SIMcontrol Terms Of Service

Introduction

These Terms and Conditions between Flickswitch and the Customer govern the provision of this Service by Flickswitch to the Customer and by accepting the Terms and Conditions when registering as a Customer on the Site, the Customer agrees to be bound by the Terms and Conditions. The Terms and Conditions is a legally binding document.

Flickswitch may modify the Terms of Service periodically with or without notice to the Customer and such modifications shall be effective immediately upon publishing to the Site.

Definitions

In this Agreement, unless inconsistent with or otherwise indicated by the context –

“Agreement” refers to these Terms and Conditions;

“API” refers to application programming interface;

“Flickswitch” refers to Flickswitch , depending on the territory from which the Service is accessed; our Site; our Service; or a combination of all or some of the preceding definitions, depending on the context in which the phrase is used;

“Intellectual Property Rights” means copyright, patents, registered designs, trademarks (whether registered or not), trade secrets, database rights, design rights, service marks and other intellectual property rights and rights to claim something as Confidential Information, including in other jurisdictions that grant similar rights;

“RICA” refers to the Regulation of Interception of Communications and Provision of Communication-Related Information Act;

“Service” refers to the services that we provide through our Sites, including our Sites itself, networking services such as firewalling and spend management, connectivity on local or roaming mobile networks, API’s, as well as physical services such as technical support, SIM card supply or any other service offered by us;

“Site” or “Sites” refers to our website or websites, being www.flickswitch.co.za , www.simcontrol.co.za , www.simcontrol.com.na and www.simcontrol.co.ke or any other site through which we provide our services;

“User” refers to anyone who uses our Service, including purchasers of our goods and general visitors to our Site; “You” or “Customer” refers to you, the person who is entering into this Agreement with Flickswitch.

Customers are prohibited to attempt any violations to the security of Flickswitch including, but not limited to an attempt to interfere with the host or network by submitting a virus to the Site, overloading or spamming, forging of TCP/IP packet header or any part of the header information in any email or newsgroup posting or by accessing information not intended for such Customer or logging into a server or account which the Customer is not authorised to access.

All content, trademarks and data on the Sites, including but not limited to text, graphics, icons, links, private information and designs, are the property of or under licence of Flickswitch. As such they are protected by local and international legislation and agreements.

You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site without obtaining our prior written permission.

“Flickswitch” “SIMcontrol” and “Hotsocket” are trademarks used by Flickswitch to uniquely identify our Site, Service, and business. You agree not to use these phrases anywhere without our prior written consent. In addition, you agree not to copy the look and feel of our Site or its design, without our prior written consent.

All Intellectual Property Rights in the Sites, Services, processes, manuals, and other documentation connected with the Services and/or to Flickswitch shall remain at all times the property of Flickswitch. Unless specifically authorised in this Agreement or in writing by Flickswitch and then only to the extent so authorised, the Customer shall have no right to use Flickswitch’s Intellectual Property in any manner whatsoever.

Flickswitch offers the following Services to its Customers:–

Monitoring: Flickswitch will manage SIM cards on your behalf. SIM balance monitoring and scheduled and ad-hoc recharge services are available on some, but not all the mobile networks. Services available on networks may also change from time to time. By loading a SIM onto the SIMcontrol platform, you give permission to Flickswitch to access the SIM and related information as supplied by mobile network operators or other providers. You also give permission to manage mobile data traffic from customer SIM cards to a range of end-points as determined by your service.

Recharging: Flickswitch will recharge SIM cards as per your defined recharge rules, API request, recharge instructions via the website or on specific request. Flickswitch will use the recharge rules defined by the Customer when determining whether to recharge a SIM. All recharges will be billed against your pre-funded account. Should mobile networks change available recharge options, such as data bundle sizes or pricing, Flickswitch will amend recharge rules to the closest available alternative. Recharges of airtime, data or SMS bundles are charged against the customer’s pre-funded account. Airtime and data rates are subject to adjustment by the networks from time to time and without prior notification. Recharges to some networks may incur a surcharge. Networks may from time to time change their conditions of service or airtime, bundle and SMS charges without notice. These changes, product updates, data validity periods and price changes will be applied to our Customers within a reasonable timeframe.

