Terms & Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions:

In this Agreement, the following terms have specific meanings:

  • “Agreement” means these Terms and Conditions together with the Rental Schedule.
  • “Access Cycle” means a period of 30 continuous days of authorised Device usage granted upon receipt of the Initial Payment or a Rental Payment.
  • “Business Day” means any day other than a Saturday, Sunday, or official public holiday in South Africa.
  • “Device” means the mobile device/handset and accessories described in the Rental Schedule.
  • “Initial Payment” means the upfront payment specified in the Rental Schedule, payable prior to delivery of the Device.
  • “Rental Payments” means the recurring monthly payments specified in the Rental Schedule, payable in advance for each Access Cycle.
  • “Rental Schedule” means the document attached to this Agreement specifying Your details, the Device, and the Financial Terms.
  • “Rental Term” means the period required to complete the Initial Payment and the full number of Access Cycles specified in the Rental Schedule.
  • “Replacement Fee” means the reasonable Fair Market Value of the Device at the time of loss, theft, or failure to return, which You are liable to pay as damages for the loss of Our property.
  • “We“, “Us“, “Our” means Kaya Connect (Pty) Ltd.
  • “You“, “Your” means the customer described in the Rental Schedule.

1.2 Interpretation:

  • The singular includes the plural and vice versa.
  • Any reference to one gender includes all genders.
  • Headings are for reference only and do not affect interpretation.

2. NATURE OF AGREEMENT

2.1 This is a Rental, Not a Sale:

You acknowledge that this Agreement is a pure rental agreement. It is not a credit agreement, instalment sale, or finance lease under the National Credit Act 34 of 2005.

2.2 Ownership:

The Device remains Our sole and exclusive property at all times during the Rental Term. You hold the Device only for use under this Agreement.

2.3 No Automatic Transfer:

Ownership of the Device will not pass to You automatically. It will only pass if You accept a specific Purchase Offer as described in Clause 8.

2.4 Acceptance by Conduct:

By taking delivery of the Device, inserting a SIM card, or switching the Device on, You are deemed to have read, understood, and accepted these Terms and Conditions, even if You have not signed the Rental Schedule.

3. DURATION

3.1 Commencement:

The Agreement commences on the date You take delivery of the Device.

3.2 Duration:

The Agreement shall endure for the full Rental Term, which consists of the Initial Payment period (First Access Cycle) and 12 subsequent Access Cycles (totalling 13 Access Cycles), unless terminated earlier in accordance with Clause 10.

The Agreement is intended to continue until We have received the Initial Payment and 12 full Rental Payments, regardless of the calendar time elapsed. However, this is subject to a strict maximum duration of 36 months from the Commencement Date (“The Long-Stop Date”).

If You have not completed all 13 Access Cycles by the Long-Stop Date:

  • 3.2.1 This Agreement will automatically terminate;
  • 3.2.2 You will not be liable for the remaining unpurchased Access Cycles;
  • 3.2.3 You will immediately forfeit any eligibility for a Purchase Offer under Clause 8.2;
  • 3.2.4 You must return the Device to Us immediately in accordance with Clause 8.1; and
  • 3.2.5 The Device will be locked in accordance with Clause 8.3.1, and You will be liable for the Replacement Fee if the Device is not returned.

4. PAYMENTS

4.1 Initial Payment:

You agree to pay the Initial Payment on or before the Commencement Date. This payment covers the first period of usage as defined in the Rental Schedule.

4.2 Rental Payments:

You agree to pay the 12 Rental Payments for the 12 Access Cycles as specified in the Rental Schedule.

4.3 VAT Included:

All amounts specified in this Agreement and the Rental Schedule include Value Added Tax (VAT) at the prevailing rate.

4.4 Due Dates:

Payments must be made on or before the Due Date specified in the Rental Schedule.

4.5 Overpayments:

Should You pay an amount in excess of the Monthly Rental Amount, We have the right to credit such excess to the next payment due rather than refunding it.

4.6 Arrears:

Failure to pay by the Due Date constitutes a breach of this Agreement. In such an event, We will exercise Our right to lock the Device as provided for in Clause 5.4 until payments are brought up to date.

