Due to the nature of the Short Message Service (SMS), Always Active Technologies (Pty) Ltd cannot be held responsible for risks incurred through the use of any of the Always Active Technologies (Pty) Ltd SMS products or services, as well as all risks associated with data security, privacy, availability and reliability of message processing and transmission. Thus, the customer is fully and exclusively liable for any and all risk resultant from the use of the said Product (s) or Service(s).
2. Limitation of Liability
The Always Active Technologies (Pty) Ltd SMS Services and all information, products and other content (including third party information, products and content) provided by, included in or accessible from the Always Active Technologies (Pty) Ltd web site, are provided "as is" and are subject to change at any time without notice to the customer. To the fullest extent permitted by law, Always Active Technologies (Pty) Ltd disclaims all representations and warranties (express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, and non-infringement of proprietary rights) as to the services and all information, products and other content (including third party information, products and content) provided by, included in or accessible from the Always Active Technologies (Pty) Ltd web site. In no event shall Always Active Technologies (Pty) Ltd be liable for any damages whatsoever, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, unauthorized use, performance or non-performance of the Always Active Technologies (Pty) Ltd products or services, even if Always Active Technologies (Pty) Ltd has been advised previously of the possibility of such damages and whether such damages arise in contract, negligence, delict, under statute, in equity, at law or otherwise.
3. Access to the Service
Always Active Technologies (Pty) Ltd shall use all reasonable endeavors to ensure that the Services are available on a 24 hour, 7 days a week basis. The customer is responsible for maintaining all devices and services necessary to enable access to the relevant Always Active Technologies (Pty) Ltd Service and the use of such Services.
3.1. Nature of Services
3.1.1. Message Delivery
The customer acknowledges and accepts that the provision of the relevant Always Active Technologies (Pty) Ltd SMS services are enabled through Always Active Technologies (Pty) Ltd agreements and relationships with various GSM Service Providers and their agreements with Network Operators in various countries and Always Active Technologies (Pty) Ltd is therefore only able to act under the conditions imposed through such agreements. A list of relevant SMS Roaming Partners, from time to time, is available on the Always Active Technologies (Pty) Ltd sms website. The delivery of SMS messages is subject to the availability and performance of the respective GSM Network Service Provider and the Roaming Partner's technical systems and network and cannot be guaranteed by Always Active Technologies (Pty) Ltd. SMS messages submitted through the relevant Always Active Technologies (Pty) Ltd sms service will be transferred to the recipient's mobile terminal within times ranging from a few seconds to a few minutes depending on the conditions prevalent at the time of submission. Also, message delivery performance is subject to the recipient's mobile terminal being switched on and located within an area that is acceptably covered by the recipient's telecommunications service provider. Certain Roaming Partner's prevent their subscribers from receiving SMS messages, for reasons beyond Always Active Technologies (Pty) Ltd control, and in such cases the delivery of SMS messages is not possible.
3.1.2. Message Validity
SMS messages, submitted from a Always Active Technologies (Pty) Ltd sms service for transmission, shall have an assigned validity period of 24 hours during which time the GSM Service Provider shall, at regular intervals, attempt to effect delivery of the SMS messages unless an alternative validity period is selected by the client, where available. Should the validity of the message expire prior to successful delivery, all unsent messages shall be discarded without guaranteed notice to the customer.
3.1.3. Message Delivery
The eventual delivery of SMS messages is largely dependent on the effective functioning of the recipient's mobile terminal and the relevant GSM network, systems and infrastructure. Consequently, Always Active Technologies (Pty) Ltd cannot guarantee the delivery of messages that may be affected by possible network outages and errors on the part of any GSM network and Always Active Technologies (Pty) Ltd shall not refund the customer for undeliverable messages. Always Active Technologies (Pty) Ltd will however make every effort to ensure that all messages are delivered. The sender will however be charged for all SMS messages delivered to the respective GSM Networks.
3.1.4. SMS Health Reports
Always Active Technologies (Pty) Ltd reserves the right for a single "Health Report" SMS to be sent from the Clients Gateway to a Gateway held in South Africa, once a month, for reporting and health status checking for the Clients benefit.
3.2. Changes to Service Offerings and Content
Always Active Technologies (Pty) Ltd reserves the right to modify, enhance, discontinue and further develop the relevant Product(s) or Service(s) or its product or service offerings at any time without prior notice.
4. Customer's Responsibilities and Liability
4.1. SMS Code of Practice
Customers shall be responsible for familiarizing themselves and adhering to the SMS Code of Practice at all times. This code may change from time to time and is available here.
