Terms and Conditions of Service

APPLICATION OF THESE TERMS

The smsweb messaging service (“the Service”) operated by smsweb (Pty) Ltd (“smsweb”) is a service in which SMS, Email and Data Messaging are used as a communication tool between an institution (“Institution”) and its members, students or parents/guardians (“Parents”) of its learners (and as more fully described in paragraph 2 below). The Service is provided subject to these terms and conditions of service (“TOS”), which apply to all users of the Service, except where specified.

By completing the registration process and upon the subsequent issuance of a login ID and password to access the smsweb web site or mobile application (“Site”) and Service, you agree that you have read and agreed to be bound to these TOS. smsweb may from time to time amend the TOS after giving you 7 days’ notice of the amended terms by email.

DESCRIPTION OF SERVICE

The Service allows you, the Institution, to send SMS, Emails or Data Messages from the smsweb Site to utilise certain other services that are introduced from time to time.

Hours of Service

Usage of the Service for institutions is available 24 hours of the day, 7 days per week, during the official South African Government Education Department school terms. Availability of the Service may be limited outside of these school terms, as system maintenance, upgrades etc. take place at these times.

Duration of this Agreement

The Service is provided on a per academic year basis, and shall endure for the remainder of an academic year, but not exceeding a maximum period of 12 (twelve) months from the date of your acceptance of the TOS, subject to the further provisions of the TOS.

Cost of service (Pay per SMS Service)

The Pay per SMS Service is charged at a rate of 15c. (Fifteen cents – VAT inclusive) per SMS, with SMS’s being purchased in multiples of 1,000, and remaining active for a period of 12 months from date of purchase. In addition, an annualized subscription fee will be charged.

The annual subscription fee for new schools is initially set at 80c (eighty cents -VAT inclusive) per number per month, but is reviewed annually, as it is determined as a function of a school’s size and SMS usage against average of similar schools. These amounts shall be prepaid to smsweb on presentation of smsweb invoice before SMS credits are allocated.

Quoted subscription fees to schools are fixed for a current year, and any adjustment in the subscription fee will only be applicable to the next financial year, and communicated to a school for acceptance in advance. smsweb reserves the right to revise prices previously quoted for either service at any time before an agreement is confirmed. If prices have changed prior to your agreement starting you will be given the correct current prices at the time of booking.

YOUR REGISTRATION OBLIGATIONS

You agree to provide true, accurate, current and complete information about your Institution and members/students/parents as prompted by the Service’s registration form (such information being the “Registration Data”); and maintain and promptly update the

Registration Data to keep it true, accurate, current and complete via the administration forms available via the Site. If you provide any information that is untrue, inaccurate, not current or incomplete, or smsweb has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, smsweb has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

PRIVACY POLICY

smsweb values the privacy of all its subscribers and their Parents and has in place a privacy policy (click here to view privacy policy).

smsweb will not use or disclose any personal information about your Institution or Members/Students/Parents or its use of the Service, nor monitor or edit its contents, without your prior written permission unless smsweb has reason to believe that such action is necessary to conform to legal requirements or comply with a legal procedure, or that such information is in the public domain.

You agree that smsweb may use your personal information in order to provide the service and may access your account, including its contents, as stated above or to respond to service or technical issues.

You also agree that smsweb may provide aggregate demographic information to third parties and that the aggregate information may include non-identifying components of your

Institution or of the Member/Student/Parent information.

SUBSCRIBER ACCOUNT, PASSWORD AND SECURITY

You must ensure that your password and account name are kept secure and confidential and not revealed to any unauthorized person outside of your Institution. Furthermore, you may not permit any other Institution to use your account. You may request your password to be changed at any time by telephonically requesting such a change from smsweb. You agree to notify smsweb immediately of any unauthorized use of your account or any other breach of security.

USE OF THE SERVICE

As a condition of your use of the Service, you agree that you will not use the Service for any purpose that is unlawful or prohibited by these terms.

The Service is provided to Institutions only and not for personal use. You agree to use the

Service only to send and receive institutionally relevant messages. Any unauthorized commercial use of the Service, or resale of the Service, is prohibited. You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account or password, including the content of your transmissions through the Service. Without limiting the generality of the aforegoing, you agree not to:

  • use the Service in connection with any unsolicited (including obscene, indecent, or unlawful) messages; defame, abuse, harass, stalk, threaten or otherwise violate the rights (such as rights of privacy and publicity) of others;
  • create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message;
  • interfere with another member’s use and enjoyment of the Service or another individual’s or entity’s use and enjoyment of similar service.

smsweb has no obligation to monitor the Service or any user’s use thereof or retain the content of any user session. However, smsweb reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.

