Terms and Conditions

1.               INTERPETATION AND DEFINITIONS

1.1            In these terms and conditions, unless clearly inconsistent with or otherwise indicated by the context, the following words and phrases shall have the corresponding meaning assigned to them and cognate expressions shall have similar meanings -

1.1.1           "Acceptance Notice" means a notice sent in Writing by a party hereto to the other expressing an intention to use the Service pursuant to the provisions contained in s5 of the RIC Act read with sections 12, 13 and 15 of the ECT Act;

1.1.2           “Cellfind” means Cellfind (Proprietary) Limited, a company duly incorporated and registered in terms of the laws of the Republic of South Africa with registration number: 2003/020255/07 and having its principal place of business at 142, 16^th Road, Halfway House, Midrand;

1.1.3           “Charges” means any and all fees payable by the CLIENT to Cellfind as consideration for the Subscription and/or transactions, which fees are set out in Annexure A;

1.1.4           “Code of Conduct” means the Wireless Application Service Provider Association Code of Conduct governing the use of all service/s and available at www.waspa.gov.za and may be amended from time to time and attached as Annexure C to this agreement.

1.1.5           "Data message" means data generated, sent, received or stored by electronic means as contemplated in terms of the provisions contained in the ECT Act;   

1.1.6           "ECA" means Electronic Communications Act 36 of 2005, as amended from time to time;

1.1.7           “ECT Act” means Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;   

1.1.8           "GSM" means Global System for Mobile Communication;

1.1.9           "IMEI" means International Mobile Equipment Identity is a number unique to every GSM which is used by Network Operators to identify valid Locatable Cell Phones;  

1.1.10        “Inappropriate Use” means any use of the Service for illegal purposes contemplated in inter alia the ECA, ECT Act, RIC Act and/or pursuant to the regulations contained in the Telecommunications Act and/or for any purposes as may reasonably be determined by Cellfind to be violating the rights and/or dignity of any individual or entity, including but not limited to any and all rights of privacy, any intellectual property rights (including but not limited to trademark or copyright), as well as any use that could reasonably be interpreted as defamatory, offensive, discriminatory or intimidating;

1.1.11        “The CLIENT” means the entity that entered into agreement with Cellfind to use the Service.

1.1.12        "MSISDN number" means a mobile station international integrated services digital network number;

1.1.13        “Network Operators” means a mobile cellular telecommunications service licensee issued with a license to provide mobile cellular telecommunications services pursuant to s37 of the Telecommunications Act read with s92(1) and s95(2) of the ECA;

1.1.14        "Parties" means Cellfind and the CLIENT;

1.1.15        “PIN”      means a unique personal identification number required for the purposes of using the Service, which Service is accessible from a designated and secure Website;

1.1.16        "Registration" means the expression of intent sent by the CLIENT to Cellfind to use the Service and the processes related thereto;

1.1.17        “RIC Act” means the Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002, as amended from time to time;

1.1.18        “Service” means the access to Cellfinds gateway via the portal, API or any other connection that will allow the CLIENT to transact trough bulk OBS,EBB, SMS, Premium Rated, Location Based Service or any other online product provided by Cellfind.

1.1.19        "SMS" means a short messaging service and is a communications protocol which allows for the interchange of short text messages between mobile telephone devices and the service;

1.1.20        “Subscription” means the monthly access charges payable by the CLIENT in order to use the service.

1.1.21        "Support" means technical support offered by Cellfind to the CLIENT in order to render assistance to the Users on the use of the service from time to time;

1.1.22        "Telecommunications Act" means the Telecommunications Act 103 of 1996, as amended;

1.1.23        "Termination Notice" means a notice sent in Writing by a party hereto to the other expressing an intention to terminate and/or cancel the use of the Service pursuant to the provisions contained in s5 of the RIC Act read with sections 12, 13 and 15 of the ECT Act;

1.1.24        "the/these terms and conditions" means the terms and conditions contained in this document;

1.1.25         “Username” means the unique identity allocated to the CLIENT;

1.1.26        "USSD" means unstructured supplementary service data;

1.1.27        “WASPA” means Wireless Application Service Providers Association; 

1.1.28        “Website” means the secured website with its current address being www.cellfind.co.za / www.cellfindportal.co.za/gw  or such other domain and/or website as may be owned and/or operated by Cellfind in connection with the Service from time to time; and

1.1.29        "Writing" means writing as envisaged in terms of the provisions and regulations done pursuant to s12 of the ECT Act, and for the purposes contemplated in these terms and conditions shall be a transmission of a data message in the form of an SMS transmitted between the CLIENT and the Users as may be required from time to time;

1.1.30        any reference to the singular includes the plural and vice versa;

1.1.31        any reference to natural persons includes legal persons and vice versa;

1.1.32        any reference to a gender includes the other genders.

