SMS IMPI TERMS AND CONDITIONS
1 SCOPE OF AGREEMENT
1.1 The parties agree to abide by the terms and conditions specified in this document which shall
take effect upon the Client using the services referred to herein.
1.2 Additional
to the terms and conditions as indicated in this document, the Client will
also need
to adhere to the Code of Conduct and Advertising Rules of the Wireless
Application
Service Providers’ Association (WASPA), as per the web site
http://waspa.org.za
1.3 The
Client intends to send and/or receive various Short Message Service messages
(SMSs) and
also offer premium rated SMS campaigns (referred to as “messages” in
this document)
to and/or from various subscribers who have GSM enabled devices
connected to the three local GSM networks in
1.4 Stouf
Communications (Pty) Ltd (Stouf) can receive, aggregate and deliver such messages
through the SMS Impi messaging platform, connected to the three GSM networks in
the local market.
1.5 The
Client will be activated on SMS Impi once he has completed the Registration
process
in SMS Impi. The related monthly subscription charge will be invoiced to the Client
on a monthly basis. Please refer to Annexure A – Pricing / Payment Terms / Cancellation
Terms & Procedures.
1.6 Following
registration and activation the Client will be able to log on to the SMS Impi
messaging
platform via the internet, using the log-in details as captured by the Client
during the
registration process. Once logged in, the Client has access to the SMS module (sending
MT messages) and the Campaign module (receiving MO messages) of SMS Impi.
1.7 A premium
rated message sent to SMS Impi by a subscriber is indicated by the
SMS Impi
system as a Mobile Originated (MO) message and a message sent by SMS Impi and received
by the participant/subscriber is indicated by the SMS Impi system as a Mobile Terminated
(MT) message.
1.8 Stouf
will leverage a cost per MT message sent and share revenue per premium rated MO
message received as per the pricing information. Refer to Annexure A for detail
on MT costs and premium rated MO message revenue sharing. The Client will be able
to effect purchases of SMS (MT message) bundles via the purchasing function within
the SMS module. The Client will be required to transfer the amount/s reflected on
the relevant invoice as requested by the SMS Impi system and to fax or e-mail proof
of payment to Stouf as requested by the SMS Impi system.
1.9 The
Client will be able to create and manage premium-rated SMS campaigns via the
Campaigns
module. The module offers various revenue share options, with clear instructions
as to the costs involved. The Client will be required to transfer the
amount/s
reflected on the relevant invoice as requested by the SMS Impi system and
to fax or
e-mail proof of payment to Stouf as requested by the Y’elloSMS system.
1.10 Stouf
will have the right to increase the current prices if and when one or more of
Stouf’s
network providers or channel partners increase their pricing structures that
result directly
in an increase in the cost to Stouf of providing the messaging service(s)
to the Client.
Stouf will notify the Client of such price increase immediately of it
becoming
effective. Furthermore, Stouf will have the right to periodically increase its
pricing
structure. However, Stouf will notify the Client of such price increase, at least
two months
in advance.
1.11 The
Client will then have the option to terminate this agreement on notice to Stouf
within 15
(fifteen) days from the date on which Stouf notified the Client of such price
increases.
1.12 The
Client shall pay all amounts due to Stouf according to the bank details as indicated
on the SMS Impi system.
1.13 Stouf
reserves the right to amend the account details on written notice to the Client.
2 COMMENCEMENT
AND DURATION
This agreement
shall commence on the date of activation of the Client Login and
thereafter
shall, continue indefinitely unless terminated on 1 (one) calendar month written
notice by either party to the other.
