Monitoring & Telematics Service
1. Definitions
1.1 “Agreement” – The agreement concluded between the Client and Khomba in respect of the Product and/or Service outlined in the Subscriber Application Form which agreement will be exclusively governed by these terms and conditions and the specific terms and features applicable to the relevant Product or Service (as contained in Khomba’s Product brochures), read together with the Subscriber Application Form and any appendices attached.
1.2 “Business Day” – Any day including a Saturday, Sunday or official public holiday in South Africa.
1.3 “Khomba” – Khomba Solutions (Pty) Ltd and any entities appointed by Khomba to perform the Service and shall include references to the employees, agents, sub-contractors, service providers, suppliers and any independent contractors of Khomba or such appointed entities.
1.4 “Client” – The Party whose details appear on the Subscriber Application Form and who has signed after being requested to read these terms and conditions which will govern the relationship between the Parties.
1.5 “Confidential Information”- Information that is identified (orally or in writing) as confidential or of such a nature that a reasonable person would understand such information to be confidential.
1.6 “Cooling-Off” – Means the right of the Client to rescind the Agreement if it originated from Direct Marketing as referred to in clause 3.6.
1.7 “Day; Week; Month” – Calendar day, week or month, respectively.
1.8 “Direct Marketing” – means where the Client has been approached by Khomba in an unsolicited manner as defined in the Consumer Protection Act No 68 of 2008.
1.9 “Fee” – The collective fees for providing the Service, either as Minimum Term Option or as a Standard Option and (if applicable), specified on the Subscriber Application Form and payable monthly in advance by the Client to Khomba, together with any other charges which Khomba is allowed to levy under this Agreement and which are set out in the Price Table.
1.10 “Installation Centre” – A centre approved by Khomba for the installation of a fixed Unit. 1.11 “Intermediary” – A third party nominated by the Client.
1.12 “Loss” – The hijacking and/or theft of a Vehicle, in which event the Client is responsible to immediately notify Khomba if the Client has a Unit with SVR.
1.13 “Minimum Term Option” – The amount specified as “Monthly Subscription” on the Subscriber Application Form, payable monthly in advance to Khomba for the duration of the Term.
1.14 “Product” – The Unit and/or the value-added services selected by the Client on the Subscriber Application Form.
1.15 “The Parties/Party” – Khomba and the Client; either Khomba or the Client.
1.16 “Price Table” – An indicative price list, available to the Client on request, setting out the ruling retail price for the Service, the Minimum Term Option amounts, the Products and ancillary charges which may be updated from time to time.
1.17 “Purchase Price” – The amount specified as the “Price” on the Subscriber Application Form.
1.18 “Roaming Costs” – Any GSM costs incurred when the Unit transmits messages via a GSM network when located outside the Territory.
1.19 “Service” – Means the provision by Khomba to the Client of Fleet Management Services (“FMS”) and/or Stolen Vehicle Recovery Services (SVR) (which Khomba will outsource to a 3rd party) dependent on the Product selected by the Client on the Subscriber Application Form.
1.19.1 “FMS” – Means the provision by Khomba to the Client of a real-time web-based system whereby the Client is able to position, monitor and obtain reports covering various aspects of driver and Vehicle performance. This Service only applies where a GPS fleet management Unit is installed and is limited to the Territory, except if the Product specifically incorporates international data roaming, in which case the roaming data service will be provided in specified countries. 1.19.2 “SVR” – Means the provision of a Service by Khomba’s outsourced service to the Client whereby Khomba conducts the tracking and recovery operations in accordance with Khomba’s standard procedures to secure the Vehicle after receiving notification of a Loss by the Client. This Service is only applicable in the Territory and in countries where Khomba has an operational branch.
1.20 “Subscriber Application Form” – The face of this Agreement and any appendices attached.
