If the Subscriber accepts this option Kabzy shall maintain and repair the unit circumstances as set out in Clause 6.2 above occur
If the Subscriber accepts this option, KABZY will keep the unit insured against all risks of theft or damage from collision and/ or any other damage sustained by the product for the duration of the contract.
If the Subscriber wishes to terminate this Agreement for any reason whatsoever after 14 days but within the first 30 days, the Subscriber may apply to Kabzy for such with a cancellation penalty of 20% of the remaining Agreement.
The signatory hereby binds himself/herself in his/her personal capacity as surety and co-principal debtor in solidum for the due performance of all the Clients obligations under this Agreement.