Note about important provisions
LIMITATIONS OF RISK, LEGAL RESPONSIBILITIES AND LIABILITY. Clauses 2.3, 2.6, 4.1, 4.2, 10, 11 and 12 are important because they limit and exclude obligations, liabilities and legal responsibilities that we and other persons or entities may otherwise have to you. As a result of these clauses, your rights and remedies against us and these other persons and entities are limited and excluded. These clauses also limit and exclude your right to recover or make claims for losses, damages, liability or harm you or others may suffer.
ASSUMPTIONS OF RISK, LEGAL RESPONSIBILITIES AND LIABILITY BY YOU. Clauses 2.4, 2.6, 2.8, 3.8 and 13 are important because you take on risk, legal responsibilities and liability. As a result of these clauses, you may also be responsible for claims and other amounts. You will also be responsible for, and you accept, various risks, damages, harm, and injury which may be suffered by you and others for what is stated in these clauses.
ACKNOWLEDGEMENTS OF FACT BY YOU. Clauses 2.4, 2.8 and 9 are important because they each contain statements which are acknowledgements of fact by you. You will not be able to deny that the statements aren’t true. We may take action against you and may have claims against you as a result of these statements.
INDEMNITIES BY YOU. Clause 13 requires you to indemnify (hold harmless) 4Sight Holdings Limited and other persons or entities within its Group of companies against claims, loss, damages, and harm that may be suffered by us and other persons or entities as a result of the events set out in clause 14. You also required to indemnify us and other persons and entities against claims for loss, damages, and harm that may be made by any person or entity as a result of the events set out in clause 14. This places various risks, liabilities, obligations and legal responsibilities on you and you will be responsible and liable for the payment of the value of the claims, loss, damages, and harm that may be suffered or claimed.
1.1 4Sight Holdings Limited (“4SIGHT” or “we” or “us” or “our”) makes available applications, software, products, and services (collectively the “Service”) through which users can capture, contact traces and generate real-time reports on all persons entering and exiting the workplace for symptoms of COVID-19 and other materials which we make available on the Service (“Content”) by using a device which is capable of connecting to the internet, such as computers, mobile phones and tablets or any other device, as the case may be (“Access Device”).
2. HOW TO DOWNLOAD AND ACCESS THE Service WITH YOUR ACCESS DEVICE
2.1 To install, download and access the Service and the Content you must have an Access Device that is able to connect to the internet and download the Content.
2.2 The Access Device must meet the minimum technical specifications specified by us or and also those set out on the Apple App Store, the Google Play store and any other distribution channel officially supported by us.
2.4 You, at your own cost, are responsible for obtaining and maintaining the Access Devices, adequate and reliable internet access from a suitable service provider, and all information technology and telecommunication facilities, equipment, services, products, software, systems, materials, applications, platforms and the like (“Technology”) needed to access the internet or to install or download the Service or the Content.
2.6 We are not responsible for any internet access charges, service provider charges and data usage charges that you may incur when downloading, installing, updating or using the Service or the Content. These charges must be paid by you or the owner of the Access Device.
2.7 If you experience problems with the Technology used by you to access and use the Service or the Content, it is your responsibility to liaise with, and attempt to resolve the problems with, 4SIGHT or your own IT and telecommunications and service providers, as the case may be.
2.8 You acknowledge and accept the risks that information transmitted through the internet or any other communication system, including a wireless communication system, is susceptible to unlawful and unauthorised access, interception, distortion and monitoring.
3. PERMITTED USE OF THE Service AND WHAT YOU ARE NOT ALLOWED TO DO
3.2 We may impose restrictions and limitations on the territories in which you can use the Service or on the Content accessible through the Service or the functionality of the Service in different territories.
3.3 We may issue instructions, manuals, guidelines and directives from time to time relating to the use, implementation, operation and security of the Service or the Content. You must comply with these instructions, manuals, guidelines and directives.
3.4 You must notify us immediately if you suspect or discover any actual, threatened or suspected unauthorised use of the Service or the Content.
