Terms and Conditions – Dark Water Ops

Annexure “A” – Minimum Terms of Use for ABALONE ANTI-POACHING UNIT (AAPU) PTY) LTD
trading as DARK WATER OPS

TERMS AND CONDITIONS FOR THE USE OF THE ABALONE ANTI-POACHING UNIT (AAPU) (PTY) LTD trading as DARK WATER OPS MOBILE APPLICATION (“THE Dark Water Panic APP”) AND THE SERVICES OFFERED VIA THE Dark Water Panic APP BY FIRST TECHNOLOGY SECURITY (PTY) LTD T/A SECURA AND/OR Dark Water Ops INSURANCE COMPANY LIMITED

Introduction
1.1. First Technology Security (Pty) Ltd t/a Secura (“Secura”) and Abalone Anti-Poaching Unit (Pty) Ltd (“Dark Water Ops “) (collectively referred to as “we”, “us” or “our”) have entered into a collaboration whereby Dark Water Ops shall have access to Secura’ s network of sub-contracted service providers in order to provided panic assistance services (“the Services”) through the Dark Water Panic App to anyone who has registered for the Services.
1.2. We are committed to providing services of the highest standard to all individual customers (“the User”, “the recipient”, “you” or “your”) who accesses the Services provided through the Dark Water Panic App by third-party armed response service providers coordinated by Secura.
1.3. The terms and conditions of use contained below (“the Terms”) shall govern your use of the Dark Water Panic App as well as any other person using your account through you together with all services associated therewith as well as the relationship between Users, Secura, and/or DARK WATER OPS.
1.4. By accessing and using the Dark Water Panic App, the User agrees to be bound by the Terms. If you do not wish to be bound by the Terms, you may not access, display, use, or download the Dark Water Panic App and your election to access display, use or download the Dark Water Panic App shall constitute your acceptance of the Terms.
1.5. We shall, from time to time at our sole election, be entitled to modify these Terms and your continued use of the Dark Water Panic App, will be subject to the terms and conditions in force at the time of use. Accordingly, we kindly request that you review these Terms periodically as your continued access or use of the Dark Water Panic App shall be deemed to signify your acceptance of the amended Terms.
1.6. We reserve the right at any time to change or discontinue, without notice, any aspect, feature or service offered by way of the Dark Water Panic App.
1.7. The Terms shall apply to Users, who download the Dark Water Panic App directly from an App store with the intention of utilising the Dark Water Panic App and associated Services for their personal, non-commercial use.
Agreement
2.1. These Terms govern all aspects of your access to and use of the Dark Water Panic App as well as any associated applications, websites, content, products and/or services.
2.2. Your election to access and use the Dark Water Panic App and the Services provided through or via the Dark Water Panic App creates a binding contractual relationship between you and us, governed in all respects by these Terms (as may be amended from time to time).
Use of the DARK WATER OPS Emergency App
3.1. Dark Water Ops (and/or its licensors) supplies a technology-based platform which allows users to download the Dark Water Panic App onto their mobile device, Internet of Things “IoT” device and/or computer (“the Device”). Once downloaded, users are granted access, through a virtual panic button, to armed response services provided by independent third-party armed response service providers (“Responders”) who might be nearest to the user at the time of the activation (“the Services”).
3.2. The scope of the Services are stipulated by the Dark Water Panic App, and may only be accessible within a specified geographic area, for example, Fourways. When you access the Services through the Dark Water Panic App, you accept that Dark Water Ops shall only provide responses in that applicable area and shall not be obliged to provide responses in any other geographical area. You expressly acknowledge and agree that the Dark Water Panic App will be subject to certain geographical limitations and it is your responsibility to familiarize yourself with the geographical areas in which you will be able to access the Services, and we will not be liable to you for any loss or damage you may suffer in this regard.