Reporting: Flickswitch will attempt to alert you via our Site, email or by other means of any failed recharge, recharge not completed because of a business rule failing or when the Customer’s account is depleted. It is the Customer’s responsibility to keep his account in a positive balance. Account balance and spend breakdown may be monitored at any time by the Customer using the SIMcontrol Site or Hotsocket API: Flickswitch can provide the Customer with an invoice, statement and usage report, detailing all recharges that have taken place on request.

SIM Card Supply: Flickswitch may supply you with SIM cards, if requested. Flickswitch can supply SIM cards of different types on selected networks, if available. Depending on the SIM type and Service used, such SIM cards may be registered in the name of Flickswitch or in the name of the Customer. SIMs may be pre-activated by Flickswitch and provisioned as requested by the Customer. The default position is that SIMs are supplied already activated on the network. Payment for SIMs supplied will be collected from the Customer’s account. It is the Customer and not Flickswitch’s responsibility to ensure activation, SIM card settings, RICA registration and network provisioning are correct and tested before time of use. SIMs have different conditions and network rules. It is the Customer and not Flickswitch’s responsibility to acquaint themselves and understand network conditions and rules, such as SIM expiry, APN limitations, airtime and data expiry and all other network-related conditions of service for each SIM type used. SIMs that are registered in the name of Flickswitch may be canceled should the customer suspend such SIMs from the Service. Should the customer choose to use a Product or Service from a Mobile Network Operator that carries a fixed-term contract commitment o termination period, such a Product or Service shall be provided to the Customer by Flickswitch on the same terms as provided by the Mobile Network Operator, including the contract cancellation period.

RICA: It is the Customer’s responsibility to ensure SIMs are RICA registered (or similar Know Your Client (“KYC”) registrations required in a specific country) to comply with current legislation. Flickswitch can, on your request, assist with RICA registration of SIMs in Your or your company’s name. It remains your responsibility to comply with all RICA or other relevant KYC legislation as well as to comply with any SIM de-registration requirements. Networks may impose limits on the number of SIMs registered per user. Although we can assist with the process, it is the Customer’s responsibility to get such restrictions lifted, if required.

Networking & Connectivity Services: Mobile Network Operators are not responsible for a service being interrupted and/or failing for any reason or for any interruption in the network services. So too, Flickswitch is not responsible for a service being interrupted and/or failing for any reason whether caused by Mobile Network Operator, Data Centre or Third Party connectivity providers or Flickswitch' own networking, firewalling or SIM management services.

The Customer acknowledges that the Service is provided using third party networks and service providers and that the availability and performance of the Service is outside the control of Flickswitch. Customer further accepts that the quality and availability of the Service may be affected by factors outside Flickswitch's control such as mobile network availability, power supply problems, physical obstructions, fibre breaks, atmospheric conditions and other causes of radio interference or faults in other telecommunication networks to which the service is connected.

The Customer must take note that the Mobile Networks Operators do not guarantee the barring of certain functionality (i.e. barring the ability to make telephone calls or WASP subscriber services) and requests to that effect are dealt with on a best effort basis by the network operator. Accordingly, the Customer should implement its own cautionary measures when handing out SIM cards to persons that should not be utilising the SIM cards for data, voice, SMS or USSD functionality.

The Customer must ensure that SIM cards managed on their account are used in ICASA approved devices and used in a responsible manner, including the management of device security and data session generation including viruses, bots, malware or malicious user behaviour.

If a SIM on your account is implicated in activity that indicates that it may be infected with malware and may be part of malicious network activity or a botnet or if Flickswitch detects any suspicious network activity or a high volume of individual data sessions originating from a customer device, it reserves the right to disconnect such a SIM card in order to maintain network quality of service. Disconnected SIM cards may be reactivated once the Customer has proven that the offending activities have been ceased. Please remember that you are responsible for ensuring that devices and all applications connected to your SIM cards are properly secured.