4.2. Malicious Disruptions and Damages
Should the customer be implicated of malicious disruptions or damages to any of Always Active Technologies (Pty) Ltd Product (s) or Service(s), the customer shall be liable for all damages (whether direct or indirect) and associated costs resultant from such malicious activity.
4.3. SMS Content
The customer accepts full responsibility for the content of SMS messages transmitted by means of any of Always Active Technologies (Pty) Ltd Product(s) or Service(s) and agrees not to submit any SMS messages for transmission via the Always Active Technologies (Pty) Ltd Product(s) or Service(s) / GSM Network Service Providers, where the content whereof is improper, immoral or unlawful or which contains any violent, offensive, discriminatory, illegal or pornographic material. The customer must reasonably ensure that the content of SMS messages does not cause disturbance or harassment to the recipient thereof.
Always Active Technologies (Pty) Ltd and the respective GSM Network Service Providers are bound to ensure the delivery of a valued service and will not tolerate SPAMMING (the sending of unsolicited messages) of SMS messages by the customer. Therefore the customer is not permitted to send messages to recipients who have advised that they do not wish to receive SMS messages of a particular or any kind. Failure to abide by the provisions of this clause will result in the suspension of access to the Services, without recourse to any Service fees paid or due to Always Active Technologies (Pty) Ltd, and the customer shall be liable for and hereby indemnifies Always Active Technologies (Pty) Ltd (including its agents, shareholders, employees, officers and subsidiaries) against any claims, loss or damages caused as a consequence of the failure by the customer to abide by the provisions of this spamming clause. The customer should furthermore be aware that Spamming is against the regulations laid down by SATRA / ICASA (South African Telecommunications Regulatory Authority), who in their own right are lawfully entitled to take action against anyone found guilty of spamming.
4.5. Identification of the Originator
Always Active Technologies (Pty) Ltd and the respective GSM Network Service Providers reserve the absolute right not to deliver any SMS message unless and until the identification of the originator thereof, or its authorised representative, is known and understood.
4.6. Termination of the Service(s)
At any time during the tenure of this agreement, the customer acknowledges that Always Active Technologies (Pty) Ltd reserves the right to disable, discard or remove any customer's service, without notice, for any reason, including and without limitation to, should Always Active Technologies (Pty) Ltd in its reasonable opinion believes that the customer has contravened or breached any provision of this agreement. Always Active Technologies (Pty) Ltd may also, at its sole discretion, at any time cease to provide the relevant Service, or any part thereof and to make modifications and changes to the said relevant Service. The customer also fully understands, accepts, and further indemnifies Always Active Technologies (Pty) Ltd fully against any claims by the customer or any third party as a result of such changes to or termination of Service(s), or part thereof.
5.1. SMS Billing Methodology
By its signature to the subscriber registration form, the subscriber acknowledges that it is aware of and has agreed all the terms of the tariff plan inserted in the form, including the charges under the tariff plan which shall be payable to AAT as follows :
the connection charge and the first monthly access charge(s) on the commencement date;
subsequent monthly access charges on or before the first day of each month following the connection date;
the SMS charges and all other charges, within 14(fourteen) days after the date of AAT’s invoice in respect thereof. The timing, format and details of invoices shall be in the sole discretion of AAT.
All charges shall be payable by means of direct debit order, free of exchange and bank charges. The subscriber shall not for any reason whatsoever withhold payment of any charges.
Should any payment not be made on due date, AAT shall be entitled, without detracting from its other rights in terms of this agreement, to charge interest on such arrear payment as from the due date to date of actual payment thereof at a rate equal to the annual prime rate charged by Standard Bank on overdrawn accounts from time to time, plus 4% (four percent).
Each charge, unless otherwise stated in the schedule of charges, is exclusive of value added tax which shall be borne and paid by the subscriber together with the charge in question.
The monthly access charge is a charge for permitting the subscriber continued access to the services and the subscriber will be liable for each and every monthly access charge irrespective of the use made of the service.
Any call registered and recorded on the system as having emanated from the equipment/SIM card shall, until the contrary is proved, be deemed to have been made by or by means of, the equipment/SIM card.
For the purpose of calculating call charges, the duration of each call as recorded and registered on the applicable metering system used by the network operator(s) shall be final and binding on the parties.
AAT may at any time by written notice require the subscriber to furnish such security as AAT may deem appropriate for the payment of the charges, and any failure by the subscriber to furnish such security to AAT within 14(fourteen) days after the date of such notice shall constitute a material breach of this agreement by the subscriber.
AAT shall be entitled, in its sole and absolute discretion and by means of written notice to the subscriber, to vary the charges from time to time. Notwithstanding the date of any such notice, any variation in the charges arising from an increase in the GSM Network charges in respect of the services shall take effect as from the date upon which AAT becomes liable for such increased charges.