3.3. The User acknowledges that Dark Water Ops will be providing the Services on the Dark Water Panic App in circumstances which by its very nature, may be dangerous and potentially life threatening to the User. The Services are in no way intended to limit or reduce the User’s risk of violent crime or other such threat and should in no way be viewed as a preventative measure. The Services are intended to support, if possible, Users who might become the victims of criminal activity by providing such Users with access to Responders in the User’s vicinity.
3.4. Further to the above, as will be dealt with more fully below, Dark Water Ops, Secura, its directors, employees, partners and financiers accept no responsibility or liability for any malady, incident harm and/or loss that may occur or be suffered by a User while using the Dark Water Panic App.
3.5. You agree that in using the Dark Water Panic App, you will comply with the following:
3.5.1. Without separate written permission from Dark Water Ops, in advance, you may not:
reuse or “scrape” Dark Water Ops ’s data for use in another service or website;3.5.1.1.
attempt to circumvent any controls or limitations on the Dark Water Panic App and/or its licensors and/or the Dark Water Panic App has placed on User’s ability to access the Dark Water Panic App or information on the Services, including by means of robot exclusion headers;3.5.1.2.
use any bots, scrapers, brute-force tools, or other automated methods for accessing, slowing down, or disabling the Services or otherwise interfering with the proper function of the Dark Water Panic App;3.5.1.3.
3.5.1.4. frame, “mirror”, or otherwise incorporate any part of the Services into any other application, website or service.
3.5.2. In addition to the aforegoing, you may not use the Dark Water Panic App, without written consent and/or prior arrangement, for commercial purposes including but not limited to, using the Services to provide security and/or armed response services to the public at a mark-up. The Services are intended to be provided for the personal non-commercial use of the Users only and for no other purpose.
3.6. No information whether oral or written or digitally obtained or displayed, obtained by the User from Dark Water Ops, Secura, and/or the Dark Water Panic App will create or be deemed to create any warranty whatsoever in relation to such information, its use, intended use of the Services.
Fair Usage
4.1. The provision of Responses is a labour intensive process that is limited by the number of Responders available at any time. We wish to give all Users access to Responders in emergency situations and in order to do so, we may implement a fair usage policy from time to time.
4.2. By using the Dark Water Panic App, you expressly agree to Dark Water Ops’ s fair usage policy as notified by us to you and hereby indemnify Secura and Dark Water Ops against any harm, injury, death, loss, or amage of whatsoever nature and howsoever arising should Dark Water Ops or Secura refuse a response activated by you through the Dark Water Panic App.
Third Party Responders
5.1. As part of the Services, Dark Water Ops, through Secura, has sourced a network of third-party Responders (defined in these Terms as “the Responders”) including independent armed response service providers who have been sub-contracted by Secura to provide their services to the Users, on an ad hoc basis using the Dark Water Panic App.
5.2. Whilst Dark Water Ops will use its best efforts to ensure that all Responders are PSIRA compliant and uphold the highest standards of care in the exercise of their functions, you hereby acknowledge that Secura (does not itself provide any armed response services and relies upon its Responder network who are not employees or agents of Secura (and operate as independent contractors utilising Dark Water Ops ’s (or its licensor’s) platform to accept ad hoc panic activations from time to time. We accept no liability of whatsoever nature or howsoever arising from any act or omission of a responder or anyone associated therewith and agree only to facilitate access to such Responder and nothing more or less.
5.3. The provisions of armed response services shall at all times be dependent upon the availability and proximity of Responders. By using the Dark Water Panic App, you hereby acknowledge and agree that we, our directors, employees, and financiers have no control over whether a Responder accepts a panic activation or not and accordingly, we accept no liability and/or responsibility for their conduct including but not limited to any act or omission of a Responder in either accepting or declining a request for armed response received via the Dark Water Panic App.
5.4. For the sake of clarity, and to avoid any confusion, we are not able to guarantee Responder response times, access to Responders and/or the availability of Responders at any given time and do not accept any liability or responsibility of whatsoever nature and howsoever arising for a Responder being unavailable to respond and/or failing to respond to a request for a Response via the Dark Water Panic App.
