Terms & Conditions
TERMS AND CONDITIONS OF AGREEMENT FOR THE INDIVISIBLE SUPPLY OF SERVICES AND
EQUIPMENT SUBSCRIBER AGREEMENT
1. INTRODUCTION
1.1. This Agreement is for the supply to you, on an indivisible basis, of the Services and Equipment for the duration of the Agreement.
1.2. The Company shall supply the Services to you.
1.3. The terms and conditions contained in this document form part of the Agreement between the Company and yourself. Accordingly, please ensure that you understand and comply with each term and condition contained herein. In addition, you agree that you have read and understood the terms and conditions. If you do not understand any of the terms and conditions, please ask a Company representative to explain them to you.
1.4. Important clauses which may limit the Company’s responsibility or involve some risk for you are explained to you and appear in bold. You must pay special attention to these clauses.
2. DEFINITIONS
2.1. “Agreement” means the Subscription Form, the terms and conditions as defined herein, and the Debit Order Form (if applicable);
2.2. “Annual Fee” means the annual fee incurred by yourself for the provision of Services by the Company, and as indicated on the Subscription Form (if applicable);
2.3. “App” means the Company application available on the Google Play Store or Apple App Store, and on which application you can access your end consumer data;
2.4. “By-laws” means the relevant water laws promulgated by the municipality that has jurisdiction over the territory as determined by the location of the Water Meter;
2.5. “Company” means Atom Operations Proprietary Limited, registration number: 2018/289869/07, a private company with limited liability, duly incorporated in terms of the laws of the Republic of South Africa;
2.6. “Effective Date” means the effective date as indicated on the Subscription Form;
2.7. “Equipment” means the data transmitter as described in clause 6;
2.8. “Monthly Fee” means the monthly fee incurred by yourself for the provision of Services by the Company, and as indicated on the Subscription Form (if applicable);
2.9. “Party” means either you or the Company, as the context indicates;
2.10. “Parties” means collectively you and the Company;
2.11. “Platform” means the web-based platform, owned and operated by the Company, and on which platform your consumer data shall be available;
2.12. “POPIA” means the Protection of Personal Information Act 4 of 2013, as amended from time to time;
2.13. “Privacy Policy” means the Company’s privacy policy;
2.14. “Water Meter” means any water meter constructed to a South African National Standards standard by a South African National Accreditation System accredited body;
2.15. “Services” shall have the meaning assigned to it in clause 7;
2.16. “Subscription Fee” means the Annual Fee or Monthly Fee, as applicable to your subscription;
2.17. “Subscription Form” means the subscription form completed by yourself for the provision of Services, and which forms part of the Agreement;
2.18. “Signature Date” means the date that the Agreement is signed by the last Party in time, and for the avoidance of any doubt, the date shall be the date that the last document element of the Agreement, being either the Subscription Form, the terms and conditions as defined herein, the Debit Order Form (if applicable), or the Privacy Policy is signed by the last Party in time;
2.19. “VAT” means Value Added Tax;
2.20. “Water Services Authority” means any municipality, including a district or rural council, as defined in the Local Government Transition Act 209 of 1993, and who is responsible for ensuring access to water services in terms of the Water Services Act 108 of 1997; and
2.21. “You” means the person or legal entity whose particulars appear on the subscription, including their lawful successor and/or authorised representative. You and you’re shall bear the corresponding meaning.
3. INTERPRETATION
3.1. In this Agreement, unless otherwise indicated:
3.3.1. The singular shall import and include the plural and vice versa.
3.3.2. Words indicating one gender shall import and include other genders.
3.3.3. Words indicating natural persons shall import and include juristic persons.
3.3.4. Clause headings are for reference only, and shall have no bearing on the meaning of this Agreement.
3.3.5. Where any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day.
4. COMMENCEMENT DATE AND DURATION
4.1. You shall be bound to these terms and conditions from either the Effective Date or the Signature Date, whichever is first in time.
4.2. This Agreement shall be for a minimum period of 2 (two) years (“Initial Period”), unless cancelled by either Party by giving the other Party 3 (three) months’ written notice.
4.3. If a Monthly Fee is applicable to your subscription, this Agreement shall automatically renew for successive 1 (one) month periods after the Initial Period, until cancelled by either Party by giving the other Party 30 (thirty) days’ written notice.
4.4. If an Annual Fee is applicable to your subscription, this Agreement shall automatically renew for successive 1 (one) year periods after the Initial Period, until cancelled by either Party by giving the other Party 3 (three) months’ written notice.
5. SERVICE FEES AND PAYMENT TERMS
5.1. You shall pay the Subscription Fees, which fees are inclusive of VAT, and which fees shall be paid in accordance with this Agreement.
5.2. Billing of the Subscription Fees shall be subject to the selling date of the Equipment, and shall thereafter commence on the first day of every month.
5.3. For the avoidance of any doubt, either the Annual Fee will be applicable to your subscription, which fee must be paid by yourself to the Company on an annual basis, or the Monthly Fee will be applicable to your subscription, which fee must be paid by yourself to the Company on a monthly basis. The applicable fee is indicated on the Subscription Form.
