Terms & Conditions of Service

SIMcontrol and Hotsocket Terms & Conditions

Introduction

Please read these Terms and Conditions carefully, as you must agree to it in order to be permitted to use our Service.

Definitions

Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:

“Agreement” refers to these Terms and Conditions;

“Flickswitch” refers to our company known as “Flickswitch (Pty) Ltd” and its subsidiaries; 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;

“Service” refers to the services that we provide through our Sites, including our Sites itself;

“Site” or “Sites” refers to our website or websites, www.flickswitch.co.za www.simcontrol.co.za www.simcontrol.com.na and www.simcontrol.co.ke;

“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

Rules of use

You must not:

  • Violate the laws of South Africa or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
  • Impersonate anyone or otherwise violate the rights of a third party.
  • Purchase our product for resale without our prior written authorization.
  • Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Flickswitch Site, Service, or its Users’ computers.

Do anything else which could bring Flickswitch into disrepute or violate the rights of any person

Our Copyright

Flickswitch must ensure that the content on its Site is not diluted by unauthorized third party use. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site without receiving our prior written permission.

Trademarks

“Flickswitch” “SIMcontrol” and “Hotsocket” are marks used by us, Flickswitch, to uniquely identify our Site, Service, and business. You agree not to use these phrases anywhere without our prior written consent. Additionally, you agree not to copy the look and feel of our Site or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own competing service, product, or business.

Revocation of Consent

We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.

Service

Flickswitch agrees to provide the Service to you subject to the following conditions:–

Monitoring: Flickswitch will manage SIM cards on behalf of you. Full SIM balance monitoring is available on certain mobile networks. Scheduled and ad-hoc recharge services are available on other networks. Specific services available on networks may change from time to time. By loading a SIM onto the SIMcontrol platform, you give permission to Flickswitch to access SIM and related information as supplied by mobile network operators or other providers.

Recharging: Flickswitch will recharge SIM cards as per your defined recharge rules, API request 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 purse. 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 purse. Airtime and data rates (which can be supplied upon request) 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, products updates, data validity and price changes will be applied to our customers within a reasonable timeframe.

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

Fees: Flickswitch will charge a monthly management fee to you as per your 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 purse on the 1st day of each calendar month 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 system. This fee and the management fee will be deducted from the customer’s purse. Requested recharges or fees may be billed against a client purse even if it is in arrears or has no funds available, at the sole discretion of Flickswitch. 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. Tax Invoices are available after month-end for the previous month, and reflects all purse transactions within that calendar month.

SIM Card Supply: Flickswitch may supply you with SIM cards if requested. Flickswitch can supply SIM cards on selected networks, if available. SIMs may be pre-activated by Flickswitch and settings changed as requested by the client. Payment for SIMs supplied will be collected from funds in the customer’s purse. It is the client’s and not Flickswitch’s responsibility to ensure SIM card settings, RICA registration and network provisioning are correct and tested before time of use.

RICA: It is the customer’s responsibility to ensure SIMs are RICA registered (or similar 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 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.

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 client to deal with networks directly on specific matters.

Notice & Termination: Flickswitch may suspend the monitoring & 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 service to only a selected group of SIMs. Flickswitch may terminate a customer’s service should there not be adequate funds in your purse of the customer within 14 (fourteen) calendar days after the suspension of service. 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 their 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 their SIMcontrol or Hotsocket services. Remaining purse credit and any security deposits will be refunded to the client upon request within 14 (fourteen) days of service cancellation.

Data Collection: In terms of the Electronic Communications and Transactions Act, No. 25 of 2002, Flickswitch may be classified as a Data Controller in that it electronically collects, collates, processes and stores personal information for the purposes of research, demographics, customer care, provision, development and personalisation of the services or any other services or products offered/to be offered in future. There are always risk associated with providing personal information, whether in person, by phone, over the internet or any other media or terminal, and no system of technology is completely safe, “tamper” or “hack-proof”. Flickswitch has endeavoured to take appropriate measures to prevent and minimize risks of unauthorised access to, improper use and the inaccuracy of the customer’s personal information but does not guarantee that it is absolutely secure. Flickswitch will not disclose the customer’s personal information to a person who is not in its employ without the customer’s permission, unless compelled by law/in terms of a court order to do so, or in public interest or necessary to protect the rights and ensure the integrity and operation of its business and systems. Flickswitch will on its own initiative, or at the customer’s request, rectify or erase any incomplete, inaccurate or outdated personal information retained. The customer hereby irrevocably indemnifies Flickswitch against any loss, liability, expense, penalty or damage suffered by it in any form or manner arising from or in relation to any unauthorised access to, improper use of and accuracy of its personal information. The customer agrees that Flickswitch will be entitled to provide non-personal information and statistical data collected by it to third parties. When the customer activates the SIMcontrol or Hotsocket service and/or sends emails to Flickswitch, it consents to receiving communications, including marketing material, from Flickswitch electronically and agree that all agreements, notices, disclosures and other communications sent to it via email satisfy any legal requirement including, but not limited to, a requirement that such a communications should be “in writing”.