MODIFICATIONS TO SERVICE

smsweb reserves the right to modify the Service, either in general or for any particular school or institution and shall not be liable to you or any third party should smsweb exercise its right to modify the Service.

smsweb reserves the right to modify the Service on a technical basis and to contact parents directly to inform them of technical updates such as Apps and payment gateways; smsweb will endeavour to always seek permission from an institution before doing so via telephone and email, however in the event we have been unable to reach anybody at the school a message will be sent.

Any direct communication between smsweb and parents will only be related to technical updates and will never be in the form of advertising for goods and services.

SPONSORSHIP AND ADVERTISING

From time to time sponsorship (in full or in part) may be provided by third parties for the Service, either to a specific school, groups of schools or to all schools. In such cases the third parties involved may require marketing access to the schools and/or their parents, in which case smsweb reserves the right to modify, alter or enhance the Service to fulfill said requirements. In return, each school that receives a sponsorship agrees to grant the sponsoring party/s access to its parents for marketing purposes.

smsweb reserves the right to place advertising on the smsweb mobile application platform but will not send any advertising in the form of SMS to the school database. All advertising will be of relevant content and advertised in a non-invasive manner. smsweb will never advertise sensitive content of an adult, alcoholic, tobacco, political motivated or religious nature. All advertising will be done with the intention of assisting in lowering costs for the school over time.

TERMINATION

You agree that smsweb, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use, inappropriate and/or excessive use, or if smsweb believes that you have committed a breach of the TOS. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that smsweb may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. smsweb may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, without notice. Further, you agree that smsweb shall not be liable to you or any third-party for any termination of your access to the Service or for any discontinuance in providing the service.

This agreement will be valid for a minimum period of 1(one) year, referred to as the initial period. This agreement shall continue for the initial period, where after it shall be automatically renewed for a further period of 12(twelve) months unless terminated by either party on no less than 60(sixty) days written notice to the other party prior to the end of any such period.

SOFTWARE LICENCE

smsweb grants you a personal, non-transferable and non-exclusive right and license to use the object code of any necessary software provided by smsweb and used in connection with the service(“Software”) on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the

Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by smsweb for use in accessing the Service.

LIMITATIONS OF LIABILITY

To the extent permitted by law, smsweb shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if smsweb has been advised of the possibility of such damages), resulting from:

  • the use or the inability to use the Service;
  • the cost of procurement of substitute goods and services resulting from any goods, data,
  • information or services obtained or messages received or transactions entered into through or from the Service;
  • unauthorized access to or alteration of your transmissions or data;
  • statements or conduct of any third party on the Service; or any other matter relating to the Service.

EXCLUSIONS OF WARRANTIES

To the extent permitted by law, all warranties, conditions and representations about the

Service, the availability of the Service for access and use, the products and services advertised, offered to be supplied or supplied via the Service and the information provided on the Service are excluded. Without limiting the generality of the aforegoing, smsweb excludes any warranty that the Service will be uninterrupted or error-free; that defects will be corrected, that the Service or the server that makes it available are free of viruses or other harmful components, that the use or results of the use of the Service, or that the materials made available as part of the Service, will be correct, accurate, timely or otherwise reliable.

INDEMNIFICATION

You indemnify and hold harmless smsweb, its subsidiaries, affiliates, directors and employees, from and against all actions, claims, suits, demands, damages, liabilities, costs or expenses, including reasonable legal fees, arising out of or in any way connected to the use of the Service by you or someone using your username and password.

INTELLECTUAL PROPERTY

smsweb and smsweb.co.za are trademarks of smsweb (Pty) Ltd. All contents of the service are Copyright © 2010.

You acknowledge and agree that the Service and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws.

You may make a copy of the content for your own personal, non-commercial use only, provided that you keep all copyright and other proprietary notices intact. You further acknowledge and agree that content contained in sponsorship advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by smsweb or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on such proprietary and confidential information, in whole or in part.

APPLICABLE LAW

These terms of service are governed by the laws in force in the Republic of South Africa and the parties agree to be bound by the non-exclusive jurisdiction of the Courts of South Africa.

In the event that any portion of this Agreement is deemed by a court to be invalid, the remaining provisions shall remain in full force and effect.

DISPUTE RESOLUTION

If any dispute of any nature whatsoever shall arise between the you and smsweb on any matter provided for in, or arising out of the Services and/or the TOS, including the validity thereof, that dispute may be submitted to and decided by arbitration. The Arbitration shall be initiated by either party giving written notice thereof to the other, and shall be referred to the

Arbitration Forum of Southern Africa (“AFSA”). Proceedings shall be conducted in Cape Town in accordance with the standard terms and conditions, and the summary procedure rules, then applicable in the Forum; provided that should the Forum not be in existence when a dispute arises, the dispute shall be referred to arbitration in Cape Town, in accordance with the provisions of the Arbitration Act No 42 of 1965 or any statutory modification or re-enactment thereof.