4.7 Pay-As-You-Go Cycles & Extension:

  • 4.7.1 Access Cycle: You acknowledge that each Rental Payment grants You the right to use the Device for a continuous period of 30 days (“Access Cycle”).
  • 4.7.2 Late Payment: If You fail to pay on the Due Date, the Device will lock. When You subsequently make payment, Your new Access Cycle will commence from the date that payment is received.
  • 4.7.3 Term Extension: The Rental Term is defined by the completion of all scheduled Access Cycles, not by the passage of calendar time. Consequently, late payments will automatically extend the calendar end-date of this Agreement until all cycles have been purchased. Because each Access Cycle is purchased separately, the overall calendar length of the Rental Term may exceed 12 months if You make late payments.

5. DEVICE LOCKING, CONNECTIVITY & RESTRICTIONS

By entering this Agreement, You consent to the installation of Mobile Device Management (MDM) software on the Device.

5.1 The “Heartbeat” Connection:

The Device requires an active data connection to communicate with Our security servers. You agree to ensure the Device connects to a mobile data or Wi-Fi network at least once every 30 calendar days. Failure to do so will result in the Device automatically locking until a connection is restored.

5.2 Messaging Consent:

You explicitly consent to receive administrative messages, payment reminders, and security notifications directly on the Device screen via the MDM software.

5.3 SIM Card Policy:

The Device is leased with a specific approved SIM configuration. You may not swap, remove, or replace the SIM card without Our prior written approval. Detecting an unauthorised SIM change may trigger an immediate security lock.

5.4 Remote Locking:

In the event of non-payment, theft, or suspected fraud, We reserve the right to remotely lock the Device. Once locked, the Device will be unusable except for emergency calls (112) and calls to the Kaya Connect Customer Service Centre.

  • Dual SIM Warning: If the Device supports Dual SIMs, You acknowledge that neither SIM slot will function while the Device is locked, regardless of which SIM has data or airtime. The Device will only be unlocked once Your account is fully up to date.

5.5 Tampering:

Any attempt to bypass, modify, or remove the MDM software is a material breach. Furthermore, You may not “root” the Device’s operating system. Doing so voids the manufacturer’s warranty and will result in the Device being permanently locked (bricked) and You being immediately liable for the Replacement Fee.

5.6 Technical Restrictions:

You acknowledge that the Device has specific software restrictions to protect Our property. You agree that:

  • No Factory Reset: You may not perform a “Factory Reset” or “Hard Reset” on the Device, as this may trigger a permanent security lock.
  • No Unapproved Software: You may not install third-party ROMs, firmware, or unapproved operating systems.
  • No Sideloading: You may strictly only install applications from the official Google Play Store.
  • Breach: Violation of these restrictions constitutes material tampering under Clause 5.5 and may render You liable for the Replacement Fee.

6. RISK, LOSS, THEFT & DAMAGE

6.1 Transfer of Risk:

Risk of loss, theft, destruction, or damage passes to You immediately upon delivery of the Device.

6.2 NO INSURANCE PROVIDED:

YOU ACKNOWLEDGE THAT WE DO NOT PROVIDE INSURANCE OF ANY KIND. IF THE DEVICE IS LOST, STOLEN, OR DAMAGED BEYOND REPAIR, YOU WILL BE LIABLE FOR ANY RENTAL PAYMENTS ALREADY DUE UP TO THE DATE OF THE INCIDENT, PLUS THE REPLACEMENT FEE (FAIR MARKET VALUE) OF THE DEVICE.

UPON RECEIPT OF THE FULL REPLACEMENT FEE AND ANY ARREARS DUE UP TO THE DATE OF THE INCIDENT, THIS AGREEMENT WILL TERMINATE WITH IMMEDIATE EFFECT, AND YOU WILL NOT BE LIABLE FOR ANY FUTURE RENTAL PAYMENTS.

6.3 RICA & Police Reporting:

In the event of theft or loss, You are legally required under the Regulation of Interception of Communications Act (RICA) to report the incident to the South African Police Service (SAPS).

  • You must report the theft to SAPS as soon as reasonably possible.
  • You must provide Us with the SAPS Case Number immediately upon reporting.

