1. Prevailing Terms and Conditions
1.1 The FM Protector website is owned and operated by Mix Telematics International (Pty) Limited trading as Mix Telematics with registration number 1963/006970/07 (“Mix Telematics”) and is registered and trades under the domains www.fm-protector.com and www.fm-protector.co.za and other related internet domain names (“the web sites”). (Collectively these internet domains and the associated in-vehicle product, the FM 4310i (“the Unit”), are referred to as “FM Protector” hereinafter) By completing the registration process, or signing a copy of the FM Protector Subscription Contract, the user of this website and its associated services (“the Users” or “the Customers”), acknowledge and accept the terms of service, conditions of use, limitations, disclaimers and indeed the entire content described in this document (referred to as the “Terms and Conditions”). MiX Telematics may from time to time update these Terms and Conditions. The User will be alerted to such changes on the FM Protector home page. Thereafter it is the responsibility of Users to acquaint themselves with such changes and by continuing the login process from the home page, the User is deemed to have accepted such changes.
2. Description of Service
2.1. Through the installation of the Unit and together with this website and its associated 3rd party products and services, MiX Telematics provides the User with various services. Such associated 3rd party instruments includes, but are not limited to, email messaging via the internet, Global System for Mobile Communication (“GSM”), based short text-based messaging (“SMS”), various wireless data transmission methodologies such as General Packet Radio Services (“GPRS”) and software applications resident in vehicle hardware products separately supplied by MiX Telematics. (“Product”) These services allow Users to access the geographical position and other relevant vehicle, or mobile device, information, using the internet or the GSM network. In addition, the service also allows the vehicle to purposely or autonomously initiate outward messages under certain conditions, some of which are configurable by the User. (“Event Notification”) Delivery of all these services are billed to the User through the consumption of credits sold and issued to the User. (“FM Protector Credits”) The specific terms relating to the sales of FM Protector Credits are provided in clause 4 of these Terms and Conditions. For the use of these services, the Users must have the following in place at their own costs: (a) Access to the Internet and World Wide Web through a reasonably fast internet connection and computer; (b) A valid email address; (c) Specify a GSM mobile telephony account able to receive SMS’s. (The service refers to either of the subscription options as per the FM Protector Subscription Contract and collectively all of the services described in this section are referred hereinafter as “Services”)
3. Monthly Subscriptions
3.1. This agreement shall commence on the signature date of the agreement by the signatory who signs last and shall remain in force for 36 (thirty six) months (“Contract Period”).
3.2. The monthly subscription rate may be adjusted from time to time but will be disclosed to the User at the time of entering into the contract (“Subscription”) and will be fixed at the disclosed rate for the entire Contract Period.
3.3. The monthly Subscription includes the costs of :
3.3.1 automatic vehicle location updates that will be done at time, distance or angle intervals determined by MiX Telematics from time to time at their sole discretion,
3.3.2 an extended 36 (thirty six) month Product warranty, provided such a warranty only remain in place while the User monthly subscription payments are up to date. All the other terms of the extended warranty will remain the same as those supplied with the Product,
3.3.3 the monthly promotional free-issue of a number of FM Protector Credits. The number of such FM Credits issue will be varied at the discretion of MiX Telematics from time to time but will in any event never be less than 600 (six hundred) FM Protector Credits.
4. FM Protector Credits
4.1. The provision of services operates on the principle of consuming FM Protector Credits for services rendered. The Services are billed when the request for such a Service is made, whether such a request is autonomously generated by the Product based on the preset settings determined by the User, generated by the User via an SMS or the website or generated by a third party via a SMS containing the correct authorization codes. Service delivery requests that subsequently fail to complete, can under certain circumstances also be billed or partially billed.
4.2. FM Protector Credits are purchased on-line using a credit card transaction mechanism The number of FM Protector Credits issued for each South African Rand (“ZAR”) will be determined and revised from time to time at the sole discretion of MiX Telematics. The ZAR to FM Protector Credit conversion rates are published on the FM Protector website and are applicable for future purchases of FM Protector Credits. No retrospective adjustments will be made to the remaining balances existing FM Protector Credits at the time of revision.
4.3. The rate or number of FM Protector Credits charged for each transaction offered by the Service, is published on the FM Protector website and will be determined and revised from time to time at the sole discretion of FM Protector. All Services rendered will be charged at the new rates from the published effective date of the rates table.
4.4. The User can forfeit FM Protector Credits under certain circumstances such as termination of the Service. These circumstances are described in Clauses 9 and 13.
4.5. The Product is fitted with a Vodacom SIM card. (“SIM’) This SIM is the property of MiX Telematics.
5. Copyright & Intellectual Property Rights (“IPR”)
5.1. All specifications, descriptive matter, electronic representations, downloaded files, software, drawings and other documents or media relating to the Services or Products, whether furnished by MiX Telematics to the User on this web site or other means, remains the property of MiX Telematics and the intellectual property relating thereto remains vested in MiX Telematics.
