TERMS AND CONDITIONS FOR THE USE OF THE AURA MOBILE PLATFORM (“THE AURA PLATFORM”) AND THE SERVICES OFFERED VIA THE AURA PLATFORM BY AURA PROPRIETARY LIMITED AND/OR RAPPID RESPONSE PROPRIETARY LIMITED
Aura App (Proprietary) Limited ("Aura") and rAPPid Response (Proprietary) Limited ("rAPPid") ("we", "us" or "our") are committed to providing service of the highest standard to all who access the Aura Platform, on an app which provides the said Aura Platform (“the App Holder”) or whether it is an individual customer ("the User", "the recipient", "you" or "your") and who access the services provided through Aura by third-party armed response service providers co-ordinated by rAPPid.
The terms and conditions of use contained below (“the Terms”) shall govern your use of the Aura Platform as well as any other person using your account through you together with all services associated therewith as well as the relationship between Users, Aura and/or rAPPid.
By accessing and using the Aura Platform, 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 Aura Platform and your election to access display, use or download the Aura Platform on the App Holder shall constitute your acceptance of the Terms.
We shall, from time to time at our sole election, be entitled to modify these Terms and your continued use of the Aura Platform, 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 Aura Platform shall be deemed to signify your acceptance of the amended Terms.
We reserve the right at any time to change or discontinue, without notice, any aspect, feature or service offered by way of the Aura Platform.
The Terms shall apply, with such contextual changes as may be necessary, to Users who use Aura through a third-party integration onto Aura’s ("the Integration") and to Users, who download Aura directly from an App store with the intention of utilising Aura for their personal, non-commercial use.
These Terms govern all aspects of your access to and use of the Aura Platform as well as any associated applications, websites, content, products and/or services.
Your election to access and use the Aura Platform and the services provided through or via the Aura Platform creates a binding contractual relationship between you and us, governed in all respects by these Terms (as may be amended from time to time).
3. Use of Aura
Aura supplies a technology-based platform which allows users to download the application 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 Aura Services").
If the Aura Services are stipulated by the specific App through which you access the Aura Platform, to be accessible only within a specified geographic area, for example, Fourways, if using Aura through the Aura Platform, Aura shall only provide responses in that applicable area and shall not be obliged to provide responses in any other geographical area.
The User acknowledges that Aura will be providing the Aura Services on the Aura Platform in circumstances which by its very nature, may be dangerous and potentially life threatening to the User. The Aura 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 Aura 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.
Further to the above, as will be dealt with more fully below, Aura, 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 Aura Platform.
You agree that in using the Aura Platform, you will comply with the following:
Without separate written permission from Aura in advance, you may not:
reuse or “scrape” Aura’s data for use in another service or website;
attempt to circumvent any controls or limitations Aura and/or the Aura Platform has placed on User’s ability to access the App or information on the Aura Service, including by means of robot exclusion headers;
use any bots, scrapers, brute-force tools, or other automated methods for accessing, slowing down, or disabling the Aura Services or otherwise interfering with the proper function of the Aura App;
frame, “mirror”, or otherwise incorporate any part of the Aura Service into any other App, website or service.
In addition to the aforegoing, you may not use the Aura Platform, without written consent and/or prior arrangement, for commercial purposes including but not limited to, using the Aura Services to provide security and/or armed response services to the public at a mark-up, the Aura Services are intended to be provided for the personal non-commercial use of the Users only and for no other purpose.
No information whether oral or written or digitally obtained or displayed, obtained by the User from Aura and/or the Aura Platform will create or be deemed to create any warranty whatsoever in relation to such information, its use, intended use of the Aura Services.
4. Fair Usage
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 doing so, will implement the following fair usage policy:
All users will be limited to 4 (four) standard Responses per calendar year which may be used by you at the ordinary applicable tariff ("Response Limit").
Once you have used your Response Limit, Aura may either, depending the circumstances and availability of Responders, either:
Refuse to provide further Responses to you; or
Provide Responses to you at a substantially higher cost than its ordinary per Response charge. This surcharge will be a minimum of 10x (ten times) the ordinary Response charge depending on the number of further Responses utilised following exceeding the Response Limit.
By using Aura, you hereby agree to Aura’s fair usage policy and hereby indemnity Aura, and rAPPid against any harm, injury, death, loss, or damage of whatsoever nature and howsoever arising should Aura refuse a response activated by you or through your account through the Aura Platform.