7. DEFECTS, REPAIRS AND MAINTENANCE

7.1 Condition on Delivery & Warranty:

  • 7.1.1 Initial Inspection (7 Days): You must inspect the Device immediately upon delivery. You agree to notify Us within 7 days of any visible damage (e.g., cracked screen, scratches, dented casing) or missing accessories. If You fail to report visible damage within this period, it will be deemed that the Device was received by You in good cosmetic condition.
  • 7.1.2 Implied Warranty of Quality (6 Months): In accordance with the Consumer Protection Act, We warrant that the Device is free from material defects. If a manufacturing defect (e.g., software failure, internal hardware fault) manifests within 6 months of delivery, You may return the Device to Us for repair, replacement, or refund, provided the defect is not due to Your misuse, abuse, liquid damage, or gross negligence.

7.2 Assessment of the Device:

Once the Device is returned or inspected, We will determine whether the issue is due to:

  • A manufacturing defect; or
  • Damage, misuse, negligence, or any cause not covered by the manufacturer warranty.

7.3 Manufacturing Defect (No Cost to You):

If We determine that the Device has a manufacturing defect:

  • We will repair or replace the Device at no cost to You;
  • You will not be charged Rental Payments for the period that the Device is physically in Our possession for repair or replacement; and
  • The Rental Term will be extended by the same number of days that the Device was in Our possession.

7.4 User Damage or Non-Warranty Damage (Your Account):

If the Device is damaged due to misuse, drops, liquid damage, neglect, unauthorised repairs, or any other non-factory cause:

  • You remain liable for Rental Payments during the repair period;
  • We may offer a repair quote, or You may elect to use an approved repairer;
  • Repairs are for Your account, and We may require You to settle all arrears before the Device is returned to You.

7.5 Customer Not Contactable / Failure to Return Device:

If You do not provide the Device to Us for assessment within 10 Business Days of Our request, the Device will be treated as “functioning” and Rental Payments will continue as normal.

7.6 No Liability for Data:

Before giving the Device to Us, You must back up all data and remove all security locks or passwords. We are not responsible for any loss of data or content during repairs or replacement.

7.7 Issues Not Considered Defects:

The following are not manufacturing defects:

  • Forgotten PINs, passwords, or Google Account credentials;
  • Damage caused by third-party software, rooting, or MDM removal attempts;
  • Performance issues caused by low storage, third-party apps, malware, or non-manufacturer accessories.

8. END OF RENTAL & OPTIONS

8.1 Default Obligation (Return):

Upon the expiry of the Rental Term, You are legally obliged to return the Device to Us in good working order (fair wear and tear accepted).

8.2 Purchase Offer (Optional):

Prior to the expiry date, We may, in Our sole discretion, offer to sell the Device to You at its Fair Market Value (The “Purchase Offer”).

  • 8.2.1 Procedure: If We elect to make such an offer, We will communicate the price and terms to You in writing.
  • 8.2.2 Acceptance: To exercise this option, You must confirm acceptance and make payment of the purchase price.
  • 8.2.3 No Automatic Debit: You acknowledge that the purchase price will not be automatically debited from Your account unless You explicitly authorise this specific transaction at the end of the Rental Term.
  • 8.2.4 Transfer: Ownership will only transfer once the purchase price is paid in full.

8.3 Consequences of Failure to Return:

If You do not accept a Purchase Offer AND fail to return the Device to Us within 5 Business Days of the Rental Term expiry:

  • 8.3.1 Locking: The Device will be permanently locked and rendered unusable.
  • 8.3.2 Replacement Fee: You agree that We may immediately charge Your account a Replacement Fee equal to the Fair Market Value of the Device as liquidated damages for the loss of Our property.

9. USE AND CARE

9.1 You must use the Device only for lawful purposes and in accordance with the manufacturer’s specifications.

9.2 You may not sell, pawn, encumber, or transfer possession of the Device to any third party during the Rental Term.

9.3 No Transfer of Agreement: You may not transfer (cede or assign) any of Your rights or obligations under this Agreement to any other person without Our prior written consent.

10. TERMINATION & CANCELLATION

10.1 Early Cancellation by You:

You may cancel this Agreement at any time by giving Us 20 Business Days’ written notice. You must return the Device to Us. You will be liable for all amounts due up to the date of cancellation plus a reasonable cancellation penalty as prescribed in the Consumer Protection Act.

10.2 Breach by You:

If You are in default of any payment or breach any term of this Agreement, We may give You written notice to rectify the breach within 20 Business Days. If You fail to rectify the breach within this time, We may cancel the Agreement, take possession of the Device, and claim all outstanding amounts and damages.

11. PRIVACY (POPIA)

11.1 You consent to Us processing Your Personal Information for the purposes of administering this Agreement, credit vetting, and fraud prevention.

