PayPROFIT PRSMS Terms and Conditions VERSION 1.7

1. Definitions

The words and phrases listed below shall bear the following meanings in these terms and conditions, unless the context clearly indicates otherwise:

1.1 "customer" and "customers" means any party to whom the premium rated SMS services are made available by PayPROFIT (Pty) Ltd 2006/031981/07 (PayPROFIT);

1.2 "network operator" means any party licensed to install, operate and maintain a cellular telephony network in the territory, and shall include Cell-C, MTN, Telkom and Vodacom;

1.3 "premium rated service numbers" and "PRS numbers" and "PRSMS numbers" means the five digit short code numbers (e.g. 41911) and includes both dedicated and shared short codes;

1.4 "SMS" means a short message service provided by means of a text or data message to the cellular handset either on request of the handset user or via a pre-configured batch process;

1.5 "territory" means the Republic of South Africa;

2. Application of PayPROFIT premium rated terms and conditions

These premium rated SMS terms and conditions will be applied to all PRSMS facilities issued to the customer. These terms and conditions can be changed at any time without notice and must therefore be regularly consulted by customers.

3. Use of the premium rated SMS service

3.1 Customers acknowledge and understand that PayPROFIT acts as a conduit for the provision of information and content. Customers shall ensure that all information and content provided through the premium rated SMS service conforms with the acceptable usage policies of the network operators that transmit or convey that information and content and it shall be the responsibility of customers to obtain and familiarise themselves with cellular network operators' acceptable usage policies.

3.2 Customers may not use, or knowingly allow others to use, the premium rated SMS service for any purpose that, in PayPROFIT's reasonable opinion, is improper, immoral or unlawful.

3.2 Customers shall not permit, do, nor omit to do, anything which might have the effect of prejudicing or impeding the bona fide activities of PayPROFIT or the interests or goodwill of PayPROFIT , or which might bring PayPROFIT into disrepute.

3.3 Customers will make use of a R1-50 premium rated SMS service or smaller for promotional competitions.

3.4 Customers shall observe all relevant legislation and regulations and shall furthermore ensure that all information and content produced or generated by a customer for transmission or delivery by means of the premium rated SMS service shall comply with any relevant code of conduct for the wireless industry to which PayPROFIT subscribes and is bound. Customers shall sign and return to PayPROFIT the PRSMS AGREEMENT  to indicate that they have read, understood and be bound by the PayPROFIT PRSMS Terms and Conditions. Customers shall not do, nor omit to do, anything that would result, directly or indirectly, in any breach by PayPROFIT or by the customer of any requirement or provision of the code or any applicable legislation, regulations or network usage policies, failing which PayPROFIT shall be entitled to immediately suspend or terminate the provision of premium rated SMS services to the customer and PayPROFIT may withhold payment to the customer. If the PRSMS AGREEMENT is not signed by the customer, all its provisions still apply as if the customer has signed this agreement.

3.5 There will be no refunds for any products or services for whatsoever reason,

3.6 Should the customer require PayPROFIT to do any reconciliation of whatsoever nature, it is entirely within the discretion of PayPROFIT to accept or decline such request. If PayPROFIT chooses to accept the request, an administration fee might be levied by PayPROFIT which must be paid in advance by the customer before any such reconciliation commences.

3.7 The customer shall not publish or make any statement whatsoever on any public platform or media platform or communications platform including but not limited to Internet, a web page, magazine, newspaper, e- book, email or social media that can cause damage to the trade mark or business of PayPROFIT or the trade marks or business of any of its partners Shortkode, Vodacom, MTN, CellC or Telkom. In the event of the customer doing so, PayPROFIT reserve the right to withhold all revenue payments due to the customer and claim damages from the customer or pursue civil or criminal action against the customer.

4. Advertising

 PayPROFIT requires customers to follow the advertising guidelines set out below:

4.1 All advertising containing PRS numbers must display the total cost of the premium rated service. If more than one SMS is required to be sent, the total cost needs to be displayed upfront as well as the cost per SMS. Where possible the customer must be referred to on the advertising material of any PRS. The cost of the SMS should be displayed in a font size no less that 30% of the font size of the PRS number that is advertised and be in close proximity or adjacent to the advertised PRS number. All advertised SMS costs must include VAT. All subscription services must have a unsubscribe option which must be a non-premium rated charge number.

