FS SYSTEMS SERA4 STANDARD TERMS AND CONDITIONS OF SALE

Sera4 Terms and Conditions of Sale

(hereinafter “Terms and Conditions” or “Agreement”)

Unless otherwise specifically provided by separate written agreement, duly signed by FSS and the Customer, these Terms and Conditions constitute the agreement between FSS and the Customer in respect of the sale by the Customer of any Hardware and Services and use of Software (all as defined below).

Definitions:

The following terms shall have the meanings set out below unless the context requires otherwise:

 

Access Devices means Sera4 Padlocks and Sera4 Controllers. 

 

Access Point means an Access Device that when used in conjunction with the Software (and in the case of the Sera4 Controller with a Third-Party Electrical Lock) enables End Users to gain entry and access to critical infrastructure, equipment and other assets and locations.

 

Administrators mean the individuals directly or indirectly authorized by Customer to issue, manage and log the use of encrypted digital keys and permissions for Access Devices. 

 

Authorized Users means Administrators and End Users. 

 

Customer means the party who affixed its name and signature to the Customer On-boarding Form, being the person or other entity that has title, or is acquiring the title, to Access Devices for the purposes of controlling access to assets and locations. It is agreed that the Customer may not resell any Access Devices.

 

Customer On-boarding Form means the document headed “Customer On-boarding Form” completed by the Customer to which this Agreement acts as an annexure;

Delivery Date means the date on which the Products are delivered at one or more premises of the Customer.

 

End User means an individual who has digital key(s) issued to their Mobile Device by an Administrator, for the purpose of enabling that individual to access specific Access Point(s) at specific times.   

 

Entry Point is a location (e.g. gate, cabinet, metal tower, etc) at which an Access Point is installed. 

 

Fees means the fees paid or required to be paid for the Products and Services including without limitation, the purchase fees for Hardware and the fees for the Services. 

 

FSS means FS Systems Proprietary Limited (registration number: 2015/312176/07), a private company incorporated in accordance with the laws of South Africa with principle address Ground Floor, Birkdale 1, River Park, Gloucester Road, Mowbray, 7700 

 

Hardware means hardware products designed and or sold by Sera4 and currently includes Access Devices and Sera4 access pads.

 

Initial Period means the initial fixed period, commencing on the Delivery Date, for which the Services are provided by FSS to the Customer as set detailed and set out in the Quote.

License has the meaning set out in section 3.

Mobile Device(s) means an Android or iOS mobile device compatible with Teleporte that is used by an End User to access one or more Access Points, or hardware installed at a Customer site to enable End Users to access one or more Access Points.

 

Prime Rate means the prime bank overdraft rate as quoted by First National Bank Limited, a division of FirstRand Limited, as may be amended from time to time.

 

Products means Hardware and Software. 

 

Quote means any quote or pro forma invoice issued by FSS to the Customer for the sale of the Products and/or the sale of the Services and to which this Agreement forms an annexure.

 

Sera4 means Sera4 Limited, with principle address 725 Bridge St. W., Suite 201, Waterloo, Ontario, Canada N2V 2H1.

 

Services means the level of the Teleporte Service offering, which may include maintenance and support services, purchased by Customer as indicated in the Quote issued by FSS to the Purchaser. 

 

Software means Sera4 proprietary software including without limitation: i) cloud-based server software that provides the Teleporte Service; ii) APIs that enable integration of third-party software with the Teleporte Service; iii) the Teleporte Mobile App for use on Mobile Devices; and iv) the Sera4 software embedded and/or provisioned in the Hardware or used as a Sera4 Controller. 

 

Sera4 Controllers means either standalone hardware units, or hardware or software components, in each case designed by Sera4 to enable Third-Party Electrical Locks to be used as part of Access Points. 

 

Teleporte Mobile App means the Teleporte mobile application accessible on Mobile Devices to which inter alia credentials are issued to End Users for accessing Access Device(s)

Teleporte Service means the Sera4 cloud-based server software, including without limitation the web portal and dashboard software, and APIs that enable Administrators to remotely issue, manage, and log the use of encrypted digital keys and permissions for Access Points. 