License
6.1. Subject to your compliance with these Terms, Dark Water Ops grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to:
6.1.1. Access and use the Dark Water Panic App on your chosen Device/s for the sole purpose of accessing the Services; and
6.1.2. Access and use any content, information and related materials that may be made available by Dark Water Ops through the Dark Water Panic App and/or the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Dark Water Ops and its licensors.
Payment
7.1. All payments in terms of or arising out of your use of the Dark Water Panic App and/or the Services, shall be subject to and in accordance with the costs as stipulated on the Dark Water Panic App.
7.2. The prices quoted by Dark Water Ops will be subject to fluctuation without prior notice to the User and will depend on inter alia the availability and proximity of Responders, the area in which the Dark Water Panic App is used, the number of Users using the Dark Water Panic App at any given time, time of day and/or time of the year, in accordance with a standard pricing scale.
Circumstances beyond the Parties Control
8.1. If Secura, Dark Water Ops and/or any third-party Responder is prevented or restricted, directly or indirectly, from carrying out all or any of its obligations under this Agreement by reason of strike, power failure, network failure, internet downage, fibre cable downage, mobile network downage, server failure, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of the Party labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relived of its obligations under this Agreement during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always, save in the event of an unannounced municipal power failure or power failure at the Premises, that written notice shall forthwith be given of any such inability to perform by the affected Party.
8.2. Any Party invoking the abovementioned provisions, shall upon termination of an event giving rise thereto, forthwith give written notice of such ending to the other Parties.
Copyright, Intellectual Property, and Trademarks
9.1. The Service and/or the Dark Water Panic App and all information, data materials and other content made available through the Dark Water Panic App, including, but not limited to, the Dark Water Panic App name, website domain name, the Dark Water Ops logo(s) and all designs, text, documents, graphics, software including but not limited to both source and object code, sound files, other files and the selection and arrangement thereof are the proprietary property of Dark Water Ops and as the case may be, its associates, suppliers and licensors and are protected by South African and international intellectual property laws. Dark Water Ops and its associates, suppliers and licensors reserve all right, title, and interest, including all intellectual property rights, in and to all such information, data, and other content and materials.
9.2. Dark Water Ops and the Dark Water Ops logo(s) are trademarks of Dark Water Ops or one of its associated companies, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Dark Water Ops or the relevant company owning the said trademark. You understand that reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
9.3. You may access, display, download and otherwise use the current and future content of the Dark Water Panic App for your personal, non-commercial and information purposes only. Any other use, including reproduction other than as aforesaid, amendment/modification or distribution, without our prior written consent, is strictly prohibited and constitutes an unlawful infringement of our intellectual property rights which the User acknowledges has the propensity to cause Dark Water Ops, and/or its licensors, and/or Secura and/or their associated companies’ damage.
Verification
10.1. The use of the Dark Water Panic App and access to the Services, may require that a User profile is created which contains your specific information. You must be at least 18 years of age, to create an Dark Water Panic App profile which will require you to submit personal information, including but not limited to your name, address, mobile phone number and age. By using and continuing to use the Dark Water Panic App you agree to maintain accurate, complete, and up-to-date information insofar as your profile is concerned. Your failure to maintain an accurate, complete, and up-to-date profile, may result in you losing access to the Services. You are responsible for all activity that occurs on or through your profile and you agree to maintain the security and secrecy of your profile including your secret password at all times.
10.2. The User hereby acknowledges and agrees that Dark Water Ops shall be entitled but not obliged to establish the authenticity of any communication transmitted to it by way of the Internet or through the Dark Water Panic App which purports to emanate from such User.