5.2. The User shall not copy the whole or any part of software and/or any products, save as otherwise provided herein; reverse engineer, disassemble, translate, adapt, modify, alter or in any way decode the whole or any part of the software and/or products; convert the whole or any part of the software from object code to source code; merge or combine the whole or any part of the software with any other computer software or documentation; part with possession of, lend, assign, lease, sub-license, transfer or otherwise provide electronically any part of the software and/or products or any copy or part thereof to any other person; use any of the data or other confidential information of MiX Telematics contained in or derived from the software and/or products or to develop or market any software which is substantially similar in its function or expression to any part of the software; or use the software for the business needs of another person or entity.
5.3. The User acknowledges that any and all of the intellectual property used or embodied in or in connection with the software and/or products are and will remain the sole property of MiX Telematics. The User shall not question or dispute the ownership of such rights at any time.
5.4. The User shall notify MiX Telematics as soon as practicable after it becomes aware of:
any actual, threatened or suspected infringement of MiX Telematics’s intellectual property;
Any claim brought against the User alleging that its use of the software infringes the copyright or any other intellectual property belonging to or alleged to belong to the claimant.
5.5. If any such claim as mentioned above is brought against the User, MiX Telematics reserves the right to replace or change all or any part of the software and/or products in order to avoid infringement or alleged infringement of any third party's rights.
5.6. The User acknowledges that the software and/or products contains confidential information or otherwise proprietary to MiX Telematics and undertakes to hold in confidence such information and not divulge such information to any person.
6. Privacy
6.1. The Service was designed to use various passwords, usernames and access codes (collectively referred to as “Passwords”) to protect the privacy of the User. MiX Telematics has taken reasonable precautions to ensure such Passwords are kept confidential on the FM Protector system. In any secure environment, it is good practice to change passwords at regular intervals and Users are advised to do the same on FM Protector.
6.2. Users remain entirely responsible to maintain the privacy of their Passwords from third parties. Failure to do so can result in such third parties gaining access to confidential information of the User such as the real time position of their vehicle.
6.3. If Users suspect any breach of security or unauthorized use of the User’s account, such Users must immediately notify MiX Telematics.
7. Recovery (only applicable if selected by the Customer)
7.1. MiX Telematics cannot and will not guarantee successful recovery of any vehicle, nor accept liability for any vehicle recovered or not, due to the nature of the recovery services.
7.2 MiX Telematics will use all reasonable means to track and recover a vehicle, if notified of a theft or hijacking within the boundaries of the Republic of South Africa.
7.3 Should the User be in default of any of their obligations in terms of this contract, MiX Telematics shall have no obligation to track or recover such a vehicle.
7.4 In respect of false alarms as to theft or hijacking of a vehicle, the User will be held responsible for all costs incurred.
7.5 All costs incurred will be for the User’s account, should the User insist on air support for tracking and recovery of a vehicle.
7.6 MiX Telematics will tow and deliver the recovered vehicle to a location nominated by MiX Telematics, the User shall be informed of this location as soon as possible, and all costs incurred shall be added to the User’s account.
7.7 A third party specialist recovery service provider supplies the recovery service to MiX Telematics.
8. Use And Maintenance (only applicable if selected by the Customer)
8.1 The User undertakes to use the Unit only for the purpose of receiving the Services, and further undertakes not to alter, modify or tamper with the Unit and shall use the Unit strictly in accordance with MiX Telematics's literature and user documentation supplied from time to time.
8.2 Should the User or MiX Telematics report a Unit that does not function properly within a 50 (fifty) kilometer radius (“Service Radius”) from any of the MiX Telematics service points in Johannesburg, Pretoria, Durban, Port Elizabeth, Bloemfontein and/or Cape Town;
8.3 MiX Telematics undertakes to attend to the Unit at its own cost, alternatively, procure that an Authorised Dealer attends to the Unit within a reasonable period after receiving such notice subject to the User making the vehicle available. In those cases where MiX Telematics or its Authorised Dealer has to attend to a Unit outside the Service Radius, travel and accommodation costs, at the prevailing rates shall be for the account of the User.
8.4 If, in the sole discretion of MiX Telematics, the Unit is damaged or is malfunctioning due to unauthorised alterations or modifications, abuse, misuse or through an accident and is capable of repair then MiX Telematics shall effect, alternatively, MiX Telematics shall procure that a Authorised Dealer effects the necessary repairs to the Unit within a reasonable period after becoming aware of the damage or malfunctioning of a Unit, the costs thereof to be for the account of the User and which will be payable on demand.