The customer agrees to pay the charges, to Always Active Technologies (Pty) Ltd or the customer's service provider as the case may be, as set out in the application form. Should there be a disputed transaction, Always Active Technologies (Pty) Ltd shall endeavour to make the necessary investigations to the best of its abilities and attempt to rectify the discrepancy, but should such investigations prove to be inconclusive, the message transaction logs, as maintained by Always Active Technologies (Pty) Ltd and the respective GSM Network Service Providers shall be deemed to be true and accurate for accounting purposes.
6. Intellectual Property Rights
The information, media, systems, content, Products and Services provided by Vodacom Service Provider through the Vodacom Service Provider SMS product range for the customer's use, including all intellectual property rights therein, is the sole property of Always Active Technologies (Pty) Ltd and the customer shall at no stage acquire any rights therein or thereto. It is also to be understood that all Vodacom Service Provider web content and Always Active Technologies (Pty) Ltd software is protected by Copyright law. Unauthorized reproduction or distribution of this software and web content or any portion thereof, will result in severe civil and criminal penalties, and will be prosecuted to the full extent of the law.
7. Applicable Law
The laws of the Republic of South Africa govern this contract. The customer fully acknowledges that any disputes resulting in legal intervention shall be concluded within the jurisdiction of the Republic of South Africa and that the applicable laws of the Republic of South Africa shall prevail.
8. Interpretation and Nullification of Clauses
The customer accepts to agree to all aspects of this agreement and shall comply with all laws, regulations and restrictions that apply to the customer. Always Active Technologies (Pty) Ltd shall be entitled to modify the terms and conditions of this Policy in writing from time to time. Any delay in the enforcement of any term of this agreement shall not be deemed to be a waiver of such right(s).
9. Provision of SMS Service by the SMS Provider’ where the SMS Provider is understood to be the subscribed user of the Always Active Technologies (Pty) Ltd WASP SMS service;
The SMS Provider shall be entitled to provide such SMS information services as are approved by Always Active Technologies and shall at all times in it's provision of SMS information services adhere to the SMS Code of Practice found (see annexure B). It this regard it is recorded that the SMS Code of Practice is a standard document that was drafted to govern the provision of SMS type information services. As such it must read, for the purposes of this Agreement, in the context of the provision of SMS type information services, and all references therein to information services shall be deemed, mutatis mutandis, to be reference to information services provided pursuant to this Agreement.
The SMS Provider shall ensure that before the SMS information services are made available, that such authorisations, licenses, consents and permissions as may be relevant and necessary, have been obtained or granted, and furthermore the SMS Provider shall ensure that the SMS information services are not unlawful in any manner whatsoever.
The SMS Provider shall make freely available to the recipients the cost, if any, and terms and conditions upon which the SMS information services are provided.
The SMS Provider shall ensure that in exercising its rights and meeting its obligations as provided for in this agreement that it at all times complies with the terms and conditions of the License, and in particular shall:
ensure that any information it obtains or receives in respect of the Recipients is kept confidential and not disclosed, communicated or made accessible to any third parties;
comply with the SMS Code of Practice;
develop, publish and enforce guidelines for handling enquiries and complaints from its customers.
However, having regard to the fact that the SMS Provider is not in possession of a copy of the License or the VCPCA, it is recorded that Always Active Technologies will be required to provide written notice to the SMS Provider, advising it that it is not complying with a provision of the License and/or VCPCA, and the nature of such non-compliance, and providing the SMS Provider with 14 (fourteen) days within which to comply, failing with the SMS Provider shall be deemed to be in breach of clause 9.4.1 and/or 9.4.2.
The SMS Provider shall not be entitled to charge:
any person who does not have equipment linked to the SMSC but at whose instance and request the SMS Provider sends SMS's to the Recipients;
in excess of the maximum tariff regulated by the Regulatory Authority for the provision of SMS information services.
The SMS Provider shall not transmit unsolicited SMS information services without the express or implied consent of the Recipients, and shall ensure that the appropriate mechanisms exist to enable a Recipient to withdraw or cancel such consent at any time, whereupon the SMS Provider shall cease to transmit such SMS information services to such Recipient.
The SMS Provider shall ensure that it is apparent, on all SMS information services, from whom the SMS originates.
The customer agrees not use the SMS services in the following way;
The customer shall not re-sell the SMS WASP services provided by Always Active Technologies unless agree to in writing by Always Active Technologies.
The customer shall not use any of the services provided as a high volume incoming facility as would traditionally be used in industries such as vehicle tracking.