4.2 Customers must supply PayPROFIT with all the advertising material well before its publication date on which PRS numbers supplied by PayPROFIT is advertised, including but not limited to advertisements that will be printed in media print as well as SMS, MMS or email marketing that will be sent out. PayPROFIT will then scrutinize advertising material to make sure it complies with Advertising Rules and provide feedback to customers and such advertising material can only be published once it has been authorized by PayPROFIT.

4.3 Customers may not use PRS numbers supplied by PayPROFIT on SMS, MMS or email advertising material if the customer cannot absolutely guarrantee that its clients form part of an opted-in distribution list, regardless whether the advertising material complies with all guidelines.

4.4 Customers may not make use of any other gateway (local or international) but that of PayPROFIT to send out SMS, MMS or email advertising, so that PayPROFIT can audit such advertising on a continuous basis.

4.5 Customers may not make use of PRS numbers supplied by PayPROFIT as a sender ID when sending advertising material on SMS or MMS.

5. Pricing

5.1 Premium rated SMS prices and the net amount due to customers after deduction of all network operator and PayPROFIT charges together with the charges for registration of premium rated service numbers and key words are located in the PRSMS agreement indicated in 3.4. Network service providers' charges for premium rated SMS services may differ in respect of individual network operators and may be varied by network operators from time to time and without prior notice to PayPROFIT or its customers. PayPROFIT may vary its charges for premium rated SMS messages and PRS number and keyword registrations from time to time and without prior notice to customers. Network operators may also vary their charges for use of their cellular networks, in which event PayPROFIT may be required to adjust their charges and the net amount due to customers after deduction of all charges. PayPROFIT shall not be liable for any costs incurred by a customer who is required to adjust the advertised price of a premium rated SMS service as a result of any adjustment in the overall price of the premium rated service.

5.2 PayPROFIT charges a fee to the customer for the use of its premium rated SMS system. The customer should contact PayPROFIT in order to establish the current pricing. If this fee is paid by a monthly debit order, the customer should note that transactions are loaded 60 days in advance and that after cancellation of the debit order by the customer one or two debit order transactions might still show on the bank statement of the customer which is not refundable by PayPROFIT.

6. Revenue payments 

6.1 Within 60 days of the end of a calendar month, PayPROFIT shall account to the customer for all of its charges in respect of that calendar month and shall make payment of the net amount due to the customer in respect of that calendar month. PayPROFIT shall be entitled to retain and deduct its service charges from the revenue due to a customer in respect of the premium rated SMS service. The customer shall invoice PayPROFIT for the amount due before payment will be made to the customer.

6.2 Should the amount due to a customer be queried or disputed by a customer, PayPROFIT shall endeavour to make the necessary investigations to the best of its abilities and attempt to resolve the query or dispute, but should such investigations prove to be inconclusive, the SMS message transaction logs maintained by PayPROFIT shall be deemed to be true and accurate for accounting purposes.

6.3 Failing resolution of any dispute within 30 days of accounting the dispute may be referred by PayPROFIT for investigation and determination by PayPROFIT's auditors who will recommend appropriate corrective action and will determine the amount payable. The customer shall co-operate in any such investigation and any sum found to be due or overpaid shall promptly be paid or refunded within 30 (thirty) days of the date of such determination. The auditors' costs shall be paid by the customer if it is found to have incorrectly disputed the accounting by PayPROFIT. Should PayPROFIT decide not to refer the dispute to its auditors for whatsoever reason, the SMS message transaction logs maintained by PayPROFIT shall be deemed to be true and accurate for accounting purposes. 

6.4 If any network operator delays revenue payment to PayPROFIT for whatsoever reason, PayPROFIT may withhold all revenue payments to the customer until such time as the network operator has commenced revenue payments to PayPROFIT again, upon which revenue payments to the customer by PayPROFIT will commence again. PayPROFIT may at its own discretion pay the customer the delayed component of the revenue in the mean-time to smooth out the administration process.