1.21 “Term” – Where the Client has selected the standard purchase option, from and including the date of installation to the last day of the month; where the Client has selected the Minimum Term Option, from and including the date of installation to 00:00 on the last day of the Minimum Term Option period stipulated in the Subscriber Application Form, which Minimum Term Option period shall be deemed to be 36 (thirty six) months from installation.
1.22 “Territory” – The Republic of South Africa 1.23 “Vehicle” – Any Vehicle or other asset of the Client which is the subject of this Agreement and in which a Unit is installed, the details of which appear either on the Subscriber Application Form or on any appendix attached.
2. Device & System
2.1 An authorised Khomba representative at a Khomba Installation Centre shall install the Unit into the Client’s Vehicle/s.
2.2 The Client confirms that it is the legal owner of the Vehicle in which the Unit is installed. In the event that the Client is not the owner of the Vehicle, the Client confirms that it has the necessary consent from the legal owner of the Vehicle to allow a Unit to be installed in the Vehicle.
2.3 Where the Client has selected a Unit with FMS, with or without SVR, the following shall apply:
2.3.1 The FMS features provided by Khomba to the Client are dependent on and limited to the Product selected by the Client and as indicated on the Subscriber Application Form and in the Product brochures;
2.3.2 Secure 24-hour (twenty-four-hour) access to the web-based monitoring and reporting system shall be provided to the Client on creation of a username and password;
2.3.3 User support shall be provided by user manuals and a telephonic or email support desk.
2.4 The Client accepts responsibility for making all reasonable enquiry as to the suitability for purpose of the Unit, the main features of which are disclosed in Product brochures which are available to the Client on request. 2.5 Khomba shall list clients vehicle onto a platform a platform where the platform will be marketed for customer looking to hire a motor vehicle. Customers will be able to book or hire clients vehicles through the Khomba platform.
3. Terms and Conditions
3.1 This Agreement shall continue for the Term.
3.2 The Client (if the Client is a natural person) may cancel this Agreement in writing or other recorded manner:
3.2.1 upon the expiry of the Term without penalty or charge, subject to the Client remaining liable to Khomba for any amounts owed in terms of the Agreement up to the date of cancellation; or 3.2.2 at any other time, by giving Khomba notice of 20 (twenty) Business Days, subject to the Client remaining liable to Khomba for any amounts owed in terms of the Agreement up to the date of cancellation and subject to clause 3.4.
3.3 The Client (if the Client is a juristic person) may cancel this Agreement in writing or other recorded manner:
3.3.1 by giving Khomba notice of 1 (one) month upon expiry of the Term, subject to the Client remaining liable to Khomba for any amounts owed in terms of the Agreement up to the date of cancellation; or
3.3.2 at any other time, by giving Khomba notice of 1 (one) month, subject to the Client remaining liable to Khomba for any amounts owed in terms of the Agreement up to the date of cancellation and subject to clause 3.4.
3.4 Khomba will impose a reasonable cancellation fee, should the cancellation be before the end of the Term. In this regard, if the Client is a Consumer, as defined by Section 1 of the Consumer Protection Act No 68 of 2008, then the cancellation fee shall be determined by taking into account the cost incurred by Khomba in the acquisition of the Client (Section 14(3) of the Consumer Protection Act No 68 of 2008), which cost may vary from time to time.
3.5 Khomba may cancel this Agreement 20 (twenty) Business Days after giving written notice to the Client of a material failure (i.e. non-payment or failure to comply with the obligations in terms of this Agreement) by the Client, unless the Client has rectified the failure within that time.