3 NUMBER
ALLOCATION AND KEYWORDS
The following
5-digit numeric premium rated MO numbers (“short codes”) are allocated by the local
GSM networks to Stouf for the SMS Impi service in order to offer a campaign service.
|
SMS Value
|
SMS CODE |
|
R 0.86
|
31391 |
|
R 1.00 |
32378
|
|
R 1.50
|
33960
|
|
R 2.00 |
34595
|
|
R 3.00 |
35686
|
|
R 5.00 |
36936
|
|
R 7.50 |
37797
|
|
R 10.00
|
38848
|
|
R 15.00 |
39969
|
|
R 20.00 |
40747
|
|
R 25.00 |
41131
|
|
R 30.00 |
42262
|
"Keyword”
means a string of alphanumeric text that is separated from other text in a MO SMS
by a “space” character before and after the Keyword. Each campaign in SMS Impi can
have up to three unique Keywords. The subscriber will have to make use of Keywords
in order to participate in SMS Impi campaigns.
4 REVENUE
SHARE ON PREMIUM RATED MESSAGES
The following
tables indicate the revenue share Stouf as a Wireless Application Service
Provider
(WASP) receives from the local GSM networks for premium rated services, called Third
Party Revenue (TPR).
For MTN
traffic:
|
TARIFF INCL. VAT
|
TARIFF EXCL. VAT |
TPR EXCL. VAT
|
% |
|
R 0.86 |
R 0.75 |
R 0.25 |
32.95% |
|
R 1.00 |
R 0.88
|
R 0.33 |
37.24% |
|
R 1.50 |
R 1.32
|
R 0.61 |
46.04% |
|
R 2.00 |
R 1.75
|
R 0.88 |
50.44% |
|
R 3.00 |
R 2.63
|
R 1.44
|
54.83%
|
|
R 5.00 |
R 4.39 |
R 2.56
|
58.35% |
|
R 7.50 |
R 6.58 |
R 3.95 |
60.11% |
|
R 10.00 |
R 8.77
|
R 5.35 |
60.99% |
|
R 15.00 |
R 13.16
|
R 8.14 |
61.87%
|
|
R 20.00 |
R 17.54 |
R 10.93 |
62.31 |
|
R 25.00 |
R 21.93 |
R
13.72 |
62.57% |
|
R 30.00 |
R 16.51 |
R 26.32
|
62.75% |
For Vodacom
traffic:
|
TARIFF INCL. VAT
|
TARIFF EXCL. VAT |
TPR EXCL. VAT
POST-PAID |
TPR EXCL. VAT
PRE-PAID |
|
R 0.90 |
R 0.79 |
R 0.30
|
R 0.26 |
|
R 1.00 |
R 0.88 |
R 0.37
|
R 0.33 |
|
R 1.20 |
R 1.05
|
R 0.52 |
R 0.46
|
|
R 1.50 |
R 1.32 |
R 0.75
|
R 0.66 |
|
R 2.00
|
R 1.75
|
R 1.12 |
R 0.99 |
|
R 3.00 |
R 2.63 |
R 1.86 |
R 1.66 |
|
R 5.00 |
R 4.39 |
R
3.36
|
R 2.98 |
|
R 7.50 |
R 6.58 |
R 5.22 |
R 4.64 |
|
R 10.00 |
R 8.77
|
R 7.08
|
R 6.29
|
|
R 15.00 |
R 13.16 |
R 10.81 |
R 9.60 |
|
R 20.00 |
R 17.54
|
R 14.54
|
R 12.91 |
|
R 25.00 |
R 21.93
|
R 18.27
|
R 16.23 |
|
R 30.00 |
R 26.32
|
R 22.00 |
R 19.54 |
For Cell
C traffic:
|
TARIFF INCL. VAT
|
TARIFF EXCL. VAT |
TPR EXCL. VAT
|
% |
|
R 1.00 |
R 0.88 |
R 0.29
|
32.89% |
|
R 1.50 |
R 1.32 |
R 0.59
|
44.52% |
|
R 2.00
|
R 1.75 |
R 0.89 |
50.63% |
|
R 3.00 |
R 2.63 |
R 1.48 |
56.37% |
|
R 5.00 |
R 4.39
|
R 2.68 |
60.94% |
|
R 7.50
|
R 6.58 |
R 4.17 |
63.32% |
|
R 10.00 |
R 8.77 |
R 5.66
|
64.51% |
|
R 15.00 |
R 13.16
|
R 8.64
|
65.66% |
|
R 20.00 |
R 17.54 |
R 11.62
|
66.26% |
|
R 25.00 |
R 21.93
|
R 14.61
|
66.60% |
|
R 30.00 |
R 26.32
|
R 17.59 |
66.82%
|
SMS Impi
allows the Client to choose the percentage of TPR he wishes to receive. The choices
are 0% (zero percent) or 20% (twenty percent) or 80% (eighty percent). The pricing
structures relating to these choices are detailed in Annexure A. Stouf will have
the right to change the TPR with immediate effect and without notice by Stouf to
the Client in an event where the applicable numbers/rates have been changed by the
local GSM networks. However, Stouf will endeavor to notify the Client in advance,
wherever possible, of such changes.