1.1.33        If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only contained in the definitions clause, effect shall be given to it as if it were a substantive provision in these terms and conditions.

1.1.34        These terms and conditions shall be interpreted in accordance with and governed by the laws of the Republic of South Africa, notwithstanding the fact that any instruction emanated from outside the borders of the Republic of South Africa.

2.               INTRODUCTION

2.1            The CLIENT is entering into an agreement with Cellfind to access and use the products and services as specified in Annexure A.

2.2            The CLIENT will be bound at all times by the terms and conditions set out below.

3.               REGISTRATION, USE AND ACCEPTANCE

3.1            Cellfind acknowledges receipt of the Registration on signature of the primary aggregation agreement or electronic registration on the service allowing the CLIENT access to transact.

3.2            The continued use of this Service by the Client is subject, at all times, to the terms and conditions contained herein, and the Users agree to at all times for the Duration of the Service to remain bound by the terms and conditions contained herein.

3.3            Cellfind shall, by notice sent in Writing to the CLIENT, inform the CLIENT of any amendment of the terms and conditions from time to time, and the CLIENT shall have an option to terminate the service by sending a Termination Notice to Cellfind. In such event the Service shall terminate. Upon receipt of such Termination Notice by Cellfind, Cellfind shall send a notice in Writing to the CLIENT confirming the expressed intent of the CLIENT.

4.               SERVICE TO BE SUPPLIED

4.1            Cellfind agrees that for so long as the CLIENT continues to render payment to Cellfind as set out in Annexure A for the use of this Service, it agrees to provide the CLIENT with this Service.

4.2            In making use of the Service, the CLIENT hereby acknowledges, understands and accepts that Cellfind is not acting as an agent or sub-contractor on behalf of any of the Network Operators, but is the principal contracting entity with the CLIENT. 

5.               WARRANTIES AND OBLIGATIONS

5.1            The CLIENT acknowledges and accepts that Cellfind reserves the right to accept or decline any application based on the credit history of the applicant and further authorise Cellfind to access its credit history through the credit bureau or any other agency to its disposal.   

5.2            The CLIENT acknowledges and accepts that availability, quality and coverage of the Service may be limited from time to time and further, that the Services may from time to time be unavailable and/or adversely affected inter alia:

5.2.1           GSM network availability; 

5.2.2           Local Network connectivity;

6.               OBLIGATIONS OF CELLFIND

6.1            Cellfind shall provide the Service to the CLIENT subject to the terms and conditions contained herein.

6.2            Following approval of application of the CLIENT, Cellfind will acknowledge to the CLIENT and will issue a unique Username and PIN/Password.

6.3            Cellfind may provide the CLIENT with support, via the Website or a telephone helpline, in connection with the Services during normal business hours.

6.4            Cellfind reserves the right and in its absolute discretion to withhold/terminate the service  upon Cellfind becoming inter alia aware of any Inappropriate Use of the Service by the CLIENT, and shall not be held liable in any manner whatsoever to any other party whatsoever when Cellfind exercises its right to do so as contained herein

COSTS

6.5            In consideration for the use of the Service the CLIENT shall pay to Cellfind the Charges as specified and agreed to a published.

6.6            All Charges contained in the tariffs schedule are inclusive of VAT unless indicated otherwise and are subject to change from time to time. Cellfind shall provide notice in Writing to the CLIENT informing the CLIENT of such amendments in this regard.

6.7            In the event that the CLIENT fails to pay the Subscription and charges, Cellfind shall suspend the Service until such time as the Charges and/or Fees are paid in full by the CLIENT. In the event that the Charges remain unpaid after expiry of the debit period, Cellfind shall be entitled to terminate the service with immediate effect.

7.               NON-LIABILITY AND INDEMNITY

7.1            Neither Cellfind nor its holding company and/or any of its affiliates and/or the Network Operators and/or any of their respective shareholders, directors, employees and/or agents shall be liable to the CLIENT and/or any third party in any manner whatsoever for any losses, expenses, costs or damages of whatsoever nature as may be incurred and/or suffered by the CLIENT and/or any third party whosoever, whether directly and/or indirectly, in any relation whatsoever to the usage by the CLIENT of the Service and/or any non-availability of the Service and/or in any other manner whatsoever in relation to the Service.

