Terms and Conditions - Smart Technology Centre

Introduction
1. By using or subscribing to any of the Smart Technology Centre (Pty) Ltd products or services you agree that you have read, understand and are bound by:
  1. These Terms and Conditions include the Privacy Policy and Acceptable Use Policy, all available on our website.
2. In the event of a discrepancy between these Terms and Conditions and any product or service specific terms and conditions, the product or service specific terms and conditions will take precedence.
3. Your use of any of the Smart Technology Centre (Pty) Ltd products and/or services indicates your acceptance without modification of the Terms, which will constitute a legal agreement between you and Smart Technology Centre (Pty) Ltd. If you do not want to be bound by the Terms, you must not use or subscribe to any Smart Technology Centre (Pty) Ltd product and/or service.
Definitions
1. “Activation Date” means the date on which Smart Technology Centre (Pty) Ltd will give you access to and/or enable you to use a service;
2. “Agreement” means the Terms as defined in clause 1.1.1, including any Application Form provided to you by Smart Technology Centre (Pty) Ltd;
3. “Application Form” means the document on which you selected your service or product of choice;
4. “Authority” means the Independent Communications Authority of South Africa (“ICASA”);
5. “Business Day” means Monday to Friday, but excludes a day which is an official public holiday in the Republic of South Africa;
6. “Business Hours” means the hours between 08h00 and 17h00 on a Business Day;
7. “Effective Date” means the date on which you accepted the terms and conditions for a service or product, be that in writing or by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone, including telephonic acceptance;
8. “Electronic Communications Act” means the Electronic Communications Act, 2005;
9. “ECT Act” means the Electronic Communications and Transactions Act, 2002;
10. “Equipment” means any device, equipment or hardware used to access the services or used in conjunction with the services, including any SIM(Subscriber Identity Module) card;
11. “Force Majeure” means (including without limitation) fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of Smart Technology Centre (Pty) Ltd, that may result in a delay or a failure to provide the Service;
12. “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978;
13. “Marks” means any trademarks, logos, brand names, domain names or other marks of Smart Technology Centre (Pty) Ltd;
14. “Smart Technology Centre (Pty) Ltd”, “we”, “us” and “our” means Smart Technology Centre (Pty) Ltd, Registration Number 2006/215628/23, its affiliates and subsidiaries;
15. “NCA” means the National Credit Act, 34 of 2005;
16. “Network Coverage” means the geographical area within which the service can be accessed and used by you, as determined at the time coverage was established;
17. “Network Operator” means a Smart Technology Centre (Pty) Ltd that owns an electronic communications network, and which makes such network and the electronic communications services conveyed over such network available to other industry players for commercial purposes (e.g. Vodacom, MTN and Telkom);
18. “RICA” means the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002;
19. “Website” means www.smartonline.co.za
20. “Subscriber”, “you” or “Customer” means an user of any of our services; and
21. “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991.
Conclusion of the Agreement and Duration
1. You warrant that you have the contractual capacity to enter into this Agreement with us. If the Agreement is signed by a person acting in a representative capacity on behalf of you, the signing party hereby warrants that all of the information relating to the entity, partnership, association or other person whom he/she represents and which he/she has supplied to Smart Technology Centre (Pty) Ltd at any time will be true, accurate and complete. Smart Technology Centre (Pty) Ltd reserves the right to treat all misrepresentations by you as a fraud and you indemnify Smart Technology Centre (Pty) Ltd against any loss or damage that Smart Technology Centre (Pty) Ltd may sustain resulting from such misrepresentation.
2. When you apply for a service or product with Smart Technology Centre (Pty) Ltd you will provide us with a certified copy of your identity document, proof of residential and/or business address and proof of income (a copy of your payslip or bank statements). In the event of a juristic person, you will provide us with the same information as above for your authorised representative, together with proof of address for the juristic person, registration documents and a Smart Technology Centre (Pty) Ltd resolution authorising the application and the Smart Technology Centre’s representative’s capacity to enter into the Agreement.
3. The Agreement will be effective from the Effective Date. The contract term of the Agreement will only take effect from the date of service activation (Activation date), and will continue for the full term as indicated by the contract term shown on the agreement, until such time as terminated accordingly. All services will automatically renew for the full contract term on expiry date, unless cancelled by either third party as outlined below. No agreement will come into effect in the event of a negative credit reference or risk assessment.