 

Teleporte has the meaning set out in Section 1.

 

Territory is the country(ies) set out in the Quote.

 

Third-Party Administrators are Administrators that are not directly employed by Customer.  It is a specific provision of this Agreement that any addition of a Third Party Administrator shall be subject to prior written approval of FSS. 

Third-Party Authorized Users means Authorized Users that are not directly employed by Customer.  It is a specific provision of this Agreement that any addition of a Third Party Authorised User shall be subject to prior written approval of FSS. 

 

Third-Party Electrical Locks means third-party electrical locks used in conjunction with Sera4 Controllers and Software to create an Access Point.

 

Third-Party End Users are End Users that are not directly employed by Customer. It is a specific provision of this Agreement that any addition of a Third Party End User shall be subject to prior written approval of FSS. 

 

1. Teleporte.  Teleporte is a digital system that, among other things, enables Customer to facilitate, control and log the access by End Users through Access Points.  It requires: a) Access Points; b) the Teleporte Service; and c) the Teleporte Mobile App that when installed on Mobile Devices allows digital keys to authenticate and enable proximity-based communication with Access Points; (collectively ``Teleporte``).  Access Devices purchased under these Terms and Conditions of Sale (the ``Agreement``) may only be used in the Territory.

2. Terms and Conditions.  Customer may purchase Hardware and Services and use Software (including any Software embedded on the Hardware or that forms part of a Sera4 Controller) only on the terms and subject to the conditions set out in this Agreement.  No other terms and conditions of sale or lease shall be of any force or effect nor shall it supersede or override these Terms and Conditions, notwithstanding the acceptance of a Customer purchase order, the standard printed terms and condition on Customer`s purchase order or any terms included in correspondence or elsewhere or implied by trade custom.  Customer may request special terms and conditions for a particular order by clearly indicating a request for same on the face of the purchase order.  These special terms shall not be binding on FSS unless FSS specifically accepts these terms and conditions by including them in its Quote. 

 

3. Teleporte Service Access and Software Use.  All Software supplied hereunder, and access to the Teleporte Service, is subject to the current Sera4 Teleporte Service Access and Software Use Agreement (``License``), a copy of which is located at http://www.sera4.com/terms-of-use.  For avoidance of doubt, as a condition of entering into this Agreement, Customer also agrees to be bound by the terms and conditions of the License with Sera4 and which terms and conditions are incorporated into this Agreement by way of reference. Cusomer further agrees to have each Authorized User agree to the terms and conditions of the License, that both Sera4 and FSS shall have no liability whatsoever for the acts of Customer’s Authorized Users, and hereby indemnifies both Sera4 and FSS (on demand and on a rand for rand basis) and agrees to hold them harmless against any costs, damages or losses suffered by Sera4 and/or FSS (as the case may be) as a result of a breach of the License by any Authorized User or the Customer (as the case may be).  

4. Ownership and No Implied License.  Except for title to Hardware purchased by Customer from FSS, No ownership right, title, or interest, in or to Teleporte or any part thereof or to the extent permitted by applicable law, to any data created by the use thereof, or to any associated intellectual property rights is transferred to Customer under this Agreement. For clarity, the sale of Hardware and license of Software does not convey any patent license or similar rights whatsoever, under any legal theory or otherwise to combinations of the Products and Teleporte Service with any hardware, software or system for which Sera4 or FSS has not authorized it, or for any modifications to the Products or Teleporte Service.

5. No Resale or Sublicense Rights.  Customer acknowledges and agrees that except for the right of Customer to include Third-Party Authorized Users as part of their Authorized Users, these terms and conditions do not in any manner whatsoever permit the resale or sublicensing of any portion of Teleporte or any data generated by the use thereby.  Customer further acknowledges and agrees that to do so may cause FSS or Sera4 serious loss and damage and Customer hereby indemnifies FSS and Sera4 (on demand and on a rand for rand basis) against all such costs, loss and damage (including but not limited to any legal fees and costs) suffered as a result of a breach by the Customer of the provisions of this section 5.