3.5 You must not, directly or indirectly, do any of the following things that allow anybody else to do the following things:
3.5.2 perform any action which is illegal, fraudulent or violates or infringes any rights, title or interest (including, but not limited to, any intellectual property rights) in or to the Service or the Content;
3.5.3 rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Service or Content;
3.5.4 make alterations to, or modifications of, the whole or any part of the Service or Content, or permit the Service, the Content or any part thereof to be combined with or become incorporated in, any other programs;
3.5.5 damage, disable, overburden, impair, or gain unauthorised access to the Service or the Content;
3.5.6 use the Service in a way that could damage, disable, overburden, impair or compromise our Technology or security or interfere with other users;
3.5.7 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Service, the Technology forming part of the Service or the Content or make attempt to do any such thing;
3.5.9 intentionally or negligently introduce, or permit the introduction of, any Destructive Code into the Service, the Content or the Technology utilised by 4SIGHT or you;
3.5.10 collect or harvest any information or data or attempt to decipher any transmissions from the servers or systems which run the Service;
3.5.11 infringe or misappropriate our Intellectual Property Rights or those of any third party;
3.5.12 transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Service or the Content;
3.5.13 interfere with any other person’s use and enjoyment of the Service or Content;
3.5.14 attempt to discover or reverse engineer the source code and other materials forming part of the Technology used to provide, or forming part of, the Service or the Content;
3.5.15 provide or otherwise make available the Service or the Content, in whole or in part (including any object code) in any form to any person without our prior written consent;
3.5.16 fail to comply with all technology control or export laws or regulations that apply to the Technology used or supported by the Service; or
3.5.17 receive or charge money, favours or other consideration in exchange for allowing any other person to use or access the Service or the Content.
(all of the above are referred to as the “Licence Restrictions”)
3.8 All acts and omissions of any person who uses your Access Device, or any other device on which the Service or the Content is installed or used, shall be treated as, and also be deemed to be, your acts and omissions. We can hold you liable and responsible for these acts and omissions.
4. CONTENT MUST NOT BE RELIED ON
4.1 The Content may not be accurate, complete, adequate, comprehensive or current.
4.2 As far as the law allows, 4SIGHT, and its Group of companies that constitute 4SIGHT (the “4SIGHT Partners”), and our third party providers, give no warranties or representations with respect to the Service or the Content, including in relation to the accuracy, completeness, adequacy, timeless, or comprehensiveness of the Content.
4.3 4SIGHT, the 4SIGHT Partners, and our third party providers will not be required to update the Service or the Content or to notify you or other users of Content that is inaccurate, incomplete, inadequate or out-of-date.
4.4 We, or our third party providers, may, in our sole discretion, from time to time, change, remove, update or amend the Content.
5. COLLECTION AND PROCESSING OF PERSONAL AND OTHER INFORMATION
6.2 Changes to the Service:
6.2.1 We may continuously or from time to time update the Service and the Content and we reserve the right to make changes from time to time in how we offer, provide and operate the Service.
6.2.2 We may, in our sole discretion, from time to time, change, vary or amend the form, appearance, functionality and Content of the Service, including through correction of inherent errors and changes and improvements which result in additional functions or features (“Updates”) and introducing new versions of Service incorporating new or enhanced functionality (“Upgrades”).
6.2.3 We may make Updates and Upgrades to the Service available from time to time. We/You may be required to download and install the Updates and Upgrades from the relevant app store in order to continue to use the Service and the Content.
6.2.4 Depending on the nature of the Update or Upgrade, you may not be able to use the Service until you have installed and downloaded the latest version of the Service or have upgraded the Technology or Access Device that you use to access or use the Service.
6.2.5 If you do not agree to the changes, Updates and Upgrades to the Service, you must end your use of the Service in the way set out in clause 8 below.
7. WE MAY SUSPEND THE Service AND YOUR USE OF THE SERVICE
7.1.1 we need to perform maintenance on, Upgrades or Updates to, the Service or any of the systems, software, or other Technology that we use to provide the Service;
7.1.3 4SIGHT becomes aware of any actual, threatened or suspected unauthorised use of the Service or the Content;
7.1.4 4SIGHT reasonably believes that the security of your Access Devices or the Technology used to provide or use the Service or the Content may be compromised;
7.1.5 4SIGHT becomes aware that information provided by you is false, inaccurate, invalid, incomplete or misleading;
7.1.6 we must do so to comply with the law; or
7.1.7 a court or regulator tells us to do this.
7.2 The suspension referred to in clause 7.1 will continue for so long as we reasonably believe is appropriate.
7.3 We will notify you if we suspend part or all of the Service or your use of the Service only where it is unreasonably practical for us to do so.
instances and copies of the Service and the Content in your possession, custody or control and also all instances and copies of the Service and the Content which you have installed on Access Devices.
18.104.22.168 if you breach any of your obligations in clause 3;
22.214.171.124 where we must do so to comply with law or to avoid breach another person’s rights;
126.96.36.199 where a court or regulator tells us to do so; or
8.3 Consequences of termination:
188.8.131.52 you must immediately remove and delete the Service and the Content from all Access Devices and immediately destroy all instances and copies of the Service and the Content in your possession, custody or control and (if requested by us) certify to us that you have done so; and
184.108.40.206 as far as allowed by law, you agree that we may remotely access the Access Devices and removal and delete the Service, the Content and all copies of it.