4. This Agreement will terminate according to the below instances:
  1. Fixed contract term agreement: upon the expiry of the contract term as shown starting from the Activation Date (“the Initial Period”). At the end of the Initial Period, the Agreement will automatically renew for the full contract term, unless terminated in writing by either party by giving the other 2 (two) calendar months’ notice prior to the expiry term. Any early terminations by the customer will result in the full balance of contract term being charged in the form of cancellation charges; or where
  2. Month to month arrangement: 1 (one) calendar months’ notice is receiving in writing, which will only take effect effect on the first day of the month immediately following the end of the applicable notice period; or
  3. Service/s provided pursuant to an agreement with a Network Operator, on the date specified in a notice in writing from us which we may give to you in the event of the termination of the agreement between us and any Network Operator relating to the provision of the service.
5. You agree to pay the service/s fee/s for the remainder of the fixed term period (balance of term), as well as any other amounts due by you to us under this Agreement, in the event of the early termination by you of a fixed term agreement.
6. Upon the termination of the Agreement, your use of the service shall terminate. However, in the event that you continue to use the service following a termination, the Terms will apply and you shall be liable to make payment to Smart Technology Centre (Pty) Ltd of any service charges arising therefrom. This shall in no way constitute a revival of the Agreement, and Smart Technology Centre (Pty) Ltd shall be entitled to terminate the service without notice to you
ECT Act and NCA
1. Your application for a service or product may be subject to a credit referencing or risk assessment process. This means that Smart Technology Centre (Pty) Ltd may request and receive your Confidential Information, Consumer Credit Information and Prescribed Information (as defined in the NCA) (“Assessment Information”) from registered credit bureaus in order to perform a financial means test to determine whether you will be in a position to meet your obligations under the intended agreement.
2. Smart Technology Centre (Pty) Ltd is entitled to perform this financial means test each time you apply for a service or product.
3. In this regard you consent to Smart Technology Centre (Pty) Ltd requesting, receiving and reporting your Assessment Information from and to registered credit bureaus in accordance with the provisions and for the purposes of the NCA; and the sharing of such Information by registered credit bureaus and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
4. The provisions of the ECT Act, apply to transactions and communications that are executed electronically by a natural person. It does not apply to juristic persons or paper based transactions, e.g. where you apply for a service or product by completing an Application Form in writing.
5. You acknowledge that Smart Technology Centre (Pty) Ltd will provide you with an opportunity in respect of all electronic transactions to:
  1. Review the entire electronic transaction;
  2. Correct any mistakes; and
  3. Withdraw from the transaction, before finally placing the order.
Conditions of access
1. Smart Technology Centre (Pty) Ltd will make the service available to you on the Activation Date.
2. You agree that:
  1. You will use any assigned user name and password for your own personal use only;
  2. You will not disclose your user name and password to any other person for any reason whatsoever and that you will maintain the confidentiality thereof;
  3. In the event that your password is compromised, you will immediately notify Smart Technology Centre (Pty) Ltd and change your password;
  4. You agree to cause all persons who use any products or services under your account or with your authorization to comply with the Terms and acknowledge that the acts or omissions of all persons who use services under your account or with your authorization will be treated for all purposes as your acts or omissions;
  5. Unless such right is specifically and expressly provided to you an any applicable product or service terms you will not, at any time, permit and/or initiate a simultaneous network log-in; and
  6. You will not attempt to circumvent the Smart Technology Centre (Pty) Ltd user authentication processes or engage in attempts to access the Smart Technology Centre (Pty) Ltd network where not expressly authorised to do so.
Service Delivery, Service Availability
1. Smart Technology Centre (Pty) Ltd will make all its services and products available to you in accordance with the provisions of its Code of Conduct and Service Charter, which are available on our Legal Notices Website, at the Smart Technology Centre (Pty) Ltd retail shops, and on request.
2. Smart Technology Centre (Pty) Ltd will use reasonable endeavours to make its services available to its subscribers, and to maintain the availability thereof for use by its subscribers. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements.