6. Payment Terms and Term. Customer shall pay to FSS the fees for the Products and the Services as specified in the Quote in accordance with the payment terms set out therein.  If there are no such terms, Customer shall pay for the Products in full prior to delivery, Ex Works, (Incoterms 2010) and shall pay the applicable Fees for the Services on an annual basis prior to the start of each year commencing on the Delivery Date.  The Services purchased hereunder shall at first be rendered for the Initial Period. Thereafter, provided Customer has faithfully and fully complied with its obligations under this Agreement, Customer shall have the option to renew the term of this Agreement for a period as agreed between Customer and FSS. The Customer may not terminate this Agreement during the Initial Period. FSS shall deliver an invoice to Customer for the Services prior to the renewal date setting out the then current Fees for the Services including any updates to these Terms and Conditions if applicable. 

7. Interest.  Without limiting its other rights hereunder, FSS may charge the lesser of: i) 5% above the Prime Rate in effect on the date that payment becomes due; and ii) the maximum amount permitted by applicable law; for late payment of any amount owing under this Agreement.  

8. Cancellation: Without prejudice to any other rights of the parties under this Agreement, should the Customer:

 

8.1  be placed in liquidation or under business rescue, whether provisional or final, or pass a resolution for its voluntary winding-up (or, in each case, the equivalent or similar nature under the laws of the jurisdiction in which the Customer is registered or its principal place of business); or

8.2  default on payment for the Products and/or Services or any other amount due by Customer to FSS in terms of this Agreement.

8.3  commit a breach of any terms (other than payment terms) of this Agreement and fail to remedy that breach within 7 (seven) days following receipt of a written notice by FSS; then (without derogating from any other rights that FSS may have):

8.4  FSS may terminate this Agreement or claim specific performance; and/or

8.5  charge interest on any payments that are in arrears at a rate equal to 5% (five percent) above the Prime Rate; and/or

8.6  immediately suspend or terminate the Services and take possession of the Products.

 

For purposes of exercising the rights afforded to FSS under section 8.68.6, Customer hereby appoints and authorizes FSS to enter the premises at which the Products are situated and to take possession of and/or remove such Products. Customer hereby waives any claims that it may have against FSS and/or any third party resulting from and/or arising out of such removal

 

9. Shipping Terms.  Unless otherwise specified in a quote or proforma invoice by FSS, Customer shall be responsible for all shipping, insurance and other costs, including, but not limited to, any import duties or other taxes (except for taxes on the income of FSS) associated with the supply of Products and Services under this Agreement.  Delivery of Products and risk of loss and damage to those Products, shall pass to Customer, Ex Works, FSS`s shipping location, Incoterms 2010 apply.  Customer acknowledges and agrees that Products may include a non-rechargeable lithium metal battery and that they are required to comply with all applicable laws regarding the transport, handling, and disposal of same.  Title to Hardware shall pass upon FSS receiving payment in full for those Products unless otherwise specified in a quote or proforma invoice by FSS.

10. Export.  Customer acknowledges that the Software includes cryptographic technology that may be subject to export, import, and/or use controls by government authorities.  Customer agrees that the Software will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the Software is being exported or to which the Software is being imported.  Without limiting the foregoing, unless agreed to in writing by Sera4, Customer agrees the Software will not be exported:  (i) to any country on Canada's Area Control List; (ii) to any country subject to UN Security Council embargo or action; (iii) contrary to Canada's Export Control List Item 5505; (iv) to countries subject to U.S. economic sanctions and embargoes; and (v) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items.

11. Warranty on Hardware.  The Customer acknowledges that Sera4 is the manufacturer of the Hardware and is sold to the Customer in terms of this Agreement with the same express or implied warranties provided to FSS by Sera4.  There is no warranty on any consumables including but not limited to batteries.  The terms and procedures applicable to the warranty and return of defective Hardware is set out at https://www.sera4.com/hardware-warranty/.  Software maintenance and support for Software not embedded in Hardware is supplied as part of the Fees for the Services in accordance with the Teleporte Service Access and Software Use Agreement. 