11.2 You acknowledge that the MDM software collects location and usage data solely for asset security and recovery purposes.

11.3 Data Wipe & Resale:

Before returning the Device for any reason (including repair or end of term), You must remove all Personal Information. We are not responsible for any loss of Personal Information. You agree that We may sell the Device upon its return to Us in the same condition as it was received. We will not be liable for any claims regarding data left on the Device.

11.4 Data Backups:

You are solely responsible for backing up Your Personal Information (photos, contacts, files) regularly. We are not liable for any loss of data caused by device malfunction, theft, remote locking, or the return of the Device.

12. COMPLAINTS, QUERIES AND CONSUMER RIGHTS

12.1 How to Contact Kaya Connect:

If You have a question or complaint about Your Device, Your payments, or this Agreement, please contact Us first so We can assist You quickly. We will acknowledge Your complaint within 2 Business Days and aim to resolve it within 10 Business Days.

  • Email: info@kayaconnect.co.za
  • Business Hours: Monday–Friday, 08:00–17:00

12.2 If You Are Not Satisfied With the Outcome:

If You are unhappy with Our response, or if Your complaint has not been resolved within a reasonable time, You may escalate the matter to the relevant consumer bodies listed below.

12.3 Consumer Goods and Services Ombud (CGSO):

You may refer any complaint related to goods, services, repairs, service levels or contractual terms to the CGSO (www.cgso.org.za).

12.4 National Consumer Commission (NCC):

If You believe Your consumer rights under the Consumer Protection Act 68 of 2008 have been infringed, You may lodge a complaint with the NCC (www.thencc.gov.za).

12.5 Your Rights Under the CPA:

Nothing in this Agreement limits or excludes any rights You may have under the Consumer Protection Act (CPA). If any part of this Agreement is found to be inconsistent with the CPA, the CPA will prevail.

13. GENERAL

13.1 Certificate of Indebtedness:

A certificate signed by any of Our managers specifying the amount You owe Us shall be sufficient proof of the amount of Your debt for the purpose of obtaining judgment in any court. You do not need to prove the appointment of the person signing the certificate.

13.2 Transfer of Rights:

You agree that We may transfer (cede and assign) some or all of Our rights and obligations under this Agreement to any third party (such as a bank or investor) without Your further consent.

13.3 Governing Law & Jurisdiction:

This Agreement is governed by the laws of the Republic of South Africa. You hereby consent to the jurisdiction of the Magistrate’s Court in respect of any legal proceedings arising from this Agreement, even if the claim amount exceeds the ordinary jurisdiction of the Magistrate’s Court.

13.4 Notices & Domicilium:

You choose the physical address, email address, and mobile number set out in the Rental Schedule as Your domicilium citandi et executandi. You agree that We may send formal legal notices to You via email or SMS to the contact details provided in the Schedule.

13.5 Limitation of Liability:

Subject always to Your non-excludable rights under the CPA (Consumer Protection Act), We will not be liable to You, or any third party, for any losses that may be suffered as a result of the Device being locked due to non-payment or breach, or Your inability to use the Device due to defects or software restrictions.

  • Consequential Loss: To the extent permitted by law, We shall not be liable for any indirect or consequential loss or damage (including loss of data, profits, or business) arising from the use or locking of the Device.

13.6 Whole Agreement & Non-Variation:

This document constitutes the entire agreement between the parties. No variation, amendment, or suspension of any of the terms of this Agreement (including this clause) shall be valid or binding unless recorded in writing and signed by both parties. No verbal agreements or representations by agents shall be binding.

13.7 Order of Precedence:

In the event of any conflict or inconsistency between the provisions of these Terms and Conditions and the Rental Schedule, the provisions of the Rental Schedule shall prevail to the extent of the inconsistency.

13.8 No Waiver:

If We do not enforce a right immediately (e.g., allowing late payment), it does not mean We have waived that right. We may enforce any right at any time.

13.9 Severability:

If any clause of this Agreement is found to be illegal or unenforceable, it will be severed from the Agreement, and the remaining clauses will continue to be valid and binding.

13.10 Amendments:

We reserve the right to amend these Terms and Conditions from time to time. We will provide You with reasonable written notice (via email or SMS) of any material changes. Continued use of the Device after such notice constitutes acceptance of the amended Terms.