3. Smart Technology Centre (Pty) Ltd will use its best endeavours to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.
Data Retention
1. We will use reasonable endeavours to ensure the safekeeping of any data or content which you may receive or upload to our servers from time to time, such as (without being limited to) photographs, websites, videos, data and e- mail messages (hereinafter collectively referred to as “your data”). However, it is your obligation to keep copies and back-ups of your data, as:
  1. We will not be liable for any direct or indirect loss or damages of any kind, which you may suffer as a result of the loss of your data, or any part thereof, for any reason whatsoever (including as a result of our negligence); and
  2. We will delete all your data from our servers upon termination of this Agreement and any other agreement between us.
Communication, Complaints Handling and consent to Arbitration
1. You agree that Smart Technology Centre (Pty) Ltd may from time to time send you communications regarding (without being limited to) special offers or discounts which Smart Technology Centre (Pty) Ltd may negotiate for and offer to its subscribers, operational changes that may affect the services and/or new services or products launched by Smart Technology Centre (Pty) Ltd from time to time. All communications will abide by our Privacy Policy.
2. Complaints must be submitted to Smart Technology Centre (Pty) Ltd and will be dealt with by Smart Technology Centre (Pty) Ltd in accordance with the provisions of this clause 8.
3. Any payment default by you arising from, or in connection with, any service or product rendered or provided by Smart Technology Centre (Pty) Ltd , will be excluded from the provisions of this clause, and Smart Technology Centre (Pty) Ltd may, in our sole discretion, proceed to institute legal action against you.
4. You are required to afford us an opportunity to resolve a compliant before you approach the Authority or refer the matter to Arbitration as contemplated in clause 8.10 below.
5. You are required to direct a complaint to complaints@smartonline.co.za – Your complaint should include the following:
  1. Your name and surname;
  2. Your account number;
  3. The date on which the complaint arose; and
  4. A brief description of what gave rise to the complaint.
6. Smart Technology Centre (Pty) Ltd will acknowledge receipt of your complaint within 3 (three) working days of receipt thereof
7. Smart Technology Centre (Pty) Ltd will formally resolve your complaint in writing within 14 (fourteen) working days of receipt thereof, or within such longer period as we may agree to under circumstances where the resolution of the complaint is for example (but without limitation) in the hands of a supplier or third party service provider.
8. You may approach the Authority or refer the matter to Arbitration as set out in clause 8.10 below, for resolution of the dispute, should you not be satisfied with the outcome of the dispute as determined by Smart Technology Centre (Pty) Ltd.
9. The dispute will be referred to the Complaints and Compliance Committee of the Authority in terms of section 17 (H) of the ICASA Act in the event that the dispute is not resolved by the Authority itself.
10. Subject to clauses 8.3 to 8.9 above, any dispute between the parties, shall be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in, and judgment upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.
11. The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.
12. These provisions shall not prevent either party from approaching the Magistrates or High Court to obtain timely interim or other relief in cases of urgency or breach of this clause.
Payment
1. Billing will commence on the Activation Date.
2. You agree to pay all amounts due under this Agreement in consideration for a service or product, in accordance with the service or product specific terms under which that service is rendered or that product is offered.
3. All amounts due and payable in terms hereof shall be paid free of exchange and without deduction or set-off, by way of a direct debit order in favour of Smart Technology Centre (Pty) Ltd (drawn against a current banking account nominated by you), or in such other manner as Smart Technology Centre (Pty) Ltd may from time to time determine. You agree that:
  1. By furnishing your bank details to us, you instruct and authorise Smart Technology Centre (Pty) Ltd to draw all amounts payable in terms of this Agreement from the account specified (or any other bank or branch to which it may be transferred);
  2. That the debit order will commence on the Activation Date and continue until termination of this Agreement and the service or product specific agreement under which a service is rendered or a product provided and the payment in full of all outstanding amounts due and payable to Smart Technology Centre (Pty) Ltd under any of the aforementioned Agreements;
  3. You will sign all such forms and do all such things as may be necessary to give effect to the debit order as contemplated in this clause 9.3.
4. Our first bill may be pro rata; you’re charged for the number of days left in the month in which you signed up or switched over, plus the subscription for the next month.