Custom firewalling, data routing and traffic monitoring services are available on some Services. Due to the nature of such services, they are offered on a "best effort" basis and no guarantees can be provided for such services to block or allow all data traffic at packet level. End user devices need to be managed by the Customer to ensure are no applications or software can be used to bypass or proxy to other services/servers. Public-access devices such as WiFi access points, where devices that connect to the network can not be controlled, are not allowed

Support: Flickswitch will provide you with reasonable first-line support via telephone, e-mail or Flickswitch’s customer care operations during normal business hours in South Africa. Flickswitch will try and assist with support matters pertaining to the mobile networks themselves, but ultimately may refer the Customer to deal with networks directly on specific matters. The Site and support services are offered on a best-effort basis.

Flickswitch may suspend the monitoring and recharge service immediately should there not be adequate funds in a Customer’s purse to cover the monthly management fee or recharges for all SIMs being monitored. Flickswitch will not activate services to only a selected group of SIMs. Flickswitch may terminate a Customer’s service should there not be adequate funds in your account within 14 (fourteen) calendar days after the suspension of service without notification. Flickswitch may give 14 (fourteen) calendar days’ notice to the customer with regards to terminating their service for any other reason. You may immediately suspend the service and recharges by editing your recharge rules or suspending SIMs from the service on the SIMcontrol website and may give Flickswitch 14 (fourteen) calendar days written notice via e-mail to cancel the SIMcontrol or Hotsocket services. Should a Product or Service used have a contract liability with a Mobile Network Operator, the remaining contract liability will become due immediately upon termination request. Remaining account credit and any security deposits will be refunded to the Customer upon request within 14 (fourteen) days of service cancellation.

Flickswitch will charge a monthly management fee to the Customer as per the SIMcontrol or Hotsocket pricing schedule, which we may amend from time to time. The management fee does not include any allocation of airtime or data to a SIM. The management fee will be deducted from the Customer’s account on the 1st day of each calendar month or when loaded onto the Site and will cover the management fees for that month or part thereof in advance.

A once-off activation fee will be charged per new SIM added to the Site and this fee will also be deducted from the Customer’s account. Requested recharges or fees may, at the sole discretion of Flickswitch, be billed against a Customer account even if it is in arrears or has no funds available. Flickswitch may, on specific networks, charge a fee to process recharges. Airtime, data and SMS bundle charges may be changed from time to time by the network operators. Flickswitch may adjust the pricing for these accordingly, and without notice.

From time to time, Flickswitch may modify this Agreement. Unless otherwise specified by Flickswitch, changes become effective upon the date of the change. Flickswitch will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, e-mail or other means, and in any event continued use of any Flickswitch service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

Flickswitch provides the ability for Customers to pay money into an account on the SIMcontrol platform (the “Customer Account”) from which Products and Services are consumed. Flickswitch provides Customers the ability to self-generate a pro-forma invoice for this purpose. The funds so deposited by Customers are intended to be utilised against future Products and Services offered by Flickswitch, and cannot be used to purchase any other items. Flickswitch will generate invoices for the Services provided and will deduct the amount owing by Customer automatically from the amount which was prepaid by Customer for this purpose. In the event that Customer or Flickswitch terminates this Agreement, Customer may request in writing that any unutilised amount of deposited funds in the Customer Account be returned. Flickswitch will evaluate the request and may request additional information from Customer before proceeding with repayment, including, but not limited to, matters such as Customer Board Resolution and proof by Customer of ownership of the bank account into which the remaining funds are to be deposited.

The Websites may sell mobile connectivity management and airtime/data bundles online. The use of any product or service bought from this Website is at the purchaser’s risk. The purchaser/user indemnifies and holds the Provider harmless against any loss, injury or damages which may be sustained as a result of using the products sold on the Website

The private information required for executing the orders placed through the e-commerce facility, namely the Customer's personal information and credit card details, will be provided in the strictest confidence to the Credit Card Provider and not sold or made known to third parties. Only the necessary information, that is the delivery address and contact phone number will be made known to third parties delivering the product. Credit card details are not kept by the Provider under any circumstances.

The Provider cannot be held responsible for security breaches occurring on the User’s electronic device (Personal Computer or other electronic device used to browse the Website), which may result due to the lack of adequate virus protection software or spyware that the Customer may inadvertently have installed on his/her device.