8.4 Terms which do not end:
220.127.116.11 terms and conditions where liabilities or responsibilities are excluded or limited, including amounts which you can claim;
18.104.22.168 terms and conditions where the rights you have against us, or against the 4SIGHT Partners, or against third party providers, are limited or excluded;
22.214.171.124 terms and conditions where you indemnify us, or the 4SIGHT Partners, or third party providers, or where you take on liability or responsibility for certain losses or damages that may happen;
126.96.36.199 the provisions of clause 9; and
9. INTELLECTUAL PROPERTY
9.2 You acknowledge that:
9.2.1 All rights, title, ownership and interest, including Intellectual Property Rights, in and to the Service, the Content, and the Technology used and/or displayed in connection with the Service, is owned by or licensed to us and is protected by law and remains our absolute property and that of our licensors; and
9.3 You have no right or license to access, use, modify or disseminate the source code of the Service in source-code or object-code form.
9.4 You must not use the Service in any way that constitutes a violation of any law (including intellectual property law), or an infringement or misappropriation of our rights (including Intellectual Property Rights), or the rights of our licensors or any third party.
10. THIRD PARTY SITES
11. DISCLAIMERS AND, EXCLUSION OF WARRANTIES
11.1 As far as the law allows, the Service and the Content is provided to you on an “as is” and “as available” basis and without any undertaking, representation or warranty whatsoever, whether express, implied or statutory (including any implied warranties of reliability, fitness for any particular purposes, or exclusion of errors or inaccuracies).
11.2 As far as the law allows, we make no representations and give no warranties or undertakings regarding
(i) the operation, integrity, compatibility or functionality of the Service; or
(ii) that the Service or the Content will be available or accessible at all times, be uninterrupted, timely, error-free, secure or free from Destructive Code, or meet your individual requirements.
11.3 As far as the law allows, you assume all responsibility and risk for the downloading, installation, use and results obtained from the use of the Service or the Content.
12. LIMITS AND EXCLUSIONS OF LIABILITY
12.1 As far as the law allows, we, the 4SIGHT Partners, and our third party providers will not be responsible or liable to you (and all such responsibility and liability is disclaimed by us and the 4SIGHT Partners, and our third party providers) for any loss, liability, injury or damage (whether direct, indirect, incidental, special, punitive or consequential) whatsoever resulting from:
12.1.1 any interruption, failure, delay or cessation of transmission to or from the Service, or Technology used by you or us to install, download, provide or receive the Service or the Content;
12.1.2 any Destructive Code which may be transmitted to or through the Service or the Content;
12.1.3 any defect, fault, malfunction and/or delay in your Access Device, or the Technology used by you or us to install, download, provide or receive the Service or the Content;
12.1.4 any defect, failure, fault and/or delay in connectivity to the internet;
12.1.5 any data loss arising out of the installation, download or use of the Service or the Content; or
12.1.6 any unauthorised access to or use of our Technology and/or any and all personal or other information stored therein.
12.2 The provisions of clause 12.1 apply irrespective of whether any claim you or others make, or any loss, liability, injury or damage suffered, is based on warrant, contract, delict or any other legal theory, and whether or not we, or the 4SIGHT Partners, or our third party providers have been advised of the possibility of such loss, liability, injury or damage.
13.1 As far as the law allows, you indemnify us, the 4SIGHT Partners, and our third party providers and you agree to hold us, the 4SIGHT Partners and our third party providers harmless from and against any and all loss, liability, costs, and damages which we or they may suffer as a result of:
13.1.1 you infringing or misusing any person’s rights, including Intellectual Property Rights;
13.1.3 any deliberate or unlawful act that you commit, or your unlawful failure to act.
14. NOTICES AND COMMUNICATIONS
14.3 We also have the right to give you notices via the login page section of the Service.
15.5 Both you and 4SIGHT agree to submit to the non-exclusive jurisdiction of the courts of the Republic of South Africa.
necessary, to ensure that the provisions of the CPA and POPI are complied with.
15.7.1 does or purports to limit or exempt us or any other person or entity from any liability (including, without limitation, for any loss directly or indirectly attributable to our gross negligence or wilful default or that of any other person acting for or controlled by us) to the extent that the law does not allow such a limitation or exemption;
15.7.2 requires you to assume risk or liability for the kind of liability or loss, to the extent that the law does not allow such an assumption of risk or liability; or
15.8 Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
15.11.1 references to the singular includes the plural and vice versa;
15.11.2 words in any particular gender include the other genders (male, female and neutral). Reference to a neutral gender (for example “they” or “it”) include all genders;
15.11.4 the word “including” or “include” or “includes” must not be interpreted as limited to the list following the word or excluding other items from a list following the word. The word:
188.8.131.52 “including” means “including but not limited to”;
184.108.40.206 “include” means “include but is not limited to”; and
220.127.116.11 “includes” means “includes but is not limited to”; and Where any number of days is given, those days are counted to exclude the first day but include the last day.