10.3. The User agrees that all instructions, consents, commitments, and any other communications which purport to emanate from the User and which are sent to Dark Water Ops by way of the internet or through the App and/or the Dark Water Panic App and which may (as a result of, inter alia, interception, equipment malfunction, the distortion of communication links or any other reason whatsoever) be different from the details actually sent or given, or may not have been given by the User at all, shall be deemed to have been given by the User in the form actually received by Dark Water Ops and the User will be bound by such details with no liability whatsoever attaching to Dark Water Ops in regard thereto.
10.4. The User waives any rights the User may have or obtain against Dark Water Ops arising directly or indirectly from any loss or damage of whatsoever nature which the User may suffer as a result of the fact that Dark Water Ops acts on the User’s instructions or instructions purported to emanate from the User via the Dark Water Panic App.
10.5. The User agrees to and hereby indemnifies and holds Dark Water Ops harmless against all an any claims, liability, losses, costs, fines, damages and expenses incurred (whether directly or indirectly) by the User arising as a result of the fact that Dark Water Ops has acted on the User’s instructions or instructions which purport to emanate from the User via the Dark Water Panic App.
System Availability
11.1. Dark Water Ops shall always use its reasonable best endeavours to keep the system available and maintain full system functionality . Due to a number of possible unforeseen circumstances, including but in no way limited to connectivity, mobile network connection, server availability and/or failure, internet connection and/or failure electrical connection, software functionality, hardware functionality, virus, general network failure, and/or third-party Responder availability, it may not always be possible for Dark Water Ops to maintain perpetual system availability and/or availability of the Service and/or the Dark Water Panic App. Should, for any reason whatsoever, Dark Water Ops be unable to maintain the availability of the Services and/or the Dark Water Panic App, the User agrees that Dark Water Ops shall not be liable to the User or any other person in respect of any loss or damage arising from the unavailability of, or interruption in, the Services and/or the Dark Water Panic App.
11.2. Dark Water Ops reserves the right to discontinue providing the Services and/or the Dark Water Panic App with reasonable prior notice to the User.
Warranties, disclaimer, and exclusion of liability
12.1. The User warrants that every instruction and all information given by the User to Dark Water Ops shall be accurate, true and in all respects correct. Dark Water Ops makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding, without limitation, the Dark Water Panic App, the Services, the qualification, professionalism, competence, and suitability of the Responders or any one of them, the website, its content and/or accuracy thereof, any third-party services provided via the Dark Water Panic App or the suitability of any of the Services for a particular purpose or the effectiveness of any security or encryption facilities.
12.2. Dark Water Ops does not warrant that the functionality provided by the Dark Water Panic App will be uninterrupted or error free, or that the Dark Water Panic App or the server that makes it available are free from viruses or other harmful components.
12.3. We, our directors, employees, agents or representatives shall not be responsible for any loss, liability, damage (whether direct, indirect and/or consequential) or expense of any nature whatsoever or howsoever arising which may be suffered by the User, the recipient of any Services or any third party arising from or as a result of the use of the Dark Water Panic App or the Services, or as a result of or which may be attributable (directly or indirectly) to the User’s use or reliance on the Services, including but not limited to:
12.3.1. Any information provided thereon;
12.3.2. The Services provided by Dark Water Ops;
12.3.3. Third party services provided via the Dark Water Panic App including that provided by the Responders;
12.3.4. Any viruses that may infect your device or other property on account of your access to and/or use of the Dark Water Panic App;
12.3.5. The efficacy of any security or encryption facilities; or
12.3.6. The internet.
12.4. By downloading, utilising, accessing and operating the Dark Water Panic App, you hereby expressly acknowledge and agree:
12.4.1. The Services provided by Dark Water Ops, its licensors, Secura and/or the third-party Responders forming part of the Responder network are provided as a deterrent to the commission of criminal activity and are not intended as a preventative measure in respect of such activity;
12.4.2. The Services are not intended to constitute or replace an insurance policy and it is hereby recorded that no warranty of whatsoever nature is provided by Dark Water Ops in relation to any services rendered by Dark Water Ops and/or its licensors and/or Secura and/or third-party Responder to the recipient.