11. TERMINATION AND SUSPENSION OF SERVICES
AAT may at any time suspend the services, in whole or in part, without notice to the subscriber and without incurring any liability whatsoever.
should AAT be unable to provide the services, in whole or in part, whether due to force majeure or otherwise through no fault of its own; or
should any agreement from which AAT derives its rights to provide the services, be suspended, cancelled or terminated; or
should such suspension be necessary in order to facilitate any modification, maintenance or remedial works in respect of the system; or
should the subscriber fail to comply with any term of this agreement; or
should the subscriber use equipment that infringes or is alleged to infringe the intellectual property rights of any third party.
Should the services be suspended pursuant to clause 8.1.1 or 8.1.2, AAT shall use its reasonable endeavours to provide an alternative service to the subscriber, whether through an alternative network operator or service provider or otherwise, all in AAT’s discretion. Should AAT fail to provide an alternative service within 60 (sixty) days after the commencement of the suspension, either party hall be entitled by written notice to the other, to terminate this agreement with immediate effect. In such event, the subscriber shall remain liable for all charges accrued up to date of such termination, payable on demand.
Should the services be suspended by reason of default of the subscriber, the subscriber shall be liable to AAT for its then applicable connection charges, payable on cessation of the suspension.
Should the subscriber breach any term of this agreement and fail to remedy such breach within 10 (ten) days after delivery to it of written notice calling upon it to do so, or should any information furnished by the subscriber in the subscriber registration form not be true and correct, or should the subscriber be provisionally or finally liquidated or declared insolvent or die, or attempt to compromise with any of its creditors, or allow any judgement against it to remain unsatisfied for a period of 14(fourteen) days after the date of such judgement, or should the equipment be attached under any legal process issued against the subscriber if purchased or leased from AAT, should the agreement in respect of the equipment be terminated by AAT, AAT shall be entitled, but not obliged, and without detracting from any other rights that it may have in law or in terms of this agreement :
to suspend the services, in whole or in part, and disconnected the equipment; and/or
to terminate this agreement and recover from the subscriber as a penalty, alternatively liquidated damages, the aggregate of the monthly access charges for the unexpired portion (if any) of the contract period for early termination
A certificate signed by any manager of AAT (whose appointment and authority it shall not be necessary to prove) as to the existence of any facts and, in particular, without limiting the foregoing generality, as to the amount of any indebtedness of the subscriber in terms of and pursuant to this agreement, shall constitute prima facie proof of such facts for any purpose and, more particularly, for the purposes of provisional sentence proceedings or their equivalent in any court of competent jurisdiction.
The parties hereby choose domicilium citandi et executand for all purposes under this agreement as follows :
AAT at AAT House, 1 Bellevue Road, Kloof, 3640, KZN, South Africa
The subscriber at its physical address set out in the subscriber registration form
Either party may, by written notice to the other, change its domicilium to any other physical address in the Republic of South Africa and its telefacsimile number, as stated in the subscriber registration form to any other South African number, provided that any such change shall only take effect 14(fourteen) days after delivery of such written notice.
Any notice to be given by either party tot he other shall be in writing, clearly marked for the attention of the Finance Manager in the case of AAT, and shall be deemed to have been duly delivered :
if addressed to the addressee at its chosen domicilium and posted by pre-paid registered post on the 7th (seventh) day after the date of posting thereof; or
if delivered to the addressee’s chosen domicilium by hand during normal business hours from Monday to Friday (excluding pubic holidays), on the date of delivery thereof; or
if sent by facsimile to the addressee at its telefacsimile number, either as stated in the subscriber registration form or as subsequently changed in terms of clause 11.2, or on the date following the date of sending thereof.
AAT shall be entitled to cede and transfer all or any of its rights in terms of this agreement, which event AAT shall give the subscriber written notice thereof.
The subscriber shall not be entitled to cede or delegate any of its rights or obligations in terms of this agreement without the prior written consent of AAT.
This document together with all the schedules thereto constitutes the entire agreement between the parties.
Save as may be otherwise expressly provided in this agreement, no alteration, variation or consensual cancellation of this agreement and no addition to this agreement shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.
No failure, delay, relaxation or indulgence on the part of AAT in exercising any power or right conferred upon it in terms of this agreement shall operate as a waiver of such power or right, nor shall any such failure, delay, relaxation or indulgence be deemed to be a novation of any of the terms and conditions of this agreement. The acceptance by AAT of any payment by the subscriber after the termination of this contract shall not be deemed to be a waiver of AAT’s rights or to constitute a novation of this agreement.
The subscriber shall on demand pay all expenses incurred by AAT either on behalf of the subscriber or as a result of the subscriber’s failure to comply with any provision of this agreement, including tracing costs and all legal costs calculated on the scale as between attorney and its own client.