Terms and Conditions
The CLIENT agrees to be bound by the terms and conditions specified below.
1. CONNECT MOBILE COMMUNICATION / Connet2u Disclaimer and Exclusions of Warranties
Connect Mobile Communication (Pty) Ltd hereafter CONNECT offers the Connet2u mobile application (C2u) hereafter THE SERVICE, software, accompanying information, materials, and documents (hereafter collectively "materials") "as is" without warranty of any kind, either expressed or implied, including without limitation warranties of merchantability, fitness for particular purpose, and non-infringement.
Any information/advice provided by CONNECT or external links are viewed, relied upon, and used at the CLIENT’S own risk. CONNECT, its officers, directors, affiliates, shareholders, agents, licensors and employees will periodically add, change, delete, improve, or update materials without any prior notice. CONNECT, its licensors and affiliates do not warrant that the information will meet your requirements or that the operation of THE SERVICE will be uninterrupted or error free.
Use of THE SERVICE is at each CLIENT’S sole risk. Under no circumstances, including without limitation, negligence, shall CONNECT, its officers, directors, affiliates, shareholders, licensors, agents, employees, information providers or content providers be liable for any actual, direct, indirect, incidental, special, punitive or consequential damages or loss, even if CONNECT has been advised of the possibility of such damages.
Under no circumstances shall CONNECT, its officers, directors, affiliates, shareholders, agents, licensors and employees be liable for any losses, damages, liabilities, penalties, claims, demands, suits, actions, or any related costs and expenses of any kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, which are claimed to arise from use of THE SERVICE, software, including without limitation, any fault, error, omission, interruption or delay with respect thereto. CONNECT is not responsible for any Intellectual Property Rights infringement what so ever.
Neither party shall be liable for any disruption, interruption, suspension, failure and breakdown of its system due to factors beyond its reasonable control. Except in the event of gross negligence, wilful misconduct, non-payment, or as set out below, neither party shall be liable for any indirect, incidental, consequential, special, loss of revenue and/or business, loss of anticipated earning or punitive, exemplary damages howsoever arising out of this Agreement (whether for breach of contract, tort, or negligence) or its termination and irrespective of whether such Party has been advised of the possibility of such loss or damage.
Each Party hereby agrees to indemnify and hold the other Party harmless from any and all costs, expenses, including reasonable outside attorneys’ fees, claims, suits and liability by third parties (collectively, “Claims”) that the other Party may suffer or incur by reason of the Party’s actual or alleged:
- infringement of any Intellectual Property rights of the Other Party or a third party in connection with this Agreement,
- violation of any laws or regulation of any governmental, regulatory or judicial authority arising from the performance of the Party under this Agreement, and
- the gross negligence or wilful misconduct of the Party, its employees or agents in connection with this Agreement.
CONNECT confirms that it is a member of the Wireless Application Service Providers Association (WASPA) and undertakes to adhere to any legislation policies and/or codes of conduct that may be applicable. CLIENTS are strictly to adhere to the WASPA code of conduct. The WASPA code of conduct and advertising guidelines can be viewed at www.waspa.org.za. CONNECT shall not be held liable by the CLIENT if any of the CLIENT’S services are deemed to contravene WASPA code of conduct and the service is blocked. CONNECT will stand by any judgement handed down by WASPA in terms of services owned by CLIENTS of CONNECT and will discontinue such service provided to the CLIENT. This does not exempt the CLIENT from financial obligations in terms of the agreement and does not void or terminate this agreement or any clause in the agreement. Any penalties or fines imposed by WASPA in terms of services owned, run by, or on behalf of the CLIENT shall be the liability of the CLIENT and payable by the CLIENT. CONNECT reserves the right to withhold payment of revenue share to the CLIENT until such penalties or fines are settled by the CLIENT in full. A penalty of R10000 will be imposed by CONNECT for any breach of the WASPA Code of Conduct. This penalty is over and above the fine imposed by WASPA, which will also be charged to the CLIENT.
CONNECT owns the relationship with the Mobile and Fixed network operators in the territory and will manage and maintain all, communication, negotiations, contractual relationship, agreements with the network operators and service providers and its agents, representatives, suppliers or subcontractors in the territory. All mobile telephone applications included in this agreement shall be subject to such agreement. CONNECT however does not hold itself out as the legal agent, representative, employee of any network operator or service provider and provides no guarantee or warranty on behalf of any network operator or service provider. In the event of non-availability of any of the Mobile or Fixed Telephone Networks or Internet Service Provider infrastructure, or if any agreement is suspended, cancelled, varied or terminated rendering CONNECT unable to provide the services and facilities in terms of the Agreement, CONNECT shall be entitled in its sole discretion to suspend, cancel, vary or terminate this agreement or any part thereof without CONNECT incurring any liability whatsoever in the event of non-availability of the service.
5. Lawful use of Service & Adult Content
5.1 The CLIENT will not use THE SERVICE or knowingly allow others to use THE SERVICE for any illegal or unlawful purpose or activity.
These include, but are not limited to the transmission of content which:
- carries any defamatory, discriminatory or obscene material;
- carries child pornography;
- carries religious or racial slurs;
- is used in connection with any infringement of another person’s intellectual property rights (for example copyright and trademark);
- engages in the transmission of pirated material;
- threatens or encourages bodily harm;
- destroys tangible or intangible property;
- uses the network to harass another subscriber or visitor;
- uses the network to collect or attempt to collect personal information about third parties without their knowledge or consent; and
- uses information that is in breach of confidence, illegal or immoral in any way.
The CLIENT will not use THE SERVICE for the transmission of unsolicited commercial messages (spam).
5.2 Governing body ICASA that acts with WASPA and the DMASA have implemented strict regulations that SMS senders must adhere to. Direct marketing, defined for the purposes related to the telecommunications industry, is defined as any form of advertising (of goods or services) submitted via SMS to opted-in/interested recipients. Clients are prohibited from advertising goods or services via SMS to recipients that have not explicitly opted in to receive these SMSs. Clients submitting direct marketing content within, or to recipients residing in, South Africa (GMT+2) are only allowed to submit SMSs during the send times as per below.
- Mondays to Fridays from 08h00 to 17h00 only; and
- Saturdays from 09h00 to 13h00 only.
On Sundays and Public Holidays clients are prohibited from submitting marketing content via SMS to recipients. Failure to adhere to these strict regulations could result in service suspension and hefty fines passed on by WASPA.
6. Continuation of Service
In the event that the service/application supplied by the CLIENT to a THIRD PARTY is discontinued/dissatisfactory, fraudulent or if monthly THE SERVICE hosting is not paid to CONNECT by the CLIENT, CONNECT has the right to resume the service or develop a similar service with or without consent from the CLIENT and offer this service/application to same THIRD PARTY.
7. Keyword Based Competitions
CONNECT reserves the sole right to allocate keywords for SMS competitions. All keywords must be applied for by the CLIENT and approved by CONNECT. Notwithstanding approval that has been granted, CONNECT can de-allocate a keyword for any reason whatsoever. All tariffs and closing dates must ALWAYS be included on any advertising material for a competition. The advertising guidelines set out by WASPA must be strictly adhered to by the CLIENT.
8. Security and Account Protection
CONNECT will allocate the CLIENT with a password to access and update services. This password must be kept secure at all times. The CLIENT acknowledges that any unauthorized access obtained with the CLIENT’S password to THE SERVICE is the CLIENT’S own responsibility and the CLIENT is liable for any activities conducted or costs incurred.
9. Intellectual Property
Nothing in the agreement shall give the CLIENT any rights in respect of CONNECT’S or its affiliates intellectual property and the CLIENT hereby acknowledges that it shall not require any rights in respect thereof and that all such intellectual property is and shall remain vested in the company or its affiliates. The CLIENT shall be provided with proprietary technical information, documentation or software that must be returned to CONNECT on termination of this agreement.
The parties shall procure, at their own cost, all necessary permissions, licenses, royalty-free licenses, consents or approvals prior to any use or reproduction (whether or not in whole or in part) of third Party software, information, documents, data, statements, technology, literary work, musical work, artistic work, invention or design which are protected by copyrights, patent rights, design rights or trademarks belonging to the third party in regards to the Services provided.
The intellectual property of and/or developed by either Party shall remain the exclusive property of that Party. Neither Party shall use the other Party’s intellectual property for whatever purpose unless with the prior written consent of the other Party.
CONNECT shall retain all right, title, and interest in to the CONNECT System, including but not limited to, ownership of all hardware, software, data, technology, applications, report formats and mechanisms, content and all intellectual property rights associated therewith.
The CLIENT shall retain all right, title, and interest in and to the Client’s System, including but not limited to, ownership of all hardware, software, technology, applications and content and all intellectual property rights associated therewith.
All rights not specifically granted herein to hardware, software, content, marks, technology, or other materials (and intellectual property rights of any of the foregoing) are reserved to the owner thereof.
10. Payment Terms
The CLIENT will make payment prior to the use of the service unless otherwise agreed to in writing. Any overruns on prepaid services will be the responsibility of the CLIENT. CONNECT reserves the right to expire and remove any unused SMS credits 12 months after the date the SMS credits were updated on the CLIENT’s account.
11. Conflicting Services
CONNECT offers the SERVICE to many different parties and CONNECT is not responsible and shall not be held accountable in any way for services or applications that, in the CLIENT’S opinion, form a conflict of interest with services or applications provided by the CLIENT. CONNECT does however undertake to keep all information relevant to a CLIENT’S service confidential.
12. Breach and Termination
Notwithstanding any other provision of this Agreement, if the CLIENT is in breach of any of the terms and conditions contained herein, then CONNECT may, without prejudice to any of its other rights and remedies and without notice, terminate the supply of the Service to the CLIENT. The CLIENT shall, on termination of the service, be liable to pay CONNECT all fees outstanding as at the date of termination.
13. Alteration to Terms and Conditions