5. Third Party Responders
As part of the Aura Services, rAPPid has sourced a network of third-party Responders (defined elsewhere in these Terms as “the Responders”) including independent armed response service providers who have been sub-contracted by rAPPid to provide their services to the Users, on an ad hoc basis using the Aura Platform.
Whilst Aura 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 Aura does not itself provide any armed response services and relies upon its Responder network who are not employees or agents of Aura and operate as independent contractors utilising Aura’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.
The provisions of armed response services shall at all times be dependent upon the availability and proximity of Responders by using Aura, you hereby acknowledge and agree that Aura, its 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 Aura Platform.
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 Aura Platform.
Subject to your compliance with these Terms, Aura grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to:
Access and use the Aura Platform on your chosen Device/s for the sole purpose of the Aura Services; and
Access and use any content, information and related materials that may be made available through Aura and/or the Aura Platform and/or the Aura Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Aura.
All payments in terms of or arising out of your use of the Aura Platform and/or the Aura Services, shall be dependent on that manner in which you have access the Aura Platform.
In the event that the User has access to the Aura Platform through an App Holder, the terms of payment such be finalized between the customer and the App Holder.
Aura shall then bill the App Holder directly based on the number of customers using the Aura Platform through the App Holder and all fees shall be charged free of bank exchange, commission and all other deductions to Aura.
In the event that the user has downloaded the Aura Platform directly through Aura, then such customer shall be subjected to the costs as stipulated on the Aura Platform.
The prices quoted by Aura 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 Aura is used, the number of Users using the Aura Platform at any given time, time of day and/or time of the year, in accordance with a standard pricing scale. In addition, all fees shall be negotiated directly between Aura and the App Holder.
8. Circumstances beyond the Parties Control
If Aura, rAPPid 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 effected Party.
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.
9. Copyright, Intellectual Property, and Trademarks
The Aura Service and/or the Aura Platform and all information, data materials and other content available through the App, including, but not limited to, the App name, website domain name, the Aura 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 Aura and as the case may be, its associates, suppliers and licensors and are protected by South African and international intellectual property laws. Aura 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.
Aura and the Aura logo(s) are trademarks of Aura 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 Aura or the relevant company owing 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.
You may access, display, download and otherwise use the current and future content of the 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 Aura, and/or rAPPid and/or their associated companies damage.
The use of the Aura Platform and access to the Aura 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 Aura 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 Aura Platform 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 Aura 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.
The User hereby acknowledges and agrees that Aura shall be entitled but not obliged to establish the authenticity of any communication transmitted to it by way of the Internet or through the App which purports to emanate from such user.
The User agrees that all instructions, consents, commitments, and any other communications which purport to emanate from the User and which are sent to Aura by way of the internet or through the App and/or the Aura Platform 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 Aura and the User will be bound by such details with no liability whatsoever attaching to Aura in regard thereto.
The User waives any rights the User may have or obtain against Aura arising directly or indirectly from any loss or damage of whatsoever nature which the User may suffer as a result of the fact that Aura acts on the User’s instructions or instructions purported to emanate from the User via the Aura Platform.
The User agrees to and hereby indemnifies and holds Aura 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 Aura has acted on the User’s instructions or instructions which purport to emanate from the User via the Aura Platform.
11. System Availability
Aura shall use its reasonable best endeavours to keep the system available and maintain full system functionality at all times. 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 Aura to maintain perpetual system availability and therefore the Aura Service and/or the Aura Platform availability and should, for any reason whatsoever, Aura be unable to maintain the availability of the Aura Services and/or the Aura Platform, the User agrees that Aura 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 Aura Service and/or the Aura Platform.
Aura reserves the right to discontinue providing the Aura Services and/or the Aura Platform without notice to the User.
12. Warranties, disclaimer, and exclusion of liability
The User warrants that every instruction and all information given by the User to Aura shall be accurate, true and in all respects correct. Aura makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding, without limitation, the App Holder, 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 Aura or the suitability of any of the Aura Services for a particular purpose or the effectiveness of any security or encryption facilities.
Aura does not warrant that the functionality provided by the Aura Platform will be uninterrupted or error free, or that the Aura Platform or the server that makes it available are free from viruses or other harmful components.