8.4 The maintenance provided for in the Agreement shall take place during business hours being 8 am to 5 pm, Monday to Friday, but excluding any such day that may be a public holiday.
8.5 The User shall be held responsible for any additional charges levied as a result of any misuse of any component of the Unit, including the cellular telephony SIM card.
8.6 The User shall be required to pay the wasted costs at the prevailing rate when the vehicle is not made available by the User for maintenance on the agreed day and time.
9. System Limitations
9.1. Any or all of the following limitations may have an impact on the safe use of the FM Protector products and services. These limitations must be carefully studied and fully understood by the User and acceptance of these Terms and Conditions by the User explicitly implies this to be the case. MiX Telematics strongly advises against any safety critical use that of the Services without the use of an appropriate and reliable backup service or procedures. Nor should the Services be used as the sole means of providing transactional information that may have a monetary impact on an individual or business.
9.2. Disruption of services
MiX Telematics makes use of 3rd party infrastructure and services such as, inter alia, GSM networks, GPS constellations, electricity suppliers and internet service providers. The availability of services of any or all of these 3rd party infrastructure and service providers cannot be guaranteed. Nor can MiX Telematics guarantee the availability and service levels of its own equipment, infrastructure or services.
9.3. Area coverage of GSM
FM Protector currently makes use of the Vodacom GPRS network as its primary means of communication between the Product and the Services. As such, communication is limited to the GSM/GPRS coverage provided by Vodacom within the borders of the Republic of South Africa only. For convenience only, indications of such coverage can be viewed on the internet at the following location: http://168.210.128.68/3G/
9.4. Factors affecting GPS reception
Satellite reception is affected by poor installations, atmospheric conditions, time of day and signal shadows by buildings and/or natural relief features such as mountains. In addition, the actions of the service providers of GPS services may also affect the accuracy and/or availability of the Service to provide geographical locations of vehicles.
9.5. Reliability of Event Notifications
The Event Notifications offered by the Service will provide the User with notifications of vehicle conditions such as low vehicle battery, over speeding to preset limits, driving outside of preset hours and others. The reliability of delivery of such Event Notifications are mainly affected by the performance of the GSM network at any point in time. During busy or peak GSM traffic times, delivery Event Notifications may be significantly delayed or even discarded. Poor installations and specific vehicles may also affect the ability of the Product to reliably sense any specific event.
9.6. Use of the ‘Alert Button’
In addition to the limitations described for Event Notifications above that also applies to the use of the alert button on the remote control unit (“RCU”) of the Product, the Alert Button is also subject to the following additional limitations: (a) The RCU is battery operated and a flat battery can affect its use. (b) The RCU is a radio frequency device and might be affected by outside radio or radio static interference. The use of the Alert Button in a life-threatening situation involving a third party with criminal intent, such as a car high-jacker, may also lead to aggravated or more aggressive behaviour by such a third party.
9.7. Service suspension due to low FM Protector Credits
The Services requires a minimum balance of FM Protector Credits to operate. Failure to maintain this minimum balance will lead to all Service being suspended and such suspension may happen without prior notification, with the exception that AVLs, and therefore vehicle positions, will remain available on the website as long as monthly Subscriptions are up to date.
9.8. Service suspension due to non-payment of monthly subscriptions
If monthly Subscription payments are not received on time, all services will be suspended, irrespective of the FM Protector Credit balance. FM Protector Credit balances will become available again once any arrear Subscription payments are received and the User account is re-instated.
9.9. Retention of vehicle usage data
The Product was designed to retain a certain amount of vehicle usage data in its memory. However, such usage data will not be kept indefinitely, nor can MiX Telematics provide any warranties against its corruption within the unit the Product. Once such vehicle usage data is uploaded to the FM Protector database as a trip report of similar service, FM Protector will attempt to store such vehicle usage data for a period of twelve months. Thereafter such vehicle usage data may be erased. MiX Telematics also does not provide any warranties to the safekeeping of such data within the stated twelve month period.
9.10.General limitations
There are several other factors that may also adversely affect the availability and accuracy of the Services such as environmental conditions, battery condition (vehicle and that of the Product or the RCU), quality of the installation and the actual usage profile (such as inactive period between use) of the Product and Service.
10. Disclaimers
10.1.The User agrees that the use of the Service is entirely at the User’s sole risk and is supplied on an ”as is” and “as available” basis. MiX Telematics expressly disclaims any warranties of any kind, whether expressed or implied, included but not limited to the fitness for any particular purpose.
10.2.MiX Telematics provides no warranty that the Service will meet your requirements, or that the Service will be uninterrupted, timely, secure or error free. Nor does MiX Telematics provide any warranty that results, data or information obtained from using the Service are accurate.
10.3.The User understands and agrees that any information or material downloaded or otherwise received from FM Protector is done at the sole discretion and risk of the User and that any damage to the User’s computer system or loss of data that results from downloading or receiving information or material from FM Protector, will be the sole responsibility of the User.
