APPLICATION OF THESE TERMS
The SMXpress messaging service (“the Service”) operated by SMXpress (“SMXpress”) is a service in which SMS messages are used as a communication tool between an institution (“Institution”) and its clients. 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 SMXpress web site (“Site”) and Service you agree that you have read and agreed to be bound to these TOS. SMXpress 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 messages from the Site and 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.
Cost of service (Pay Per SMS Service)
The Pay Per SMS Service is charged at a rate of published.
SMXpress reserves the right to revise prices previously quoted for either service at any time .
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. In particular, to register and receive the sign-up Information pack you must provide your correct email address. If you provide any information that is untrue, inaccurate, not current or incomplete, or SMXpress has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SMXpress 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).
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 SMXpress. You agree to notify SMXpress 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. SMXpress has no obligation to monitor the Service or any user’s use thereof or retain the content of any user session. However, SMXpress 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.
FAIR USAGE POLICY (UNLIMITED SMS SERVICE)
SMXpress’s Fair Usage Policy is designed to make sure your Unlimited SMS Service is quick and reliable whenever you use it, and to ensure that the service remains relevant and cost-effective for all Institutions.
FAIR USAGE CRITERIA
The Service has several unique built-in features that enable Institutions to use it efficiently. Fair Usage constitutes (but is not limited to): setting up and using Groups and Filters to ensure relevancy of messages to recipients; not sending the same message out repeatedly, which simply annoys recipients and reduces the effectiveness of the system; using the Service for official, important and relevant messages only; not using the service for unauthorized commercial advertising purposes. All Institutions using the Unlimited SMS Service are expected to adhere to the letter and spirit of the Fair Usage Policy and Guidelines, as this has a direct bearing on SMXpress’s ability to deliver the Service at a fair price.
EXCESSIVE AND INAPPROPRIATE USAGE
It is incumbent on the Institution to limit and prevent inappropriate and excessive usage of the Unlimited SMS Service, examples of which include (but are not limited to): sending messages intended for a group, class or grade to the whole school; sending Afrikaans messages to English-speaking parents, and vice versa; sending messages repeatedly to the same recipients; using the Service for personal messages such as birthday greetings etc. using the service to send out unauthorized commercial advertising messages. Institutions that misuse the Service will be offered the opportunity to be re-trained on correct usage of the system. After re-training, institutions that continue to misuse the Service will be sanctioned, as per section 7.4 below.
In the event of unusual and/or unforeseen circumstances that will potentially give rise to unanticipated and/or prolonged high usage of the Unlimited SMS Service, e.g. strikes, industrial action, Acts of God and so on, institutions are (and will be) encouraged to use SMXpress’s free iText service to keep members/students/parents informed and up to date. SMXpress reserves the right to levy an additional charge per unique cell phone number to cover the increased costs incurred if an Institution elects not to use the iText service under these circumstances.
Any Institution that, in SMXpress’s opinion, is using the Unlimited SMS Service in a manner that is likely to jeopardise the future effectiveness, efficiency and viability of the Service, either for that Institution or for the Service as a whole, will have a ‘soft cap’ applied to their Service, which will automatically limit the number of SMS’s available to them in any month. If the application of the ‘soft cap’ does not achieve the desired effect, SMXpress reserves the right to switch the institution to its Pay Per SMS Service.
Definition of a soft cap
A soft cap is a system based number which allows an institution to send only a limited number of SMS’s per month. If an institution hits their soft cap in a month and subsequently needs to send urgent or important messages they will need to contact SMXpress to have the cap lifted for those messages. However the cap will be reinstated at the beginning of every month until such time as, in the opinion of SMXpress, the institution is no longer misusing the Service.
MODIFICATIONS TO SERVICE
SMXpress reserves the right to modify the Service, either in general or for any particular school or institution, including switching schools and/or institutions from its Unlimited SMS Service to its Pay Per SMS Service and vice versa, with or without notice. SMXpress shall not be liable to you or any third party should SMXpress exercise its right to modify the Service.
From time to time sponsorships (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 SMXpress reserves the right to modify, alter or enhance the Service to fulfil said requirements. In return, each school that receives a sponsorship agrees to grant the sponsoring party/s access to its parents for marketing purposes.
You agree that SMXpress, 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 SMXpress 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 SMXpress 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. SMXpress may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, without notice. Further, you agree that SMXpress 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.
SMXpress grants you a personal, non-transferable and non-exclusive right and license to use the object code of any necessary software provided by SMXpress 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 SMXpress for use in accessing the Service.
LIMITATIONS OF LIABILITY
To the extent permitted by law, SMXpress 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 SMXpress 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.
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, SMXpress 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 SMXpress, 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.
SMXpress and SMXpress.co.za are trademarks of SMXpress (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 SMXpress 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.
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.
If any dispute of any nature whatsoever shall arise between the you and SMXpress 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