Aura, its 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 Aura Platform or the Aura Services, or as a result of or which may be attributable (directly or indirectly) to the User’s use or reliance on Aura, including but not limited to:
Any information provided thereon;
The Aura Services provided by Aura;
Third party services provided via the Aura Platform including that provided by the Responders;
Any viruses that may infect your device or other property on account of your access to and/or use of the App Holder and/or website;
The efficacy of any security or encryption facilities; or
By downloading, utilising, accessing and operating the Aura Platform, you hereby expressly acknowledge and agree:
The Aura Services provided by Aura, rAPPid 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;
The Aura 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 Aura in relation to any services rendered by Aura and/or rAPPid and/or third-party Responder to the recipient.
Aura 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 Aura and/or the Responders or any of one of them and the recipient hereby indemnifies Aura 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 App Holder through your account, or any third-party, arising from or in connection with any contract or relationship between you and Aura.
In the event that it is found by a tribunal, or arbitrator court, that Aura is liable in law to you or any third-party arising from Aura and/or any of the Aura 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 Aura 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.
The parties agree, that the limitation of indemnity contained in this agreement is an irrevocable limitation and shall take precedence over any other indemnity or limitation contained in any other agreement concluded by the recipient.
It is hereby recorded and agreed that Aura accepted no responsibility whatsoever to you or any of its Users including but not limited to Users using the Aura Platform through the App Holder, for the functions of the Aura Platform or the integration thereof including but not limited to:
Any malfunction in the Aura Platform;
Any malfunction in the Recipient’s app;
Any malfunction in the Responder’s app; and
Any malfunction in relation to integration.
These Terms will continue to apply until either the User or Aura terminates the Aura Services or access to the Aura Platform to the individual User. If the customer had connected to the Aura Service or accessed the Aura Platform using a mobile phone you may terminate the Aura Services at any time by deleting the App from your mobile phone, de-activating your Aura Account and no longer using the Service and/or the Aura Platform or by sending written notice to the App Holder, who will then in turn advise Aura of the customer’s termination.
Aura may suspend a User’s access to the Aura Service and/or suspend a User’s access to the Aura Platform and/or terminate the User’s continued use of the App at any time, with or without notice to you:
If the User is in breach of any other provision of these Terms or if you make unauthorized use of the Aura Service and/or the Aura Platform;
if Aura elects at its discretion to cease providing access to the Aura Service and/or the Aura Platform in the jurisdiction where the User resides or from where the User’s attempting to access the Aura Service and/or the Aura Platform; or
in other reasonable circumstances as determined by Aura at its discretion.
Where a User has access to the Aura Platform through an App Holder, the termination of such access shall be determined by the App Holder, and as a result the customer and the App Holder shall indemnity Aura, and rAPPid against any harm, injury, death, loss, or damage of whatsoever nature and howsoever arising during the process of their access to the Aura Platform being terminated.
The provisions of these Terms that are intended by their nature to survive the termination of the Aura Services and/or the Aura Platform will survive the termination thereof.
This clause 15 is a separate, divisible agreement from the rest of the Terms and shall-
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. Aura and the User intend that any such issue shall be subject to arbitration in Terms of this clause 15; and
remain in effect subsequent to the termination of the User’s use of the Website and/or cessation of the service.
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 Website or arising from these Terms including, without limitation, any dispute concerning-
the existence of these Terms apart from this clause 15;
the interpretation and effect of these Terms;
the Parties’ respective rights or obligation under these Terms;
the breach, termination or cancellation of these Terms or any matter arising out of such breach, termination or cancellation; and/or
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;
shall be decided by arbitration as set out in this clause 15.
Aura, rAPPid 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.
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.
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.
The proceedings in the arbitration shall as far as practicable take place in private and be kept confidential.
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.
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.
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.
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.
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.
16. Ending a Session
You must leave the Aura Platform once you have finished using the Aura Services. If you do not do this, unauthorised transactions may result, for which you will be liable, Aura accepts no responsibility or liability for any circumstance where the User fails, and/or neglected to end a session on the Aura Platform.
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.
These Terms constitute the whole agreement between the User and Aura as to the subject matter hereof and no agreement, representations or warranties between the User and Aura other than those set out herein shall be binding on Aura or the User.
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. Aura 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.
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.
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.
Aura, rAPPid 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 the obligations of signatory hereto, in terms of these Terms.