5.4. Should a Monthly Fee be applicable to your subscription, you will be liable to pay 80% of the Monthly Fee from the date of delivery until 95% of the Equipment is transmitting data, which will be determined by the Company, whereafter you shall be liable to pay 100% of the Monthly fee without any deduction or set-off.
5.5. You shall pay the Subscription Fee to the Company, and in respect of the Services, which Subscription Fee shall be in respect of the provision of the Services by the Company to you.
5.6. You shall elect one of the following payment options for the Subscription Fee to the Company:
5.6.1. Electronic funds transfer (“EFT”); or
5.6.2. Debit order.
5.7. The Subscription Fee shall be sent to your elected billing email address in the form of a tax invoice.
5.8. Should you elect the debit order payment option:
5.8.1. You shall complete the Debit Order Form, which form shall form part of the Agreement;
5.8.2. All debit order payments shall be made in advance on the first day of each month, or annual period, whichever is applicable, and be made by way of direct debit order against your bank account, which details shall be provided by you on the Debit Order Form.
5.9. Should the debit order fail, the Company has the right to use any legal means necessary, including early debit order facilities to recover any and all amounts owing.
5.10. Should you elect the EFT option, the Subscription Fee shall be payable within 5 (five) days from the date stipulated for payment in the tax invoice. Payment must be made to the account indicated on the tax invoice.
5.11. The Company has the right to change the debit order date on reasonable notice to you.
5.12 Should you fail to make timeous payment of either the Subscription Fee, the Company may elect any number or all of the following:
5.12.1. Oblige you to perform all your obligations in terms of this Agreement;
5.12.2. Charge interest on the overdue amount at the prime interest rate plus 2% (two percent), compounded monthly, and which is calculated from the due date of payment to the date of actual payment to the Company of all monies due at such date;
5.12.3. Take such action as provided for in clause 12;
5.12.4. Inform any credit bureau of your default, after giving you 20 (twenty) days’ written notice of the Company’s intention of doing so;
5.12.5. Suspend the Services; and/or
5.12.6. Hand over your account to external debt collection agencies or attorneys for collection.
5.13. The Company shall give you 5 (five) days’ notice before the suspension of the Services in accordance with clause 5.12.5.
6. EQUIPMENT
6.1. The Equipment supplied to you is a data transmitter that is a battery-powered retrofittable transmitter which converts your Water Meter into a smart automatic reading meter.
6.2. Your data, as measured by your Water Meter, is relayed via the transmitter, and your consumer data then becomes accessible on the Platform, and the end consumer data becomes accessible on the App.
7. SERVICES
7.1. You shall be provided with the following services:
7.1.1. Installation of the data transmitter (however installation costs may apply and shall be at the sole discretion of the Company);
7.1.2. Access to your data on the Platform and App;
7.1.3. You shall, through the Platform and App, be provided with access to hourly, daily, weekly or hourly and/or daily and/or weekly and/or monthly updates on your water consumption, as determined by your Water Meter.
8. SUSPENSION OF SERVICES
8.1. Services may be suspended by ceasing your access to the Platform, if:
8.1.1. the Platform fails, or becomes temporarily unavailable due to any modification, upgrade, maintenance or force majeure event;
8.1.2. you fail to comply with any of the terms and conditions of this Agreement;
8.1.3. you use the Services or Equipment unlawfully, or if you unlawfully tamper with or modify your Equipment.
8.2. You will continue to be liable for payment of your Subscription Fee during any suspension period.
8.3. The Company is entitled to charge you a reasonable administration fee if Services are suspended and have to be reconnected due to the reasons set out in clauses 8.1.2 and 8.1.3 above.
9. EXTENDED BENEFICIARIES
9.1. You acknowledge and accept that, in the case of group housing schemes, you are acting in your capacity as Trustee of, or service provider to, the Homeowners Association.
9.2. The Parties to this Agreement understand and accept that this Agreement is entered into by you in favour of and for the benefit of the homeowners association.
9.3. Anything to the contrary in this Agreement notwithstanding, you shall remain a party to this Agreement for the duration of the Agreement and you shall remain liable for the payment of any and Monthly Fees or Annual Fees, whichever is applicable.
10. WARRANTIES
10.1. You warrant that your use of water has been authorised by the Water Services Authority and that your Water Meter has been supplied and installed by the Water Services authority or otherwise authorised by the Water Services Authority.
11. DEFECTIVE METERS
11.1. A Water Meter shall be deemed to be defective in accordance with the relevant municipal by-laws regulating the Water Meter.
11.2. Where a Water Meter is found to be defective, it will be assumed that the installation of the data transmitter was not the cause of the Water Meter becoming defective until otherwise proven by you.
11.3. For the purposes of this Agreement, you are required to ensure that your Water Meter is in good working order to ensure that the consumer data received is accurate and that the Services provided to you in terms of this Agreement are received as intended.