12.4.3. We will not be held liable for any act or omission whether such act or omission is negligent or grossly negligent of any Responder within the service provider network or any of their staff, employees, agents or associates of us and/or the Responders or any of one of them and the recipient hereby indemnifies us against any direct, indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, revenue or any other damage of whatsoever nature incurred by you or anyone using the Dark Water Panic App through your account, or any third-party, arising from or in connection with any contract or relationship between you and us.
12.4.4. In the event that it is found by a tribunal, or arbitrator court, that we are liable in law to you or any third-party arising from the Dark Water Panic App and/or any of the Services and/or any of the third-party Responders within the service provider network’s conduct, it is expressly recorded that such liability shall be limited to the total value of the Services utilised by you over the preceding 12 (twelve) month period prior to the date such claim is instituted or an amount of R100 000.00 (one hundred thousand rand) whichever amount is lesser.
12.5. The parties agree, that the limitation of liability contained in these Terms is an irrevocable limitation and shall take precedence over any other indemnity or limitation contained in any other agreement concluded between the parties.
12.6. It is hereby recorded and agreed that we accept no responsibility whatsoever to you or any of its Users including but not limited to Users using the Dark Water Panic App, for the functions of the Dark Water Panic App or the integration thereof including but not limited to:
12.6.1. App functionality;
12.6.2. Any malfunction in the Dark Water Panic App;
12.6.3. Any malfunction in the User’s app or device;
12.6.4. Any malfunction in the Responder’s app or device; and
12.6.5. Any malfunction in relation to integration.
Termination
13.1. These Terms will continue to apply until either the User or Dark Water Ops terminates the Services or access to the Dark Water Panic App to the individual User. If the User has connected to the Service or accessed the Dark Water Panic App using a mobile phone you may terminate the Services at any time by deleting the Dark Water Panic App from your mobile phone, de-activating your Dark Water Ops Account and no longer using the Service and/or the Dark Water Panic App or by sending written notice to Dark Water Ops.
13.2. Dark Water Ops may suspend a User’s access to the Service and/or suspend a User’s access to the Dark Water Panic App and/or terminate the User’s continued use of the App at any time, with notice to you:
13.2.1. If the User is in breach of any other provision of these Terms or if you make unauthorized use of the Service and/or the Dark Water Panic App;
13.2.2. if Dark Water Ops elects at its discretion to cease providing access to the Service and/or the Dark Water Panic App in the geographical location where the User resides or from where the User’s attempting to access the Service and/or the Dark Water Panic App; or
13.2.3. in other reasonable circumstances as determined by Dark Water Ops at its discretion.
13.3. The provisions of these Terms that are intended by their nature to survive the termination of the Services and/or the Dark Water Panic App will survive the termination thereof.
Updates
14.1. The User accepts and agrees, by using the Dark Water Panic App, that Dark Water Ops has no obligation to maintain, support, upgrade, or update a Responder’s app, or to provide all or any specific content through the Dark Water Panic App. The User further understands and agrees that we may access, collect, and use information, which may include personally identifiable information, which your mobile device automatically makes available to the Dark Water Panic App, consistent with our Privacy Policy a copy of which is available on written request.
Arbitration
15.1. This clause 15 is a separate, divisible agreement from the rest of the Terms and shall-
15.1.1. not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Terms and not to this clause 15. Dark Water Ops and the User intend that any such issue shall be subject to arbitration in Terms of this clause 15; and
15.1.2. remain in effect subsequent to the termination of the User’s use of the Dark Water Panic App and/or cessation of the Service.