The Provider will supply all goods to the delivery company in good order. The Provider will not be held liable for the condition of goods arriving at the Customer's chosen delivery address.

All online credit card payments are processed by the Adumo. Card Holders may go to www.adumo.com to view Adumo’s security policies.

Provider will not process any refunds for airtime / bundle purchases for recharges already submitted to the mobile network, unless the mobile network responded with a failure response, whereby Provider will refund the transaction cost to the Customer's online account.

Due to the consumable nature of airtime / bundles, should the Customer purchase airtime / bundles in error or in excess of the Customer's requirements, Provider shall be under no obligation to refund the Customer or to reverse the transaction. Accordingly no cooling-off period as contemplated by section 44 of the Electronic Communications and Transactions Act 25 of 2002 shall apply.

The Customer may at any time request to withdraw any remaining funds from their online account. Withdrawal of funds by the Customer may attract a 10% charge against the original Credit Card payment for administration costs.

Flickswitch is a responsible party for purposes of the processing of Personal Information in the course of rendering the Service, as provided for by the Protection of Personal Information Act of 2013 (‘’POPIA’’). Flickswitch conforms to POPIA in terms of the collection, use and retention of Personal Information.

Our Privacy Policy can be viewed on the service websites including www.simcontrol.co.za , www.simcontrol.com.na , www.simcontrol.co.ke and related sites.

Flickswitch warrants to the Customer (i) that it has the legal right and authority to enter into and perform its obligations under this Agreement, (ii) that it will perform its obligations under the Agreement in a professional and workmanlike manner with reasonable care and skill and in accordance with industry standards, and (iii) that it will comply with all applicable laws and regulations in connection with the provision of the Services.

Flickswitch does not give any warranty or make any representation, express or implied, including but not limited to the quality, availability, network stability, fee structures, location lookup availability or fitness for purpose of the telecommunication and data services provided by the cellular networks or third parties used. The Customer agrees that Flickswitch will not be liable for any loss or damages of any nature as a result of the Customer’s use or inability to use a cellular network’s services or for the provisioning of Services (local or roaming), any degradation in the performance of the Services or any inability in obtaining access to the Service.

Flickswitch shall not be liable for any indirect or consequential loss or damages, including without limitation, loss of business, data, profits, revenue or anticipated savings howsoever arising, suffered by the Customer or any third party and arising in any way in connection with the Service or this Agreement or the termination of this Agreement or for any liability of the Customer to any third party.

Flickswitch provides no warranty that the Services generally available through its Site shall remain uninterrupted or error-free or that defects in the Service will be corrected.

Flickswitch does not warrant that the Service will meet your requirements and, for this purpose, it is specifically recorded that the Service is provided “as is” and it is the Customer’s responsibility to satisfy itself that it meets the Customer requirements.

Flickswitch furthermore does not guarantee that all files made available for download through the Service or delivered via email will be free of infection or viruses, worms, Trojan horses or any other code that manifest contaminating or destructive properties. Customers are solely responsible for ensuring that sufficient measures are in place to offer relevant protection.

Vodacom “unrestricted” APN disclaimer: Should you use this APN on the Vodacom network, you understand and accept the risk that the provisioning by Vodacom (Pty) Ltd to you of its “unrestricted” APN may result in the unauthorized access and/or usage of your devices. You agree that neither Vodacom (Pty) Ltd nor any of it agents, service providers, contractors, directors, employees and servants shall be liable for any losses, costs, damages, expenses, (whether direct or indirect) claims and/or injuries (including but not limited to losses, costs, damages, expenses, claims and/or injuries incurred by you, or any other party, arising from the unauthorized access to and/or usage of your devices by any other person) incurred or sustained by you, or any other person, arising from Vodacom (Pty) Ltd providing you with its “unrestricted” APN, and you hereby indemnify and hold Vodacom (Pty) Ltd, its agents, service providers, contractors, directors, employees and servants harmless in regard thereto. Vodacom (Pty) Ltd ir Flickswitch does not offer or provide any warranty in regard to the functionality of the “unrestricted” APN, or that it will be fit for the purpose for which it is intended.

You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our Service to you, including any damages caused by your use of our Site. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of such a claim, we may elect to settle with the party/parties instituting the claim, and you shall be liable for the damages as though we had proceeded to trial.