5. You are required to direct any complaint or dispute in connection with a payment to us in accordance with the provisions set out in clause 8 above. Smart Technology Centre (Pty) Ltd will reach a decision on the billing complaint and communicate it to you within fourteen (14) Business Days of receipt of the complaint.
6. Should you fail to pay any amount on the due date for payment notwithstanding receipt of Smart Technology Centre (Pty) Ltd decision referred to in clause 9.5, then Smart Technology Centre (Pty) Ltd may, without prejudice to any of its other rights
  1. Take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation the use of debt collection mechanisms; and if the debt arises from an agreement which is a credit agreement, then in accordance with the collection and repayment practices as prescribed in the NCA;
  2. Suspend your access to the service without notice to you until such time as the outstanding amount has been paid in full; or
  3. Terminate this agreement with immediate effect.
7. Subject to the terms and conditions of any agreement entered into between Smart Technology Centre (Pty) Ltd and a Network Operator, Smart Technology Centre (Pty) Ltd shall be entitled to amend the terms, fees or charges for its services or products at any time on 30 (thirty) days’ notice to you as provided for in clause 23 below. The amendment will take effect on the date indicated in the notice.
8. Smart Technology Centre (Pty) Ltd will use reasonable endeavours to inform you well in advance and in any event prior to disconnection, about the possibility of disconnection in the case of non-payment.
9. You indemnify us against any damage, loss, cost or claim which you may suffer or incur arising from the suspension or termination of the service/s for any reason contemplated in the Terms.
10. When roaming off the Smart Technology Centre (Pty) Ltd facilities (including voice, data and hotspot roaming), you will be responsible for all applicable Smart Technology Centre (Pty) Ltd charges and will be subject to the limitations or conditions of service of the service provider of such roaming services.
11. To the extent that Smart Technology Centre (Pty) Ltd incurs any additional expenditure relating to the tracing and/or collection of unpaid amounts, those costs shall be for your account.
Equipment and Software
1. Except for Equipment that you have fully paid for, all Equipment installed or provided by us remains our property and you agree that:
  1. You will take reasonable care with such Equipment;
  2. You may not sell, lease, mortgage, transfer, assign or encumber such Equipment;
  3. You may not re-locate such Equipment without our knowledge and permission;
  4. You will inform any landlord that such Equipment is owned by Smart Technology Centre (Pty) Ltd and therefore not subject to any landlord’s hypothec; and
  5. You will return such Equipment to us at your own expense upon termination of the Services to which the Equipment related.
2. If such Equipment is lost, stolen or damaged or sold, leased, mortgaged, transferred, assigned, encumbered, or not returned, you agree to pay us the undiscounted retail value of such Equipment, together with any costs incurred by us in seeking possession of such Equipment.
3. You authorize us and our representatives to enter or have access to your premises as necessary, at mutually agreed upon times, to install, maintain, inspect, repair or remove the Equipment or to maintain, investigate, protect, modify or improve the operation of our services or our facilities.
4. Equipment and related software may have to meet certain minimum requirements and be maintained in certain ways and in certain locations in order to access the services or for the proper operation of the services (e.g. 112 emergency services). Such requirements may be changed from time to time at our sole discretion. Unless otherwise specified by us, you are solely responsible for updating or maintaining your Equipment and software as necessary to meet such requirements, and you may not be entitled to customer support from us if you fail to do so.
5. You must immediately notify us, at any of the points of contact specified below, if your Equipment is lost, stolen, or destroyed. Should you then wish to terminate your services; your obligations under the Agreement will continue to apply.
6. Any software and documentation we provide to you remains our property or that of our licensors. You will take reasonable steps to protect such software or documentation from theft, loss, or damage. You must review and agree to the applicable end user license agreement before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all end user license agreements will terminate upon termination of the Agreement.
Return, Exchange and Refunds
1. The policy of Smart Technology Centre (Pty) Ltd for exchanges, returns and refunds in respect of products, in particular hardware, provided to you under this Agreement are dealt with in the service and product specific schedule.
2. The policy of Smart Technology Centre (Pty) Ltd in respect of exchanges, returns and refunds depends on the type of goods and the policy of the manufacturer or supplier thereof. Where the manufacturer or supplier does not have an exchange, return, and refund policy in place, no mention of such policy will be made in the service and product specific terms and conditions.