7.2            The CLIENT accordingly hereby indemnify Cellfind, its holding company, its affiliates, the Network Operators, as well as all of their respective shareholders, directors, employees or agents (hereinafter referred to as the “indemnified parties”), and shall keep such indemnified parties harmless at all such times, as against any and all liability, loss (including consequential loss), costs and/or damages whatsoever and howsoever arising, as may be suffered by the CLIENT and/or any third party as arising from and/or in connection with the Service, whether or not attributable to any act or omission of the indemnified parties; negligence and/or otherwise.

8.               DURATION AND TERMINATION

8.1            The Service will automatically renew at the end of the Subscription unless the CLIENT terminates his or her use of the Service.

8.2            The CLIENT may, at any time terminate and/or cancel the Service by sending a Termination Notice to Cellfind. The Service shall terminate accordingly. Upon receipt of such Termination Notice by Cellfind, Cellfind shall send a notice in Writing to the CLIENT confirming the expressed intent of the CLIENT.

8.3            Cellfind shall by notice in Writing to the CLIENT inform the CLIENT of Cellfind's discontinuation, amendment and/or alteration of the Service where applicable from time to time, and the CLIENT shall upon receipt of  written notice from Cellfind either elect to send an Acceptance Notice or send a Termination Notice to Cellfind. In the event that the CLIENT sends a Termination Notice to Cellfind, the Service shall terminate accordingly. Upon receipt of either an Acceptance Notice or Termination Notice by Cellfind, Cellfind shall send a notice in Writing to the CLIENT confirming the expressed intent of the CLIENT.

9.               GENERAL

9.1            The failure by Cellfind to exercise and/or any delay by Cellfind in exercising any right, power, or privilege that it may have in terms of these terms and conditions shall not operate as a waiver of such right, power, or privilege, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of same, or the exercise of any other right, power or privilege.

9.2            If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, then the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected.

9.3            Any complaints and queries which the CLIENT may have should be directed to our allocated support number or the service division at support@cellfind.co.za as specified on the from time to time. If the complaint cannot be resolved within 10 (ten) working days after having been referred to the customer service division, the dispute will be referred to arbitration in terms of the rules of the Arbitration Foundation of Southern Africa (“AFSA”). The arbitrator shall be appointed by AFSA and the unsuccessful party shall pay the costs of arbitration. Only the CLIENT and his or her representative(s) and Cellfind and its representative(s) may attend the arbitration. Both the CLIENT and Cellfind shall keep the fact that a dispute has arisen, the record of the arbitration proceedings as well as the arbitrator's decision, confidential. Notwithstanding the above provisions, we retain the right to institute action in any court of law with jurisdiction to obtain urgent, interim relief or to collect outstanding debts due and payable by the CLIENT.

9.4            These terms and conditions shall contain the sole agreement as between the  CLIENT and Cellfind in relation to its subject matter.

10.            NOTICES AND DOMICILIUM

10.1          Cellfind chooses the Service Number as its domicilium citandi et executandi for all purposes arising out of or in connection with these terms and conditions.

10.2          Any notice shall be in Writing as contemplated in these terms and conditions.

10.3          Cellfind may at any time advise the CLIENT of any change to its domicilium

10.4          All notices by Cellfind may be given or sent to the Users by sending same electronically and all such notices so sent shall be deemed to have been received on the business day following the day on which same shall have been sent electronically or domicilium citandi et executandi as recorded.

11.            BREACH

In the event that the Parties to these terms and conditions breaches any term or fails to perform any of its obligations in terms of the provisions of these terms and conditions or the provisions of any other agreement which it may have with Cellfind and/or where applicable the Network Operator, either party shall be entitled, upon giving the party and/or the Parties in breach hereof 48 (forty-eight) hours notice in Writing to remedy the breach, failing which such party shall be entitled to then cancel and/or terminate the  Service with immediate effect, without prejudice to any rights it may have in law or otherwise including but not limited to its rights to recover -

11.1          any amounts due by either party to the other in terms of the provisions of these terms and conditions; and

11.2          any loss or damage suffered by a party as a consequence of the breach by any of the Parties of any provisions of these terms and conditions.

12.            GOVERNING LAW

The terms and conditions contained herein shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.

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