Users’ use of the Sites and Services is solely at users’ own risk and subject to all applicable laws governed by Republic of South Africa. Should Users outside of this jurisdiction access the Sites and Services, they do so at their own risk and are responsible for compliance with applicable local laws and regulations.

In the event of any dispute or difference arising between the parties hereto relating to or arising out of this Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the parties shall forthwith meet to attempt to settle such dispute or difference, and failing such settlement within a period of sixty (60) days, the said dispute or difference may be submitted to arbitration on an informal basis in accordance with the provisions of the Arbitration Foundation of Southern Africa, which arbitration proceedings shall be held in Cape Town or such other place as the parties may agree.

This clause shall not preclude any party from obtaining any relief from a court of competent jurisdiction in the Republic of South Africa.

The Customer agrees that Flickswitch will not be responsible for fulfilling its obligations in terms of this Agreement, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labour shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, mobile network downtime or technical issues, cloud networking disruptions, shortage of materials, or any other event beyond our control.

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Flickswitch shall have the sole right to elect which provision remains in force.

No indulgence, leniency or extension of time which Flickswitch may give or allow to the Customer in respect of the performance of any obligation hereunder, shall in any way prejudice Flickswitch or precludes Flickswich from exercising any of its rights an enforcing the obligations of the Customer in terms of this Agreement.

We may terminate your access to our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.

Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may, however, assign our rights and/or obligations under this Agreement to any other party at our discretion.

Should you send an e-mail to Flickswitch or complete an online form and submit it, Flickswitch will use this information in the normal course of business for the products, services and support you request. The submission of this information to Flickswitch is given with your express permission and willingness for the product, service or support.

E-mail communications, including all attachments thereto, are transmitted to you by Flickswitch on the following terms and conditions:

Before any purported agreement, that has been negotiated either wholly or partly by means of e-mail, shall be considered binding on Flickswitch, the following terms and conditions shall apply:

An advanced electronic signature, (as defined in the ‘Electronic Communications and Transactions Act 25 of 2002’), of a duly authorized member of the Board of Directors of Flickswitch shall be required to be used and attached to any e-mail containing any offer and/or acceptance by Flickswitch, as the case may be.

Where Flickswitch is acting as the offeror, the agreement shall be deemed to have been concluded at the time when and place where the acceptance of the offer was actually received by the Director so acting on behalf of Flickswitch, and upon such Director expressly and manually acknowledging receipt of such acceptance.

An e-mail shall be considered to have been sent by a Director as aforesaid only if: the Director sent it personally; orit was sent by a person who had the required authority to act on behalf of the said Director.

Any opinion or advice contained in this e-mail is subject to the terms and conditions contained in any governing agreement and information contained in the e-mail will be confidential and may be legally privileged, and is intended solely for the use of the individual or entity to whom it is addressed and others authorized to use it or receive it. If you are not the intended recipient you agree that any disclosure, copying, distribution or taking action in reliance of the contents of this e-mail is strictly prohibited, and may be unlawful and you will notify the sender immediately and then delete it.

Confidentiality and legal privilege are not waived or lost by reason of mistaken delivery to you of any e-mail. Flickswitch is not responsible for the proper and/or complete transmission of the information contained in any e-mail or of the e-mail itself nor in any delay in its receipt.

Whilst Flickswitch does employ virus filtering, it provides no guarantees or warranties that any e-mail is virus-free.

Flickswitch is not a mobile network operator or internet service provider and has no control over cellular network connectivity, product offerings and functionality.

These terms and conditions shall be for the benefit of Flickswitch and may be waived by Flickswitch in its discretion.

FLICKSWITCH (PTY) LTD

Registration Number: 2005/041969/07

FLICKSWITCH INTERNATIONAL (PTY) LTD

Registration Number: 2014/229852/07

Directors: K Snijders, HC Koen, JR Barnard

Physical address: Flickswitch Office, Unit 108A

Sovereign Quays, 32 Somerset rd, Green Point, Cape Town, South Africa

Email address: hello@flickswitch.co.za

Telephone number: +27 (0)87 943 7222

Updated: 27 September 2023