5. MESSAGING
SERVICE
5.1 Security
and Authentication:
Upon the
commencement of this agreement, the Client’s username and password will be
activated.
The Client’s username and password will be the only identifiers by which Stouf will
identify the Client whilst using the messaging service(s). It is the Client’s responsibility
to ensure that the username and password are handled with care and not used negligently.
The Client indemnifies Stouf against any claims, actions or damages as a result
of the fraudulent or unauthorized use of the Client’s username and password or loss
thereof.
5.2 Risks
and Indemnity:
Due to the
nature of messaging service(s), Stouf cannot be held responsible for risks
incurred
through the use of the messaging service(s), as well as all risks associated with
data security,
privacy, availability and reliability of messaging processing and transmission.
Thus, the Client is fully and exclusively liable for any and all risk resultant
from the use of the messaging service(s) and indemnifies Stouf against any and all
claims made by the Client, Clients of the Client or any third party in this regard.
5.3 Limitation
of Liability:
5.3.1 The
messaging service(s) and all information, products and other content (including
third party information, products and content) included in or accessible from the
messaging service(s), are provided voetstoots and are subject to change at any time
without
notice to the Client. To the fullest extent permitted by law, Stouf disclaims all
liability
for any representations and warranties (express, implied and statutory) as to
the messaging
service(s) and all information, products and other content (including
third party
information, products and content) included in or accessible from the
messaging
service(s).
5.3.2 In
no event shall Stouf be liable for any damages, claims, costs, expenses or losses
whatsoever which may be suffered by the Client, Clients of the Client or any third
party, including
but not limited to any direct, indirect, special, consequential, punitive
or incidental
damages, or damages for loss of use, profits, data or other intangibles,
or the cost
of procurement of substitute goods and services, arising out of or related
to the use,
resale, inability to use, unauthorized use, performance or nonperformance
of the messaging
service(s), or anything done or not done pursuant to
this agreement
even if Stouf has been advised previously of the possibility of such
damages
and whether such damages arise in contract, negligence, delict, under
statute,
at law or any other cause without limitation and whether this agreement is
cancelled
or not and the Client indemnifies Stouf against all and any claim/s in this
regard.
5.4 Access
to the messaging service(s):
Stouf shall
use all reasonable endeavors to ensure that the messaging service(s) are
available
on a 24-hour, 7 days-a-week basis.
The quality
of the messaging service(s) provided hereunder shall be consistent with industry
standards, government regulations and sound business practices.
Stouf’s
Support Process is detailed in Annexure B hereto.
The Client
is responsible for obtaining all devices and services necessary to enable
access to
the messaging service(s) and the use of such messaging service(s).
6. NATURE
OF MESSAGING SERVICES
6.1 Message
Delivery:
The Client
acknowledges and accepts that the provision of the messaging service(s)
may be enabled
through Stouf’s agreements with various mobile network operators
and Stouf
is therefore only able to act under the conditions imposed through such
agreements.
The receipt
of messages is subject to the availability and performance of the relevant
Network.
The originating network’s technical systems and network and cannot be
guaranteed
by Stouf. Specifically, messages submitted through a mobile network will be transferred
to/from the recipient’s mobile terminal within times ranging from a few seconds
to a few minutes depending on the conditions prevalent at the time of submission.