3.6 Should the Client have concluded the Agreement with Khomba as a result of Direct Marketing, the Client has the right to enforce its Cooling-Off rights in accordance with the Consumer Protection Act 68 of 2008. In terms thereof, the Client may be entitled to cancel the Agreement within 5 (five) Business Days after the Agreement has been concluded, by written notice to Khomba. Should the Client exercise his/her Cooling-Off rights, then any payment that has been made to Khomba in respect of such Agreement will be repaid as follows:
3.6.1 Within 15 (fifteen) Business Days if no installation has been completed; or
3.6.2 Within 15 (fifteen) Business Days after the return of the Unit to Khomba if installation has already taken place.
3.7 In the event that the Client finds the Unit defective or not of the standard described, the Client shall return the Vehicle to Khomba within 10 (ten) Business Days of fitment, at Khomba’s risk and expense, for Khomba to inspect the Unit installed in the Vehicle. Should the Unit be found to be defective, Khomba shall, at its discretion, replace the Unit or cancel the Agreement.
4. Renewal
4.1 Khomba will, not more than 80 (eighty) days and not less than 40 (forty) days before the expiry of the Minimum Term Option, notify the Client in writing or any other recordable form of the impending expiry date, including the notice of:
4.1.1 Any material changes that will apply if the Agreement is to be renewed or which may apply beyond the expiry of the Term; and
4.1.2 Any options available to the Client in terms of clause 4.2.
4.2 On the expiry of the Term, it will automatically be continued on a month-to-month basis, subject to the notice periods in clause 3 and any material changes of which Khomba has given notice (in terms of clause 4.1.1) unless the Client:
4.2.1 Directs Khomba to terminate the Agreement on the expiry date of the Term in terms of clause 3; or
4.2.2 Agrees to a renewal of the Agreement for a further period.
5. Fee
5.1 A fee an Installation and a monthly service fee will be paid by client to Khomba monthly for each vehicle listed on the Khomba platform and/ or for each vehicle for which a Khomba tracking and telemetry unit has been installed.
5.2 The Client shall pay Khomba the Fee for the Service as set out in the Subscriber Application Form as revised from time to time as per this clause 5, monthly in advance by debit order on the Client’s bank account.
5.3 In the event that the payment date as selected by the Client on the Subscriber Application Form does not fall on a Business Day, the Client hereby agrees that Khomba may debit the Client’s bank account on the preceding Business Day.
5.4 In the event that the Client’s debit order is returned for any reason whatsoever, Khomba reserves the right to change the date on which debit orders are processed.
5.5 The Client shall pay Khomba for additional ad-hoc Services such as Roaming Costs within 30 (thirty) days of receipt of an invoice from Khomba. The Client agrees such costs reflected on an invoice received from Khomba shall be considered a true reflection of the costs incurred by the Client and the Client shall not withhold payment for any reason whatsoever.
5.6 The first Fee and the Purchase Price, if applicable, shall be paid upon installation of the Unit.
5.7 Khomba will increase the Fee every year at Khomba’s discretion and based on the prevailing Consumer Price Index.
5.8 Khomba shall provide the Client with written notice of not more than 80 (eighty) days nor less than 40 (forty) days before each annual Fee increase stating the increased amount and the effective date.
5.9 Khomba shall retain 10% of the rate charged for vehicles booked or hired from the Khomba platform and pay the 90% balance to the client.
6. Hardware and Warranty
6.1 The Client will be responsible to use the Unit and the Service in the manner advised by Khomba and as reflected in Khomba’s Product brochures. The Client shall not, in any way remove, alter or tamper with the Unit.
6.2 Subject to the Client complying with clause 6.1, the Unit and the installation thereof carries a 12 (twelve) month warranty. Any maintenance and/or repairs must be carried out at a Khomba approved Installation Centre. 6.3 All risk of loss and damage in and to the Unit shall, from the date of installation, pass to the Client, but ownership of the Unit shall remain with Khomba for the length of the contract, unless paid in full upfront using the cash option. If this Agreement is terminated in accordance with clause 3 or clause 9, Khomba may at its expense remove the Unit and the Client shall, within 5 (five) days of receipt of any written or verbal request, deliver the Vehicle to an Installation Centre for such removal.
7. Furnishing of Information
7.1 The Client confirms the completeness and accuracy of all the information on the Subscriber Application Form or otherwise furnished by or on behalf of the Client to Khomba.