12. Limitations on FSS`s Responsibility.  Unless FSS expressly agrees otherwise, its sole responsibility is the provision of Teleporte as ordered by Customer.  Customer shall be responsible to obtain and to pay for all other aspects of its system, including any network access and Third-Party Electrical Locks.  Customer shall also be responsible to ensure that its use of Teleporte and that of its Authorized Users complies with all applicable laws, including without limitation, any restrictions on the transfer of data between countries.  In no event shall FSS or Sera4 be responsible for the functioning or functionality of: i i) any portion of Customer`s system not supplied by FSS or Sera4 and the impact thereof on the Products and Services provided by FSS in terms of this Agreement and ii) Mobile Devices. FSS and Sera4 shall have no responsibility for the safeguarding or security associated with the transmission of information or data transmitted to or from Customer or Authorized Users using Teleporte other than for the encrypted keys.  Notwithstanding any other provision in this Agreement, FSS shall have no responsibility or liability whatsoever for the performance or failure to perform of any beta, trial or proof of concept product or service (including Services) supplied to Customer. Customer hereby indemnifies FSS and Sera4 (on demand and on a rand for rand basis) against all such costs, loss and damage (including but not limited to any legal fees and costs) suffered as a result of any malfunction of the Products or break in the Services caused or occasioned by (whether directly or indirectly) Customer’s own act or omissions and/or any portion of Customer`s system not supplied by FSS or Sera4 and for any failure by Customer to safeguard any information or data transmitted to or from the Customer or its Authorised Users.

13. Confidentiality.  The terms and conditions set out in this Agreement or any Quote provided to Customer by FSS, including any such pricing information, constitute the confidential information of FSS and unless otherwise agreed in writing by FSS, may not be disclosed by Customer to any third person.  Customer acknowledges and agrees that disclosure of such information could cause FSS significant and irreparable harm and that FSS would be unable to provide Customer with this pricing if Customer discloses such information. 

14. Mission-Critical Applications.  TELEPORTE AND ANY PORTION THEREOF, IS NOT SUITABLE FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS OR ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS AND SHOULD NOT BE PURCHASED FOR SUCH USE. 

 

​​15. Limitation on Liability. FSS SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CAUSE WHATSOEVER. NOTWITHSTANDING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND SHOULD IT BE DETERMINED THAT FSS OWES ANY LIABILITY TOWARDS CUSTOMER, THEN FSS’S LIABILITY TO THE CUSTOMER (HOWSOEVER ARISING) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT OR THE PARTICULAR SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTH PERIOD LEADING UP TO THE DATE ON WHICH ANY SUCH CLAIM ARISES UNDER THIS AGREEMENT, CUSOTMER HEREBY INDEMNIFIES FSS ON DEMAND AND ON A RAND FOR RAND BASIS AGAINTS ANY CLAIMS FROM ANY PARTY (INCLUDING CLAIMS BROUGHT BY THE CUSTOMER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. 

16. No Implied Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.

17. Third-Party Products.  IF FSS AGREES TO PROVIDE TO, OR INSTALL ANY THIRD-PARTY PRODUCT INCLUDING BUT NOT LIMITED TO ANY THIRD-PARTY ELECTRICAL LOCK,  ON BEHALF OF CUSTOMER, FSS DOES SO AS A SERVICE TO CUSTOMER, AND CUSTOMER ACKNOWLEDGES AND AGREES, THAT FSS HAS NO ABILITY TO CONTROL THE DESIGN OR PERFORMANCE OF SUCH THIRD-PARTY PRODUCT, THAT FSS PROVIDES THE THIRD-PARTY PRODUCT ON AN “AS IS” BASIS AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FSS OR SERA4 SHALL HAVE NO LIABILITY FOR THE DESIGN OR PERFORMANCE OF THAT THIRD-PARTY PRODUCT WHATSOEVER, AND THAT FSS`S SOLE RESPONSIBILITY WITH RESPECT TO THE THIRD-PARTY PRODUCT, INCLUDING WITHOUT LIMITATION, ITS DESIGN OR PERFORMANCE, SHALL BE TO PASS THROUGH THE BENEFIT OF ANY WARRANTY PROVIDED BY THE SUPPLIER OF THE THIRD-PARTY PRODUCT TO CUSTOMER. 

