1.1 WHEREAS NOTAFY (Pty) limited (“the COMPANY”) is the proprietor of an application titled “NOTAFY” which offers the service of real-time transmission of messages to an appropriate mobile device, allowing you to connect and receive same from any company, service provider, news agency, manufacturer, association, charity et cetera who subscribes to NOTAFY(“the Subscribers”).
1.2 AND NOTAFY allows you the choice to subscribe to the Subscribers messages and once accepted , you will receive their notifications and updates which will contain information pertaining to their businesses, including but not limited to; advice, services, sales, discounts et cetera.
1.3 NOW THEREFORE you agree by clicking on the acceptance icon for these terms and conditions that the below terms and conditions will govern your relationship between the COMPANY and the Subscriber (“collectively the parties”). If you choose not to agree with any of these terms and conditions, you may not use NOTAFY.
2. TERMS AND CONDITIONS
2.1 You warrant that you are over 18 years of age and if you are not, then you will forward consent from your parents or guardian to use NOTAFY.
2.3 The COMPANY is the proprietor and author of NOTAFY and you will not duplicate, transfer, give access to, copy or distribute any part of NOTAFY in any medium without the COMPANY’s written consent. In addition, you will not attempt to reverse engineer, alter or modify any part of NOTAFY.
2.4 NOTAFY is provided to you ‘as is’ and the COMPANY does not warrant any service, functionality et cetera outside of its existing service and functionality. In addition we do not guarantee its compatibility with your mobile device, tablet or PC.
2.5 In order to access and use the features of NOTAFY, you acknowledge and agree that you will have to provide the COMPANY with your mobile number and name.
2.6 You expressly acknowledge and agree that in order to continue providing services for NOTAFY, the COMPANY may periodically access your contact list and/or address book on your mobile phone to find and keep track of Subscribers.
2.7 All information provided by you must be accurate and correct.
2.8 You understand that when using NOTAFY, you will be exposed to messages from a variety of sources, and that the COMPANY is not responsible for the accuracy, usefulness, safety et cetera.
2.9 Information provided by NOTAFY Subscribers through messages may contain links to third party websites that are not owned or controlled by the COMPANY or NOTAFY. The COMPANY and NOTAFY has no control over, and assumes no responsibility for, the content, viruses, privacy policies, or practices of any third party websites.
2.10 Please notify the COMPANY in the event that you receive messages that are misleading as to their category resulting in ‘ambush marketing' or you are of the opinion that the Subscribers are misusing or are bombarding you with unwanted messaging. Also notify us if the messages are defamatory, unlawful, pornographic, rude, insensitive, belittling, vulgar, racist, harassing, incite hatred and violence, sexist, are in breach of any intellectual property rights, or contain any viruses.
2.11 NOTAFY only acts as a repository of data, and messages do not necessarily represent the views or opinions of the COMPANY.
2.12 All messages have a life span of 12 months and will eventually be deleted off NOTAFY and no further record will be kept.
2.13 The design, logo and get-up of NOTAFY (whether registered or not) or any modification or development are the property of the COMPANY and you have no right and title to such intellectual property.
2.14 You must notify the COMPANY immediately of any breach of these terms and conditions, breach of security, a virus or unauthorised use of your mobile phone, tablet or PC.
3. PRIVACY STATEMENT
3.1 The COMPANY recognises the importance of protecting your privacy and will not disclose any information of yours to advertisers or marketers unless specifically requested by you. Subscribers already have your details and are simply moving from using the SMS service to the instant messaging service and we are simply facilitating this process, and to this end you indemnify the COMPANY from any liability therein. Notwithstanding the aforesaid you shall not be entitled to cede or assign your rights and obligations hereunder to any third party without prior written consent of the COMPANY. The COMPANY is however entitled to cede or assign its rights and obligations hereunder to any third party without your consent.
3.2 In the event that the COMPANY and/or NOTAFY is acquired by or merged with a third party entity, we reserve the right to transfer or assign the information we have collected from our users as part of such merger, acquisition, sale or other change or control.
4.1 You use NOTAFY entirely at your own risk and any messages received by you are received entirely at your own risk.
4.2 You will indemnify and if necessary defend the COMPANY from any claim by you, any Subscriber or third party for any cause whatsoever including but not limited to any claim relating in respect of the use of NOTAFY, the content of any message, breach of any intellectual property laws, breach of privacy et cetera. You specifically acknowledge that the COMPANY shall not be liable for viruses (whether introduced by us or a third party), Subscriber messages, whether they be defamatory, offensive, or illegal, or the conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.