6.2 Message
Content:
The Client
accepts full responsibility for the content of messages transmitted by Stouf
on the Client's
behalf. The Client agrees not to submit any messages for transmission
by Stouf,
the content whereof is improper, immoral or unlawful or which contains any
violent,
offensive, discriminatory, illegal or pornographic material. The Client must
reasonably
ensure that the content of messages does not cause disturbance or
harassment
to the recipient thereof. Stouf is bound to ensure the delivery of a valued
service
and will not tolerate spamming of messages by the Client. Therefore the
Client is
not permitted to send messages to recipients who have advised that they do
not wish
to receive messages of a particular or any kind. Failure to abide by the
provisions
of this clause will result in the immediate and automatic suspension of
access to
the messaging service(s). In such event the Client shall forfeit all fees
previously
paid to Stouf and shall have no recourse to any such fees and the Client shall be
liable for and hereby indemnifies Stouf (including its agents, shareholders, employees,
officers and subsidiaries) against all and any claims, loss, costs, expenses or
damages howsoever caused as a consequence of the failure by the Client to abide
by the provisions of this clause.
6.3 Submission
of Large Message Volumes:
When the
Client requests a large number of messages to be transmitted the quality
of the messaging
service(s) may be degraded due to capacity and technical
constraints
imposed by the originating networks.
In such
instances, delays may be encountered and Stouf cannot be held liable for
consequences
resulting from such service degradation. Stouf shall use all reasonable
endeavors
to ensure, but cannot guarantee, that such delivery shall be made without
disruption.
6.4 Privacy
of Message Content:
6.4.1 The
handling of messages submitted through the local GSM networks is subject to
South African
privacy laws. Stouf may be required to maintain message logs of all
transmissions
and to further make such messaging transmission reports available to
government
and legal authorities upon explicit request.
6.4.2 The
Client acknowledges that messages are transmitted in an unencrypted format
and as such
Stouf cannot guarantee against eavesdropping of messages at any stage.
6.5 Changes
to Message Service Offerings and Content:
Stouf reserves
the right to modify, enhance, temporarily suspend and further develop
the messaging
service(s) or its service offerings and contents on notice to the Client.
7. CLIENT'S
RESPONSIBILITIES AND LIABILITY
7.1 Malicious
Disruptions and Damages:
Should the
Client be implicated of malicious disruptions or damages to the messaging
service(s),
the Client shall be liable for all damages (whether direct or indirect) and
associated
costs resultant from such malicious activity.
7.2 Termination
of the Messaging Service(s):
7.2.1 At
any time during the tenure of this agreement, the Client acknowledges that Stouf
reserves the right to suspend or terminate the Client’s username and/ or password,
discard and remove any content, for any reason, including without limitation, for
nonuse of the messaging service(s) or if Stouf, in its reasonable opinion, believes
that the Client has contravened or breached any provision of this agreement on notice
to the Client.
7.2.2 The
Client also fully understands, accepts, and further indemnifies Stouf fully against
any claims by the Client or any third party as a result of such termination of the
messaging
service(s), or part thereof.
8. MESSAGING
BILLING METHODOLOGY:
The Client
agrees to pay the fees and charges to Stouf as indicated by the SMS Impi system
dependent on the type of service(s) requested by the Client. Refer to Annexure A
for more detail on costs related to these services. Should there be a disputed transaction,
Stouf shall endeavor to make the necessary investigations to the best of its abilities
and attempt to rectify the discrepancy, but should such investigations prove to
be inconclusive, the message transaction logs, as maintained by Stouf shall be deemed
to be true and accurate for accounting purposes.
A message
will be billed for, once that message has been successfully submitted to Stouf’s
gateway. The Client’s account will however be refunded with the relevant amount
of message credits if messages could not be sent due to direct related problems
with Stouf’s messaging platform, the networks messaging infrastructure or wrongful
information on Stouf’s messaging platform regarding network availability.
9. COMPLAINTS
All complaints
relating to the messaging service(s) provided to the Client must be directed to
Stouf, in writing and within 7 business days of the event causing the objection
at the following address.