3. Warranties, if any, will ordinarily be included in the hardware packaging.
4. Smart Technology Centre (Pty) Ltd will consider requests for other refunds, for example where an account was debited with the wrong amount, on an ad hoc basis in accordance with the Billing Complaints Handling Procedure referred to in clause 8.
Security and Privacy
1. Smart Technology Centre (Pty) Ltd will take whatever action Smart Technology Centre (Pty) Ltd may deem necessary and reasonable to preserve the security and reliability of its network.
2. You may not utilize any service in any manner which may compromise the security of the Smart Technology Centre (Pty) Ltd network, or any other network connected to the Smart Technology Centre (Pty) Ltd network, or tamper with a service or such a network in any manner whatsoever.
3. Smart Technology Centre (Pty) Ltd takes reasonable steps to secure your payment information. Smart Technology Centre (Pty) Ltd uses a payment system that is sufficiently secure with reference to accepted technological standards at the time of the electronic transaction and the type of the transaction concerned.
4. Smart Technology Centre (Pty) Ltd will deal with your personal information in accordance with the provisions of our Privacy Policy which is available on our Legal Notices Website.
Acceptable Use Policy
1. You hereby agree to adhere to generally acceptable Internet and e-mail etiquette. In this regard you must read and familiarize yourself with our Acceptable Use Policy found on our Website. Without limiting our Acceptable Use Policy we have listed examples below and you agree not to:
  1. Engage in any abuse of e-mail or bulk messages (spamming), including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
  2. take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent your affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service;
  3. use any service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights;
  4. Use any service to make fraudulent offers to sell or buy products, items, or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”;
  5. Use any service in a manner that may infringe the Intellectual Property Rights or other proprietary rights of others, including (without being limited to) the transmission of pirated software;
  6. Use any service to post or transmit anything which contains viruses or any other destructive features, codes, programs or files that may impede or destroy the functionality of any computer, software, equipment or network, regardless of whether or not damage is intended;
  7. Repeatedly post gratuitous off the topic postings;
  8. Gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect personal information about third parties without their knowledge or consent;
  9. Violate the privacy of any person or attempt to gain unauthorised access to the service or any other network, including (without being limited to) through hacking, password mining or any other means;
  10. Use the service to engage in any illegal or unlawful activity;
  11. Use the service in any manner that in Smart Technology Centre (Pty) Ltd sole discretion constitutes abuse of the service or of Smart Technology Centre (Pty) Ltd system; or
  12. Be abusive towards Smart Technology Centre (Pty) Ltd staff or use language that are defamatory, discriminatory, obscene, offensive, threatening, abusive, harmful, and hateful or are of a religious or racial nature.
2. We reserve the right to establish policies, rules and limitations, from time to time, concerning the use of the service. You must comply with any bandwidth, data storage and other limitations we may impose, in our sole discretion. Failure to comply with these rules will result in your service being restricted, suspended, or terminated, in our sole discretion.
3. We reserve the right to limit the number of emails that you may send in any given period or to limit the total message volume (amount of data) sent per hour.
4. Unless you are subscribed to a business package, you may not use any services for anything other than your own personal use.
5. Unless you subscribe to a business packages and you are permitted in terms of such business package, you may not resell any services, receive any charge or benefit for the use of any services or provide Internet access or any other feature of the services to any third party or in any other way exploit the service for any commercial purposes. For example, you cannot provide Internet access to others through a dial up, ADSL or other connection, host shell accounts over the Internet, provide e-mail or news services, or send a news feed. You may not run a server (including game servers) in connection with the services. You may not provide network services to others via the services. In addition, you are prohibited from running servers for mail, http, ftp, irc and multi-user interactive forums. You may not share your services.
6. You may not restrict, inhibit or interfere with the ability of any person to access, use or enjoy the Internet or the any services, or create an unusually large burden on our network, including, without limitation, continuously uploading or downloading streaming video or audio; continuous FTP uploading or downloading, or otherwise generating levels of traffic sufficient to impede others’ ability to send or retrieve information, or to use the services in an abusive manner in connection with any unlimited packages, options or promotions.