General: Flickswitch only renders the services as set out above; does not provide telecommunication or data services, is not agent or representative of cellular networks and has no control over cellular network connectivity, product offerings and functionality. 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. All prices in this service agreement are inclusive of VAT. This agreement is governed by the laws of the Republic of South Africa. Specific Flickswitch and mobile network service terms and conditions may be amended from time to time, and without specific notice. The latest SIMcontrol and Hotsocket terms and conditions can be viewed at on the Flickswitch or SIMcontrol websites and it reserves the right to change or amend it at any time without prior notice. Should you be unsure of any of these conditions of service, please contact Flickswitch.

By activating and using this service, the customer or user warrants that they have the required authority to use this service and understand and agree to the terms and conditions of service.

Representations & Warranties

WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY, AVAILABILITY, ACCESIBILITY, ACCURACY OR COMPLETENESS OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.

YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.

YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY PERSONAL INJURY, DEATH, OR OTHER LOSS RESULTING IN WHOLE OR IN PART FROM THE USE OF OUR PRODUCT.

YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING PAYPAL OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND YOUR PURSE, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS. WE ARE NOT OBLIGATED TO PROCESS YOUR ORDER UNTIL WE HAVE RECEIVED THE REQUIRED FUNDS FROM THE RELEVANT PAYMENT PROCESSOR.

YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.

THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.

For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

Indemnity

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 or acceptance of the offers contained on it. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.

Choice of Law

This Agreement shall be governed by the laws in force in the Republic of South Africa. The offer and acceptance of this contract are deemed to have occurred in the Republic of South Africa.

Forum of Dispute

You agree that any dispute arising from or relating to this Agreement will be heard solely by a court or Arbitration body of competent jurisdiction in the Republic of South Africa. Specifically, where the subject matter of a dispute is eligible for it, you agree that any disputes shall be heard solely by the Arbitration Foundation of Southern Africa (“AFSA“).

Unless otherwise agreed in writing by all the Parties, any such negotiation, mediation or arbitration shall be held in Cape Town.

If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by AFSA, you agree not to bring the other claims against us and to instead proceed within AFSA with all claims.

If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of AFSA, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim to AFSA.

You agree that if a dispute is eligible to be heard by AFSA but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute to AFSA.

You agree in terms of the rules of AFSA, that the initial award of an arbitrator shall be subject to a right of appeal in terms of those rules.

If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.

You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.

Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.

Severability

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.

Non-Waiver

Flickswitch reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

Termination & Cancellation

We may terminate your access to our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. 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.

Assignment of Rights

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

Amendments

We may amend this Agreement from time to time. When we amend this Agreement, we will update this page accordingly. You must read this page each time that you use our Service, and your continued use of our Service shall constitute your acceptance of any such amendments.

E-mail and other Communications

Should you complete a form and fax it 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; or
  • it 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 warrantees that any e-mail is virus-free.

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

Registered Details

Name: FLICKSWITCH (PTY) LTD
Registration Number: 2005/041969/07
Directors: K Snijders, HC Koen, WS Malherbe
Physical address: Flickswitch Office, Unit 404 (4th floor)
Manhattan Place, 130 Bree Street, Cape Town, South Africa
Postal Address: PO Box 15670, Vlaeberg, 8018
Email address: info@flickswitch.co.za
Telephone number: +27 (0)87 943 7222

Name: FLICKSWITCH INTERNATIONAL (PTY) LTD
Registration Number: 2014/229852/07
Directors: K Snijders, D Olivier, R Barnard
Physical address: Flickswitch Office, Unit 404, Manhattan Place, 130 Bree str, Cape Town, South Africa
Postal Address: PO Box 15670, Vlaeberg, 8018
Email address: info@flickswitch.co.za
Telephone number: +27 (0)87 943 7222

Namibia Users and Residents

By loading MTC Namibia SIM cards on the platform, you hereby give Flickswitch permission to monitor these SIM card balances and expiration dates via the MTC Namibia mobile network. It is up the owner of the SIM cards to make contact with MTC directly and register the SIM cards under their business name on the MTC Namibia platform.The latest list of services available on each mobile network is available on request or on the Flickswitch website.

California Users and Residents

Flickswitch permits residents of the State of California in the United States to use its Service. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about MISHA must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to privacy@flickswitch.co.za.

Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Last updated 15 June 2017