15.2. Save to the extent to the contrary provided for in these Terms any dispute arising out of or in connection with the User’s use of the Dark Water Panic App or arising from these Terms including, without limitation, any dispute concerning-
15.2.1. the existence of these Terms apart from this clause 15;
15.2.2. the interpretation and effect of these Terms;
15.2.3. the Parties’ respective rights or obligation under these Terms;
15.2.4. the breach, termination or cancellation of these Terms or any matter arising out of such breach, termination or cancellation; and/or
15.2.5. damages in contract, in delict, compensation for unjust enrichment or any other claim, whether or not the rest of these Terms apart from this clause 15, are valid and enforceable;
15.2.6. shall be decided by arbitration as set out in this clause 15.
15.3. Secura, its licensors, Dark Water Ops and the User (“the Parties”) or (“Party”) as the context may indicate shall agree on the arbitrator. If agreement is not reached within 5 (five) business days after any Party in writing calls for agreement, the arbitrator shall be a practicing senior counsel who is a member of the Johannesburg Bar Council of at least 15 (fifteen) years’ standing, nominated at the request of any Party by the chairman for the time being of the Johannesburg Bar Council.
15.4. The request to nominate an arbitrator shall be in writing outlining the claim and any counterclaim of which the Party concerned is aware and, if desired, suggesting suitable nominees for appointment, and a copy shall be furnished to the other Parties who may, within 5 (five) business days, submit written comments on the request to the addressor of the request.
15.5. The arbitration shall be held in Johannesburg and the Parties shall endeavour to ensure that it is completed within 90 (ninety) working days after notice requiring the claim to be referred to arbitration is given.
15.6. The proceedings in the arbitration shall as far as practicable take place in private and be kept confidential.
15.7. The arbitration shall be governed by the Arbitration Act, No. 42 of 1965, as amended, or any replacement enactment and shall take place in accordance with the Uniform Rules of the High Court of the Republic of South Africa, or such other rules as the arbitrator may deem appropriate.
15.8. The decision resulting from such arbitration, shall absent a manifest error, be final and binding upon the Parties, and may be made an order of any court of competent jurisdiction.
15.9. This clause 15 shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
15.10. Notice of a dispute or pending arbitration proceedings shall not entitle any Party to suspend compliance with any of its obligations in terms of these Terms.
15.11. The costs of the arbitrator and the venue shall be borne by the Parties on an equal basis until the outcome of the arbitration and an award relating to costs is made.
Ending a Session
16.1. You must leave the Dark Water Panic App once you have finished using the Services. If you do not do this, unauthorised transactions may result, for which you will be liable, Dark Water Ops accepts no responsibility or liability for any circumstance where the User fails, and/or neglected to end a session on the Dark Water Panic App.
Miscellaneous
17.1. These Terms shall be governed in all respects by and construed in accordance with the laws of the Republic of South Africa, and any dispute arising from these terms and conditions shall be subject to arbitration in accordance with clause 15 above.
17.2. These Terms constitute the whole agreement between you and us as to the subject matter hereof and no agreement, representations or warranties between the User and Dark Water Ops other than those set out herein shall be binding on you or us.
17.3. The agreement and undertakings of the Parties contained in these Terms shall each be construed as an agreement and undertaking independent of any provision of the terms. Dark Water Ops and the User hereby expressly agree that it is not the intention of any Party to violate any public policy, statutory or common law, and that if any sentence paragraph, clause or combination of the same is in violation of the law of the Republic of South Africa, such sentence, paragraph, clause or combination of the same alone shall be void in the jurisdiction where it is unlawful, and the remainder of such clause and these Terms shall remain binding upon the Parties thereto.
17.4. Each Party acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of this agreement and that it has either taken such independent legal advice or dispensed with the necessity of doing so.
17.5. The User shall not be entitled to cede any of its rights or delegate any of its obligations under this agreement to any other party without our prior written consent having first been obtained.
17.6. Secura and Dark Water Ops shall, at any time, in their sole discretion, be entitled to cede all or any of their rights in terms of these Terms to any third party without prior notice to you. This may in no way be construed as any release of your obligations in terms of these Terms.