7. We will manage bandwidth usage to the best of our ability during peak periods; however, it remains a best effort service.
8. We reserve the right to manage our network in order to optimize its efficiency for the benefit of all our subscribers, including, without limitation, by way of the following: rate limiting (speed), rejection or removal of spam or otherwise unsolicited bulk e-mail, anti-virus mechanisms, protocol filtering and imposing restrictions on your use. We may take any other action we deem appropriate in order to help ensure the integrity of the network experience for all subscribers, including limiting your data traffic by controlling your network and/or bandwidth usage.
9. You may not use service for unattended automated operation, unless otherwise agreed. You may stay connected as long as you are actively using that connection. You further agree not to use Internet applications for the purpose of simulating network activity to avoid session inactivity disconnection.
10. We do not make any express or implied representations, warranties, or guarantees regarding the availability, accuracy, reliability, timeliness, quality, or security of any services.
11. We are committed to provide you with uninterrupted services. However, we cannot guarantee that service and the allocated capacity will always be available.
12. We can terminate the service at any time if we decide to discontinue the service offering for any reason whatsoever, without any further liability to you
13. If the service is used in a way that we, in our sole discretion, believe violates this Acceptable Use Policy or any of our rules or limitations, we may take any responsive actions we deem appropriate. Such actions may include without limitation, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and/or the immediate limitation, restriction, suspension or termination of all or any portion of the services or your account.
14. Should you engage in any one or more of the above activities, which shall be determined in Smart Technology Centre (Pty) Ltd sole discretion and which decision shall be final, then Smart Technology Centre (Pty) Ltd shall be entitled, without prejudice to any other rights it may have, to take any responsive action we deem appropriate, such actions may include, without limitation:
  1. Without notice, temporary or permanent limitation, restriction or suspension of your access to the service concerned;
  2. Terminate all agreements with you with immediate effect;
  3. Bill you for any costs incurred by Smart Technology Centre (Pty) Ltd as a result of the offending activity, including (without being limited to) bandwidth used, administration costs, downtime, usage of Smart Technology Centre (Pty) Ltd name or registered domain names and CPU cycles; and
  4. Disclose information relating to the offending activity as may be required under the circumstances.
RICA and Interception of Communications
1. You acknowledge that Smart Technology Centre (Pty) Ltd and/or a third party Network Operator (as the case may be) may under the circumstances as prescribed in RICA, be required to intercept, lock, filter, read, delete, disclose and use communications sent or posted via Smart Technology Centre (Pty) Ltd or the Network Operator’s network and you hereby consent to the undertaking of such activities by Smart Technology Centre (Pty) Ltd and/or a third party Network Operator. Smart Technology Centre (Pty) Ltd and/or a third party Network Operator shall not be liable to you for any losses, liabilities, damages and claims and for any related costs and expenses suffered by you as a result of Smart Technology Centre (Pty) Ltd and/or a third party Network Operator performing any activity referred to in this clause.
2. More information on RICA can be found at https://www.gov.za/
3. RICA requires that you must obtain and keep certain information if you sell, buy, or otherwise provide (including providing a SIM card to your employee) a cellular phone or SIM card or if you lose or have a SIM card or cellular telephone stolen. You need to read and comply with these requirements. We have set these out together with other important information on what documentation you need to provide and or obtain and keep in our RICA document found here https://www.smartonline.co.za
Intellectual Property Rights
1. You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our services and/products.
2. You are prohibited from using any of Smart Technology Centre (Pty) Ltd Marks without the prior written approval of Smart Technology Centre (Pty) Ltd.
3. Other than as specifically provided in the product or service specific terms and conditions, Smart Technology Centre (Pty) Ltd will wholly and exclusively retain all existing Intellectual Property Rights and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to software used by Smart Technology Centre (Pty) Ltd, Its network infrastructure, e-commerce network infrastructure, business and the provision of any of the services in terms of the product or service specific terms and conditions.