4.3 Accordingly the COMPANY shall not be liable under any circumstances for any direct, indirect, special or consequential loss or damage (whether for profit or loss or otherwise), costs, claims, expenses, royalties, usage rights, publication of images or materials placed on NOTAFY generally or other claims for compensation/fees whatsoever, whether caused by the acts, omissions or the negligence of the COMPANY, its employees, agents or service providers.
4.4 The COMPANY does not accept any liability for any loss of materials or theft or misappropriation thereof occasioned by the use of NOTAFY. In addition, the Company will not be liable for any costs of data when downloading NOTAFY or using NOTAFY and these costs will all be for your account.
5.1 This agreement will continue indefinitely subject to either party having the right to terminate with immediate effect and without reason via notice on NOTAFY.
5.2 In the event of breach of any of these terms, NOTAFY reserves the right to claim outstanding monies owed (if any) and/or damages it has suffered and will be entitled to legal costs on an attorney client scale, counsel on brief, collection commission and interest at the rate of prime (as determined by Nedbank Limited) plus 2% per annum on the recovery of any amount outstanding until date of final payment.
6.1 If any dispute arises in respect of the interpretation of these terms and conditions or any performance in terms thereof, such dispute will be referred to the directors of the COMPANY or their nominee who will make a binding decision. The dispute will be submitted electronically and decided on such documents submitted without entering into any oral evidence. Such dispute must be submitted within 7 (seven) days of you becoming aware of it, failing which you will not be entitled to submit such dispute unless agreed to by the COMPANY.
6.2 The COMPANY will make a decision as to such complaint within 30 (thirty) days and such decision will be binding on you, the Subscriber and the COMPANY unless there is manifest error.
6.3 In the event that there is manifest error or any party will not honour or put into effect, the COMPANY's decision, the aggrieved party may refer the matter to arbitration at his/her or their own cost in terms of the Arbitration Foundation of Southern Africa (“AFSA”) rules within 30 (thirty) days of the decision being made by the COMPANY. In the event that any party does not refer within the time period as stipulated they shall not be entitled to do so thereafter.
6.4 The arbitration shall be held -
6.4.1 at Johannesburg;
6.4.2 as soon as is reasonably practicable in the circumstances and with a view to it being completed within 30 (thirty) days. The parties shall use their best endeavours to procure the expeditious completion of the arbitration.
6.5 The arbitrator shall be a practicing attorney of at least 10 (ten) years standing as such, agreed upon between the parties to the dispute, provided that should such parties fail to agree on an arbitrator within 3 (three) days after the dispute is referred to arbitration, the arbitrator shall, at the written request of either party, be appointed by the president for the time being of AFSA or its successor.
6.6 The decision of the arbitrator will be final and binding on all parties concerned and can be made an order of court.
6.7 Nothing in the clause will prevent any party to the dispute from approaching the High Court should urgent relief be required.
7. INTERUPTION, SUSPENSION, TERMINATION OF THE WEBSITE
The COMPANY reserves the right in its sole discretion without notice to you, to suspend or terminate NOTAFY as whole or in part and to change the software and/or hardware required to gain access to NOTAFY.
8.1 These terms and conditions contain all the express provisions agreed to by you with regard to the subject matter and supersedes and novates in its entirety any previous understandings or agreements between us in respect thereof, and you waive the right to rely on any alleged provision not expressly contained herein.
8.2 No variation, modification, addition, cancellation or suspension of these terms and conditions shall be of any force, or effect, unless agreed to by the COMPANY in writing. The COMPANY reserves the right to update these terms and conditions in its sole discretion from time to time and of which you will be notified.
8.3 Each clause of these terms and conditions shall be severable from the other clauses and if any clauses are found to be void, invalid or unenforceable for any reason by any competent court they shall be severed from such terms and conditions, the remaining clauses shall be and remain in full force and effect.
8.4 No indulgence granted by a party shall constitute a waiver of any of that party’s rights under these terms and conditions; accordingly, that party shall not be precluded as a consequence of having granted such indulgence from exercising any rights against the other which may have arisen in the past or which may arise in the future.
8.5 These terms and conditions shall not be construed so as to create a relationship or partnership or agency between the parties, and neither party shall have the authority to assume or incur any obligations or responsibility for, or on behalf of, or in the name of, the other party.
8.6 These terms and conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
8.7 The expiration or termination of these terms and conditions shall not affect such of the clauses which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
8.8 The rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply.
8.9 If there is any conflict with these terms and condition and any terms, conditions and definitions anywhere else contained the terms and conditions herein contained will prevail.