18. Exclusion of Liability for Specified Persons.  IN NO EVENT WILL FSS OR ITS SUPPLIER`S OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORISED REPRESENTATIVES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE DEEMED TO BE THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION. 

19. Sera4.  IF SERA4 IS NOT FSS UNDER THIS AGREEMENT, IT SHALL BE DEEMED TO BE A THIRD-PARTY BENEFICIARY OF THE PROVISIONS HEREIN THAT SPECIFICALLY REFERENCE SERA4, AND FOR ALL LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS OF LIABILITY AND EXCLUSIONS OF IMPLIED TERMS AND CONDITIONS, HEREUNDER SOLELY FOR THE PURPOSE OF OBTAINING THE BENEFIT OF SUCH PROVISIONS. 

20. Application of Limitations, Exclusions and Disclaimers.  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, DELICT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT. 

21. General.

21.1. Entire Agreement.  This Agreement including any related quote and/or proforma invoice, the License and any non-disclosure agreement between the parties for the Products and Services supplied hereunder, constitutes the entire agreement of the parties with respect to the subject matter thereof.  It supersedes all terms and conditions contained in any requests for quotes, discussions, correspondence or communication of any nature relating to the subject of this Agreement, all of which shall no longer be of any force or effect.  If there is any conflict between these documents the quote and proforma invoice shall take priority over all other documents, followed by these Terms and Conditions of Sale, the License and the non-disclosure agreement in that order.  This Agreement may only be modified in writing signed by the party against whom enforcement of the modification is being sought.

21.2. Press Releases.  Sera4 and FSS reserves the right to make announcements, press releases, publications, presentations and other public statements that reference Customer as a customer using Sera4 Products and Services, without Customer`s prior written approval, provided that Sera4 and FSS does not disclose Customer`s confidential information in the course of such publicity or misrepresent Customer`s relationship with Sera4 or FSS.  Customer agrees that, upon request by Sera4 or FSS, it will provide Sera4 or FSS with a testimonial that Sera4 or FSS may use for the purposes of marketing its Products and Services.

21.2. Governing Law.  The Agreement shall be governed and construed in accordance with the laws of the Republic of South Africa.

 

21.3. Dispute Resolution. Any dispute in terms of this Agreement shall be referred to and determined by arbitration in terms of the rules of the Arbitration Foundation of Southern Africa (“AFSA”) by a single arbitrator agreed between the Lessor and the Lessee or failing agreement as may be appointed by AFSA in its sole discretion. The arbitration shall be held in Cape Town. Nothing in this Agreement shall preclude any party from obtaining urgent relief or an interdict from a court of competent jurisdiction unless the point in question has already been referred to arbitration.

21.4. Severability.  If any court finds any part of this Agreement to be invalid or unenforceable that part shall be severed from this Agreement and its invalidity or unenforceability shall not in any way affect the remaining provisions of this Agreement, which shall continue in full force and effect.

21.5. Surviving Provisions. The respective rights and obligations of the parties under this Agreement that by its contents or nature is intended to survive (including but not limited to the rights and obligations set out in clauses 4, 5, 6, 12, 13, 15, 16, 18 and this clause 21.6) shall survive the termination or expiry of this Agreement to the extent necessary to the intended preservation of such rights and obligations.

21.6. No Authority.  No party shall have authority to or shall hold itself out as having any authority to incur, assume or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of or on behalf of or in any way binding upon the other party.

21.7. Assignment.  Customer may not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of Sera4 or FSS and any purported assignment without such consent shall be null and void and of no effect.  Sera4 and FSS may freely transfer and assign this Agreement or any of its rights or obligations hereunder to any person to whom it sells all or substantially all of its assets. 

21.8. Language of Agreement.  This Agreement may be translated into other languages but the governing version shall be the English version.

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