Breach
1. Should you be in breach of any provision of this Agreement, other than the provisions of clause 13 above, or any provision of the service and product specific schedules, then Smart Technology Centre (Pty) Ltd shall be entitled, without prejudice to any other rights that it may have and without notice to you, to forthwith:
  1. Afford you a reasonable opportunity to remedy the breach; or
  2. Suspend your access to a service;
  3. Cancel all agreements concluded between us; or
  4. Claim immediate performance and/or payment of all your obligations in terms hereof.
  5. Should Smart Technology Centre (Pty) Ltd suspend, disconnect, or terminate your service, Smart Technology Centre (Pty) Ltd may charge you a fee for reconnecting your service.
Indemnity
1. You hereby unconditionally and irrevocably indemnify Smart Technology Centre (Pty) Ltd and agree to hold Smart Technology Centre (Pty) Ltd harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whenever arising, suffered or incurred by Smart Technology Centre (Pty) Ltd or instituted against Smart Technology Centre (Pty) Ltd as a result of (without limitation):
  1. Your use of our services or products;
  2. Your use of the password reminder service;
  3. Your failure to comply with the Terms and a provision of any Agreement concluded between us;
  4. Any unavailability of, or interruption in the service;
  5. Any other cause whatsoever relating to our provision of services or products to you.
Limitation of liability
1. We do not make any express or implied representations, warranties or guarantee regarding the availability, accuracy, reliability, timeliness, quality, or security of the service.
2. To the extent permitted by applicable law, Smart Technology Centre (Pty) Ltd shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal finally determines, notwithstanding the limitation contained in this clause, that Smart Technology Centre (Pty) Ltd is liable to you for any damages, Smart Technology Centre (Pty) Ltd liability to you for any damages howsoever arising shall be limited to the amounts paid by you under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.
Certificate of Indebtedness
1. The amount due and payable by you to Smart Technology Centre (Pty) Ltd in terms of any agreement between us at any time shall be determined and proved by a certificate signed by one of Smart Technology Centre (Pty) Ltd directors, whose appointment, qualification, and authority need not be proved.
2. Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against you, unless you have reason to direct a dispute in connection with a payment to us in accordance with the Billing Complaints Handling Procedure as contemplated in clause 8.
Cession and Delegation
1. You may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of this Agreement without the prior written approval of Smart Technology Centre (Pty) Ltd. Smart Technology Centre (Pty) Ltd shall be entitled to sell, cede, assign, delegate, alienate, dispose, or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without your consent and without notice to you. “Affiliates” for this purpose includes Smart Technology Centre (Pty) Ltd holding Smart Technology Centre (Pty) Ltd , the holding Smart Technology Centre(ies) of Smart Technology Centre (Pty) Ltd holding Smart Technology Centre (Pty) Ltd (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by Smart Technology Centre (Pty) Ltd or are under common control with Smart Technology Centre (Pty) Ltd
Jurisdiction
1. Notwithstanding clause 8 above, you hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by Smart Technology Centre (Pty) Ltd arising out of this Agreement, provided that Smart Technology Centre (Pty) Ltd shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 8 above.
Amendment of this agreement
Smart Technology Centre (Pty) Ltd reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our website on a regular basis in order to determine whether any amendments have been made.
General
1. The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No variation or addition of this Agreement or the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties.
2. Smart Technology Centre (Pty) Ltd is in terms of section 43 of the ECT Act required to make its contact details, its domicile citandi et executandii, and certain other information available to its Subscribers who enter into electronic transactions with Smart Technology Centre (Pty) Ltd. This information is available on request.
3. You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail.
4. No indulgence, leniency or extension of time which Smart Technology Centre (Pty) Ltd may grant or show to you shall in any way prejudice Smart Technology Centre (Pty) Ltd or preclude Smart Technology Centre (Pty) Ltd from exercising any of its rights in the future.
5. You warrant that as at the date of signature of the Application Form, all the details furnished by you to Smart Technology Centre (Pty) Ltd are true and correct and that you will notify Smart Technology Centre (Pty) Ltd in the event of any change to such details.
6. All our terms and conditions can be accessed, stored, and reproduced electronically by you.
7. The physical address where Smart Technology Centre (Pty) Ltd will receive legal service of documents/ domicilium citandi et executandi is the following:
  
  Block 10
  Townsend Office Park
  No. 01 Townsend Road
  Bedfordview
  South Africa
  2008

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