6.5 If any network operator fails to make revenue payments to PayPROFIT for whatsoever reason then PayPROFIT will not be held liable for paying these amounts to the customer. If PayPROFIT has made any revenue payments to the customer in advance for revenue payments delayed by the network operator but eventually is not paid out by the network operator for whatsoever reason, then PayPROFIT may deduct such amounts from the total future revenue amount. If PayPROFIT has paid out more revenue than could be recovered from future revenue amounts, the customer agrees to refund PayPROFIT this amount within 30 (thirty) days of the date of such determination. The customer cannot force PayPROFIT to take action (legal or otherwise) against any network operator that fails to make revenue payments to PayPROFIT.

6.6 The network operators impose a minimum revenue payout limit of R2500 per month (VAT excluded) on a dedicated shortcde and customers with a dedicated shortcode must then perform above this limit in one month to receive any revenue payment for that month. Customers with shared shortcodes will only receive a revenue payout for  a specific month when all the customers that have keywords on the same dedicated shortcode number in total perform above this limit for a specific month.

7. Responsibility for customer username and passwords

7.1 In order to use the premium rated SMS service, the customer will be allocated a username and password by PayPROFIT. No further verification or authentication of the identity of the customer will be undertaken by PayPROFIT and all activities that can be traced to the customer's username and password shall be deemed to have been undertaken by the customer, or persons duly authorised by the customer, and the customer shall therefore be legally bound for all transactions resultant from such activities. It is therefore the customer's responsibility to ensure that the username and password are handled with care and not subjected to negligent or unauthorised usage.

8. Service interruption, failure or termination

8.1 The delivery of SMS messages is largely dependent on the effective functioning of network operators' cellular networks and the SMS recipient's mobile handset and PayPROFIT cannot guarantee the delivery of SMS messages. PayPROFIT shall make all reasonable endeavours to ensure uninterrupted and continued use of the service.

8.2 Network operators may modify, enhance, develop or discontinue components of their premium rated SMS services at any time without prior notice, in which event PayPROFIT shall be entitled to modify, enhance, develop or discontinue its services to customers without notice.

8.3 PayPROFIT shall use its reasonable endeavours to provide the customer with advance notice of any modification, suspension or termination of its services and shall endeavour to minimise the duration of any suspension thereof in so far as this is reasonably practicable.

9. Limitation of liability, warrantees and indemnities

9.1 The provisions of this section specify the entire liability of PayPROFIT whether arising in contract, delict or otherwise and shall survive termination of this agreement for any reason.

9.2 Customers make use of the service at their own risk and customers hold PayPROFIT harmless and indemnify PayPROFIT fully against any claim by any party as a result of any systems failure, interruption or termination of services, breach of privacy or data security. Customers are fully and exclusively liable for any and all risk resultant from the use of the premium rated services.

9.3 Customers indemnify and hold PayPROFIT harmless against all damages, awards, penalties or legal costs claimed or imposed by any party as a result of any action, commission or omission by a customer that constitutes a breach or contravention of any legislation, regulations, code of conduct or network provider codes of practice or acceptable usage policies.

9.4 Customers indemnify and hold PayPROFIT harmless against any claims, actions or damages from any party as a result of the fraudulent or unauthorised use of the customer's username and password or loss thereof.

9.5 PayPROFIT shall not be liable to customers in any circumstances for any indirect, contingent or consequential loss (including, but without being limited to, loss of revenue, loss of business or loss of profits) sustained or incurred by the customer, howsoever arising.

9.6 PayPROFIT premium rated services are provided "as is" and are subject to change at any time without notice to customers. To the fullest extent permitted by law, PayPROFIT disclaims all representations and warranties (express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, and non-infringement of proprietary rights) as to the premium rated services.

9.7 Without derogating from the aforegoing, in no event shall PayPROFIT be liable for any damages whatsoever, 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, inability to use or unauthorised use of the premium rated services, whether such damages arise in contract, delict, under statute, in equity, at law or otherwise.

10. Suspension and termination of services

10.1 In addition to any other rights it may have, PayPROFIT shall have the right at any time, and without liability to customers or any third party, to suspend or terminate its provision of the premium rated services or any part thereof in the case of any breach by a customer of any of the provisions of these terms and conditions, and withold part or all payments to a customer.

11. Intellectual property

11.1 No intellectual property right, including any right of ownership of any short code, shall vest in the customer in terms of this agreement save for those rights specifically provided for in terms hereof.


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