7.2 The Client shall immediately, or as soon as is practically possible notify Khomba in writing of any changes to the information on the Subscriber Application Form, any material changes relating to the Vehicle, including, inter alia, insurance details, or other information furnished to Khomba from time to time, by written notice to hello@khomba.app or through the Client Services Portal (a portal accessible on the Khomba website), which information will be updated within 7 (seven) days of receipt by Khomba.
7.3 The Client has selected the address referred to on the Subscriber Application Form as its selected legal address where all communications from Khomba and any legally required notices will be delivered for all purposes arising out of this Agreement, provided that the Client shall be entitled to change such legal service address, on written notice to Khomba or through the Client Services Portal. Khomba will effect such change within 7 (seven) days of receipt by Khomba of such notice.
7.4 The Client consents to Khomba supplying third party insurers with its personal information, including, but not limited to the Client’s name and contact number, or other information as is reasonably required to obtain a favourable insurance premium on behalf of the Client. The Client may revoke this consent at any time on written request to Khomba.
8. Client’s General Obligation
8.1 It is the responsibility of the Client to contact the Khomba control centre for a Unit test to be carried out in terms of clause 10.1.3.3. The Client must take all reasonable steps to ensure that the Unit is in proper working order and must immediately or as soon as is practically possible report any Unit faults and/or failures to Khomba in order for Khomba to provide the Service.
8.2 The Client must ensure that the Khomba emergency numbers (+27 (0) 861 111 564 or + 27 (072) 922-8153 are kept handy and contact Khomba as soon as possible after a Loss.
8.3 The Client holds exclusive responsibility, and Khomba shall have no liability, for ensuring that the Service complies with all laws regarding the intended use by the Client of the Service herein.
9. Default
9.1 If the Client (or the Intermediary on the Client’s behalf), after 7 (seven) days written notice of default, fails to pay any amount due in terms of this Agreement or the Client abuses or misuses the Service, then, for the duration of such default, Khomba may suspend all of its obligations in terms of this Agreement. Khomba shall be entitled to recover arrear Fees by debiting the Client’s account with the outstanding amount or by any other legal action, and cancel the Agreement, charging a reasonable penalty fee for early cancellation.
9.2 Khomba reserves the right to cancel this agreement at any time, on 10 (ten) days’ written notice to the Client.
10. Disclaimers
10.1 Khomba makes no warranty that the Service will capture all events, that remote access and the GSM network will be continuous or uninterrupted, that the fleet management web-based system will be error-free, or that any specific result or outcome will be achieved by utilising the Service, or that the use of the Service by the Client will comply with all applicable laws.
11. Warranties and Representations
11.1 The Client represents and warrants that:
11.1.1 It has the necessary right and authority to enter into this Agreement, is the lawful owner and/or possessor of the Vehicle, and is therefore permitted to allow Khomba to provide the Service herein;
11.1.2 In making such disclosure, the Client hereby indemnifies Khomba from any claim whatsoever which may arise from any third party/ies against Khomba in the event that the Client has misrepresented its right and authority.
12. Exclusion of Liability
12.1 In addition to any other indemnities contained in this Agreement, Khomba will not be liable for any loss or damage of whatsoever nature caused to the Client in consequence of any act or omission by Khomba, notwithstanding any negligence on the part of Khomba, provided only that Khomba is entitled in law to contract out of such liability. In the event that Khomba is, despite the provisions of this clause 12, found by a court of law with competent jurisdiction to be liable for any loss or damage to the Client, Khomba’s liability will be limited to the maximum amount of R30 000 (thirty thousand rand).
12.2 Khomba shall not not be liable for any loss or damage incurred by client has been caused by entity or person hiring the asset.
13 General
13.1 Khomba will make every reasonable effort to carry out its obligations under this Agreement, using commercially reasonable efforts conforming to generally accepted industry standards. Where Khomba is directly or indirectly prevented or restricted from carrying out all or any of its obligations under this