12. BREACH
12.1. If either the Company or you breach any provision of this Agreement and remain in such breach for seven (7) days after written notice has been given to the defaulting party to remedy such breach, the aggrieving party shall be entitled, without prejudice to rights or remedies they may have under this Agreement or in law, to either immediately terminate this Agreement or claim specific performance, whether due for performance or not, and without prejudice to the right to claim damages.
13. CANCELLATION
13.1. Any cancellation during the Initial Period, except cancellation as a result of breach, shall take place on 3 (three) months’ written notice by the Party wishing to cancel the agreement.
13.2. If you cancel the agreement in accordance with clause 13.1, the Company shall be entitled to charge a penalty fee against you, which penalty fee shall be the total Monthly Fees or Annual Fees, whichever is applicable, and for the remainder of the Initial Period after the period of the cancellation notice ends.
13.3. Where this Agreement has lapsed into an indefinite agreement, and if Monthly Fees are applicable to your subscription, either Party may cancel the Agreement on 30 (thirty) days’ written notice.
13.4 Where this Agreement has lapsed into an indefinite agreement, and if Annual Fees are applicable to your subscription, either Party may cancel the Agreement on 3 (three) months’ written notice.
13.5. Should Annual Fees be applicable to your subscription, and should you cancel the Agreement, you shall forfeit the total Annual Fee paid for that specific year.
14. LIMITATION OF LIABILITY
14.1. The Company will not be liable to you for any liability, loss, damage, expense and/or cost whatsoever, whether direct, indirect and/or of a consequential nature, including any loss of income, loss of profit and/or loss of anticipated savings suffered by you due to:
14.1.1. any reasonable suspension, termination or temporary unavailability of the Services;
14.1.2. any unavoidable delay in the performance of Services; or
14.1.3. any damage or fault to any Equipment.
14.2. For the avoidance of any doubt, the Company will not be obliged to reimburse you for any of your losses incurred as a result of any service interruptions and/or unavailability contemplated in this clause.
15. INTELLECTUAL PROPERTY RIGHTS
15.1. Nothing in this Agreement is a licence or transfer to you of any of the Company’s rights including copyright and/or trademarks relating to the Company’s name, the Services, the Equipment, the Platform and the App.
16. PRIVACY
16.1. By entering into this Agreement, you understand that the Company is required to comply with the provisions of POPIA to ensure the privacy and confidentiality of your Personal Information, as defined in POPIA.
16.2. Accordingly, you confirm that you understand and agree that:
16.2.1. You voluntarily disclose and provide your Personal Information to the Company;
16.2.2. You give consent and authorise the Company to collect, use, process, share and/or transfer your Personal Information in accordance with Company’s Privacy Policy, which policy has been provided to you.
16.2.3. You agree to immediately inform the Company in writing if there is any change of whatsoever nature in any of your Personal Information including your physical address, previously supplied to the Company;
16.2.4. You agree to be bound by the conditions of the Privacy Policy, which you have read, understood and agreed to as part of the Agreement.
16.3. In order to fulfil the obligations set out in this Agreement, the Company will process your Personal Information. Such processing may include sharing Personal Information with third parties, but only to the extent necessary and in order to provide Services to you.
17. FORCE MAJEURE
17.1. Neither Party may be held liable for any default and/or delay in the performance of its obligations under this Agreement, if such default and/or delay is caused by any act of God, war or civil disturbance, court order, legislative constraint, strikes, labour disputes, lockouts, or any delay in any performance due from the other Party, or any other circumstance beyond the reasonable control, including without limitation, failures and fluctuations in electrical power, water or communications including communications through a network and its infrastructure as referred to herein.
18. NON-VARIATION
18.1. The Company reserves the right, in its sole discretion, to vary the above terms and conditions. The Company shall notify you of any such variation in writing, and which amendments will come into effect 30 (thirty) days after dispatch of such notification by the Company.
18.2. You agree that the provisions of this clause are fair and reasonable.
18.3. Notwithstanding the above, in the event that there is a variation of the Monthly Fees or Annual Fees, same shall be set out in writing and signed by both Parties. Such amendment shall be effective from date of signature by both Parties of the amendment and shall remain effective for the duration of the Agreement, subject to any further amendments.
19. SEVERABILITY
19.1. If any provision of this Agreement is deemed or found to be void, unlawful or invalid, such provision shall be severed from this Agreement, and which shall not affect the remaining provisions of this Agreement and the remaining provisions shall remain valid and binding on all Parties.
20. GOVERNING LAW
20.1. This Agreement shall be governed by the laws of the Republic of South Africa, and shall further be subject to the jurisdiction of the courts of the Republic of South Africa.
21. NON-REPRESENTATION
21.1. You agree that neither the Company, nor any of its authorised representatives, has made any representations or given any warranties other than those expressly contained in this Agreement.
22. NO RELAXATION
22.1. Any relaxation or indulgence or extension of time granted by the Company to you will not constitute nor be deemed to be a novation or waiver of any of the Company’s rights against you.
23. RULES OF CONSTRUCTION
23.1. You hereby agree that the rule of construction that an agreement shall be interpreted against the Party who drafted the Agreement in a case of ambiguity shall not apply in respect of this Agreement.