10.4.MiX Telematics makes no claims, and provides no warranties, that any advice given or information provided to the User relating to the Service, whether written, orally or by any means whatsoever, shall create any implied or expressed warranty not expressly made herein.
11. Third Party Content
11.1.Certain third party content is used or displayed by FM Protector on the Service, including but not limited to text, software, music, sound, photographs, video, graphics and advertisements (“content”), is protected by copyright, trademarks, service marks, patents or other proprietary rights. The User will not copy, distribute or create derivative works from the Content without written permission from MiX Telematics or the owner of the Content. The User also indemnifies and holds MiX Telematics harmless against such unauthorized use of the Content.
12. Damages and Losses
12.1.Notwithstanding anything else in these Terms and Conditions, MiX Telematics shall not be liable to the User by reason of any representation or implied warranty, condition or other term or any duty at common law, or under the express terms of these Terms and Conditions, for any loss or damage (direct, indirect or consequential, for loss or profit or otherwise and whether occasioned by the negligence of MiX Telematics or its employees or agents or otherwise) arising out of or in connection with any act or omission of the FM Protector system relating to the supply of services and goods, or the use thereof in any manner whatsoever.
13. Termination of Service
13.1. The User may not terminate the Subscription prior to the expiry of the Contract Period without the written consent of MiX Telematics. Any unlawful termination will, inter alia, lead to any remaining FM Protector Credits being forfeited.
13.2. To reinstate a terminated Service, the User will be required to apply to the MiX Telematics helpdesk and will be required to provide written proof that all arrear Subscriptions have been paid.
13.3. Re-instatement after the Services has been suspended more than six months may not be possible.
13.4. When a suspended service is resumed, the following conditions may apply:
13.4.1 The User will have to register again and complete all personal and vehicle profiles anew.
13.4.2 Any previously forfeited FM Protector Credits may not be reinstated.
13.4.3 Previous data and trip records may not be reinstated.
14. Transfer of Service
14.1. Users may elect to transfer their FM Protector Unit to a new vehicle. The new vehicle details are entered by the User on the Vehicle Profile page. Any costs associated de-installation and/or re-installation costs of the FM Protector Unit will be for the account of the User
14.2. The User may also elect to transfer their Account to a new Account Holder, which transfer will only be accepted if the new User signs a copy of these Terms and Conditions and updates the User Details on the appropriate web page.
15. E-Commerce & Online Credit Card Transactions
15.1. Delivery of Services
Subject to availability and receipt of payment, requests will be processed immediately and credit allocation may be confirmed by viewing the Credits Usage Report on this website.
15.2. E-Commerce Customer Privacy Policy
MiX Telematics shall take all reasonable steps to protect the personal information of users. For the purpose of this clause, personal information shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from: http://www.polity.org.za/attachment.php?aa_id=3569
15.3. Payment Options Accepted
Payment may be made via Visa or MasterCard.
15.4. Credit Card Acquiring Security
Credit card transactions will be acquired for MiX Telematics via PayGate (Pty) Ltd who are the approved payment gateway for Standard Bank of South Africa. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no credit card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.
15.5. Customer Details Separate from Credit Cards
Customer details will be stored by MiX Telematics separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za
15.6. Merchant Outlet Country & Transaction Currency
The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction Currency is South African Rand
15.7. Transaction Responsibility
MiX Telematics takes responsibility for all aspects relating to the transaction including sale of goods and services sold on this website, customer service and support, dispute resolution and delivery of goods.
16. Notices & Correspondence
16.1. FM Protector is a web-based service. Several means of communication with Users are provided such as User Forums and Blogging Sites. All of these communication tools will be for the purposes of providing information only and any notices, claims made or descriptions of the Service provided on any of these media, will in no way be binding on MiX Telematics, nor shall it alter or supersede these Terms and Conditions. The only exception to this will be notices posted on our Newsletter on the home page, alerting Users to changes in these Terms and Conditions.
17. Domicilium and Notices
17.1. The User chooses as it as its domicilium citandi et executandi the address specified in the pre-amble to this agreement for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature.
18. General
18.1. The headings of the clauses herein are for the purpose of convenience and reference only and shall not be used in the interpretation, nor amplify the terms of these terms and conditions or any clause hereof. Unless contrary intention clearly appears, wording importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons include legal entities and vice versa.
18.2. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of South Africa.
18.3. Any cause or action arising out of the use of the Service or related thereto, must commence within one year after the cause of the action arose. Failure to do so will result in the cause of the action now longer considered valid and therefore disqualified from any further action by the User.
19. Support Contact Details
19.1 More support contact details are available on the website but the following primary contacts are herewith provided:
Telephonic Support: 0860 103 834