P.O. Box
1595
Glenvista
2058
South Africa
Marked for
the attention of “Financial Director, Stouf Communications (Pty) Ltd”.
10. INTELLECTUAL
PROPERTY RIGHTS
The information,
media, systems, content and messaging service(s) provided by Stouf for the Client’s
use, including all intellectual property rights therein, is the sole property of
Stouf and the Client shall at no stage acquire any rights therein or thereto.
11. APPLICABLE
LAW
The laws
of the Republic of South Africa govern this agreement. The Client fully
acknowledges
that any disputes resulting in legal intervention shall be concluded within the
jurisdiction of the Republic of South Africa and that the applicable laws of the
Republic of South Africa shall prevail.
12. INTERPRETATION
AND NULLIFICATION OF CLAUSES
12.1 Both
parties agree to all aspects of this agreement and shall comply with all laws,
regulations
and restrictions that apply to them.
12.2 Any
delay in the enforcement of any term of this agreement shall not be deemed to
be waiver
of such right(s).
13. ADDRESSES
13.1 The
Client’s address and fax number for the delivery of all notices, including any
legal notices,
shall be the address and fax number provided by the Client on his
online account.
13.2 Stouf’s
address for the delivery of all notices (excluding the address for billing related
documentation which is indicated on the SMS Impi system), including any legal
notices,
shall be:
14 Esmaralda
Crescent,
Robindale,
Randburg.
2194
South Africa
Fax No:
+2786 652 9846
Marked for
the attention of “Financial Director, Stouf Communications (Pty) Ltd”.
13.3 A party
may at any time change that party’s address and/or fax number on 10 (ten) days notice
in writing to the other provided that the chosen address consists of or
includes
a physical address.
13.4 Any
notice given in connection with this agreement shall be delivered by hand or be
sent by prepaid registered post or be sent by telefax subject to delivery confirmation.
13. 5 Notice,
as set out above shall be deemed to have been duly given if delivered on
the first
business day after the date of delivery and if sent by post 10 days after posting
and if sent by telefax on the first business day after the telefax is transmitted.
14. BREACH
14.1 Notwithstanding
anything to the contrary contained in this agreement, should any
party ("the
defaulting party") commit a breach of any provision of this agreement and fail to
remedy such breach within 14 (fourteen) days of receiving a written notice from
the other party ("the aggrieved party") requiring the defaulting party to do so,
the aggrieved party shall be entitled, in addition to its other remedies in law
or in terms of this agreement, to cancel this agreement forthwith and without prejudice
to its right to claim damages; provided that if the defaulting party commits two
or more breaches of any provision of this agreement in any 6 (six) month period
of this agreement, irrespective of whether or the breach is remedied by the defaulting
party, the aggrieved party shall be entitled, without prejudice to any of its other
rights or remedies in law or under this agreement, to terminate this agreement forthwith
by notice in writing to the defaulting party.
14.2 In
the event that Stouf terminates this agreement in terms of clause 12.1, the Client
shall forfeit all fees previously paid to Stouf and shall have no recourse to any
such fees, including service fees, and the Client shall be liable for and hereby
indemnifies Stouf (including its agents, shareholders, employees, officers and subsidiaries)
against all and any claims, loss, costs, expenses or damages howsoever caused as
a consequence of the failure by the Client to abide by the provisions of this clause.
15. SEVERABILITY
If any provision
in this Agreement is found by any court of competent jurisdiction to be
invalid,
unlawful or unenforceable, such provision shall not invalidate the remaining
provisions
of this Agreement.
16. MOBILE
NUMBER PORTABILITY
Until further
notice, Stouf cannot support a return path service (MO messaging) for numbers that
have been ported and the Client will have no claim against Stouf in this regard.
ANNEXURE
A – PRICING / PAYMENT TERMS / CANCELLATION TERMS & PROCEDURES
All prices include VAT
Monthly
Subscription Fee:
ZAR 100.00
The monthly
subscription charge will be invoiced to the Client on a monthly basis. The first
invoice will include a pro-rata portion of the subscription charge for the month
of registration, together with the full monthly subscription charge for the following
month.
