1. APPLICATION OF THESE TERMS
The smx messaging service (“the Service”) operated by dataX CC (“dataX”) is a service in which SMS messages are used as a communication tool between an institution (“Institution”) and its clients, members, students or parents/guardians (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 sending message using the Service you agree that you have read and agreed to be bound to these TOS. dataX may from time to time amend the TOS after giving you 7 days notice of the amended terms by email.
2. DESCRIPTION OF SERVICE
The Service allows you, the Institution, to send SMS messages from the www.smx.co.za (“the Site”) and to utilise certain other webservices 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, . Availability of the Service may be limited from time to time as a result of system maintenance, upgrades etc.
Duration of this Agreement
The Service is provided as long as the client has credits available in their account, subject to the further provisions of the TOS.
Cost of service (Unlimited SMS Service)
In return for use of the Unlimited SMS Service, you must:
- pay all costs, including equipment and access charges associated with accessing the Internet;
- comply with the TOS.These amounts shall be paid to dataX within 30 (thirty) days of presentation of dataX’s invoices. Failure to do so will result in the credits NOT being released for use.
You can purchase message bundles, the details and prices which can be found on the Site.
These amounts shall be prepaid to dataX on presentation of dataX’s invoice before SMS credits are allocated.
dataX reserves the right to revise prices previously quoted for at any time before an bumdle purchase is confirmed. If prices have changed subsequent to your previous purchase, you will be given the correct current prices at the time of ordering.
Credits purchased will remaining active for a period of 12 months from date of purchase.
3. YOUR OBLIGATIONS WHILE USING THE SERVICE
You agree to provide true, accurate, current and complete information about your Institution and the nature of your business 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 dataX has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, dataX 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).
dataX will not use or disclose any personal information about your Institution or clients or its use of the Service, nor monitor or edit its contents, without your prior written permission unless dataX 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 dataX 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 dataX may provide aggregate demographic information to third parties and that the aggregate information may include non-identifying components of your Institution or of the client’s information.
5. 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 dataX. You agree to notify dataX immediately of any unauthorized use of your account or any other breach of security.
6. 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.
dataX has no obligation to monitor the Service or any user’s use thereof or retain the content of any user session. However, dataX 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.
7. MODIFICATIONS TO SERVICE
dataX reserves the right to modify the Service, either in general or for any particular institution with or without notice. dataX shall not be liable to you or any third party should dataX exercise its right to modify the Service.
You agree that dataX, 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 dataX 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 dataX 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. dataX may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, without notice. Further, you agree that dataX 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.
9. SOFTWARE LICENCE
dataX grants you a personal, non-transferable and non-exclusive right and license to use the object code of any necessary software provided by dataX 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 dataX for use in accessing the Service.
10. LIMITATIONS OF LIABILITY
To the extent permitted by law, dataX 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 dataX 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;
unauthorised 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.
11. 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, dataX 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.
You indemnify and hold harmless dataX, 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.
13. INTELLECTUAL PROPERTY
dataX and dataX.co.za are trademarks of dataX CC. 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 dataX 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.
14. 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.
15. DISPUTE RESOLUTION
If any dispute of any nature whatsoever shall arise between the you and dataX 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.