Payment of the monthly invoice is to be made within 14 (fourteen) days of date of
invoice.
This is
a month-to-month agreement and can be cancelled at any time by the Client by giving
Stouf 1 (one) calendar month notice via an email to
support@stouf.com
MT SMS Batch
Purchases:
|
Batch of 500 SMS’s: |
R 0.33 per SMS |
R 165.00 |
|
Batch of 1,000 SMS’s: |
R 0.31 per SMS |
R 310.00 |
|
Batch of 2,000 SMS’s: |
R 0.29 per SMS |
R 580.00 |
|
Batch of 5,000 SMS’s:
|
R 0.27 per SMS |
R1 350.00 |
|
Batch of 10,000 SMS’s: |
R 0.25 per SMS |
R2 500.00
|
The Client
will order MT SMSes online in SMS Impi. Upon completion of the order SMS Impi will
generate a pro-forma invoice. The client will deposit the required amount into the
bank account reflected on the pro-forma invoice. The Client will then email the
pro-forma invoice and the proof of payment to
finance@stouf.com
Upon receipt of
the proof of payment Stouf will release the SMSes and update the Client account
in SMS Impi. Stouf Finance will be available for this process during normal office
hours only.
Should the
Client cancel the agreement any SMSes remaining at the end of the notice period
will be forfeit.
Price Structure
for Premium Rated SMS campaigns:
If the Client elects to receive 0% (zero percent) of TPR
The once-off Set-up Fee per campaign will beR900 (Nine Hundred
Rands).
The monthly Management Fee per campaign will be R0 (zero Rands).The cost of the
(optional) return path SMS will R0 (zero Rands), BUT a return
path SMS will only be allowed where the SMS Value (see 3 above) is at least R1.50
(One Rand and Fifty Cents).
If the Client elects to receive 20% (twenty percent) of TPR
The once-off Set-up Fee per campaign will be R900 (Nine Hundred
Rands).
The monthly Management Fee per campaign will be R0 (zero Rands).
The (optional) return path SMS will be charged atR0.25 (Twenty
Five Cents), BUT a return path SMS will only be allowed where the SMS Value (see
3 above) is at least R1.50 (One Rand and Fifty Cents). The cost of
the reply SMS will be deducted from the Client’s share of TPR.
SMS Impi will send the Client a monthly statement of account via email, together
with a request for invoice. Upon receipt of the Client’s invoice Stouf will effect
payment.
NOTE: If the statement amount is less than R500 (five hundred Rands) per campaign
Stouf will NOT effect payment and the actual amount will be forfeit.
If the Client elects to receive 80% (eighty percent) of TPR
The once-off Set-up Fee per campaign will be R900 (nine hundred Rands).
The monthly Management Fee per campaign will be R500 (five hundred Rands).
The (optional) return path SMS will be charged to the Client at
R0.25 (Twenty Five Cents), BUT a return path SMS will only
be allowed where the SMS Value (see 3 above) is at least R1.50 (One Rand and Fifty
Cents)The cost of the reply SMS will be deducted
from the Client’s share of TPR.
SMS Impi will send the Client a monthly statement of account via email, together
with a request for invoice. Upon receipt of the Client’s invoice Stouf will effect
payment.
NOTE: If the statement amount is less than R500 (five hundred Rands) per campaign
Stouf will NOT effect payment and the actual amount will be forfeit.
Applicable
Dates:
Stouf will
present a statement to the Client between the 20th and 30 of each month for the
previous month’s figures, requesting the Client to submit an invoice for payment.
Stouf will
pay against the invoice received only once the Networks have settled with Stouf,
which is usually within about 60 days from receipt of invoice.
NOTE: If the statement amount is less than R500 (five hundred Rands) per campaign
Stouf will NOT effect payment and the actual amount will be forfeit.
ANNEXURE
B - SUPPORT PROCESS
The Technical
Support Helpdesk, Sales Team and Financial/Administration Support Team shall be
operated between the hours of 08:00 to 17:00 (GMT +2) on normal business days.
Contact
Details: