Partnership

Flickswitch and WDC has entered into an agreement on 19 September 2018 whereby Flickswitch has licensed to WDC the right to sell and operate SIMcontrol (The "Service") to enterprises making use of Namibian SIM cards. WDC will take over legal and operational responsibility of SIMcontrol Namibia starting 1 October 2018.

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;

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, 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.simcontrol.com.na 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;

“WDC” refers to Windhoek Digital Communication;

“You” or “Customer” refers to you, the person who is entering into this Agreement with WDC.

Use of the Service

Customers are prohibited to attempt any violations to the security of WDC 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.

Our Copyright

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 to WDC. 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.

Trademarks

“SIMcontrol” and “Hotsocket” are trademarks under license to WDC to uniquely identify their 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.

Intellectual Property Rights

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

Service

WDC offers the following Services to its Customers:–

Monitoring: WDC 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 WDC to access the SIM and related information as supplied by mobile network operators or other providers.

Recharging: WDC will recharge SIM cards as per your defined recharge rules, API request, recharge instructions via the website or on specific request. WDC 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, WDC 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, products updates, data validity periods and price changes will be applied to our Customers within a reasonable timeframe.

Reporting: WDC will attempt to alert you via the 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. WDC can provide the Customer with an invoice, statement and usage report, detailing all recharges that have taken place on request.

SIM Card Supply: WDC may supply you with SIM cards, if requested. WDC can supply SIM cards on selected networks, if available. SIMs may be pre-activated by WDC and settings changed 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 WDC’s responsibility to ensure activation, SIM card settings, RICA registration and network provisioning are correct and tested before time of use. It is the Customer and not WDC’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.

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. WDC 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.

Support: WDC will provide you with reasonable first-line support via telephone, e-mail or WDC’s customer care operations during normal business hours in South Africa. WDC 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.

Notice and Termination: WDC 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. WDC will not activate services to only a selected group of SIMs. WDC 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. WDC 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 WDC 14 (fourteen) calendar days written notice via e-mail to cancel the SIMcontrol or Hotsocket services. Remaining purse credit and any security deposits will be refunded to the Customer upon request within 14 (fourteen) days of service cancellation.

General: WDC only renders the Services as set out above; does not provide telecommunication or data services, is not an agent or representative of cellular networks and has no control over cellular network connectivity, product offerings and functionality.

Fees

WDC 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 WDC, be billed against a Customer account even if it is in arrears or has no funds available. WDC 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. WDC may adjust the pricing for these accordingly, and without notice. Tax Invoices are available after month-end for the previous month, and reflects all account transactions within that calendar month.

Privacy and Personal Information

WDC 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’’). WDC conforms to POPIA in terms of the collection, use and retention of Personal Information.

Our Privacy Policy can be viewed on the service website.

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. 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 select to settle with the party/parties instituting the claim, and you shall be liable for the damages as though we had proceeded to trial.

Jurisdiction

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.

Dispute resolution

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 Namibian Arbitration Act, which arbitration proceedings shall be held in Windhoek 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 Namibia.

Force Majeure

The Customer agrees that WDC 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, 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, WDC shall have the sole right to elect which provision remains in force.

Non-Waiver

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

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, however, assign our rights and/or obligations under this Agreement to any other party at our discretion.

E-mail and other Communications

Should you complete a form and e-mail it to WDC or complete an online form and submit it, WDC will use this information in the normal course of business for the products, services and support you request. The submission of this information to WDC 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 WDC 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 WDC, 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 WDC shall be required to be used and attached to any e-mail containing any offer and/or acceptance by WDC, as the case may be.

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

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

Registered Details

Name: Windhoek Digital Communications (Pty) Ltd

Registration Number: 2017/0976

Directors: J. Rabie

Address: PO Box 21587, Windhoek, Namibia

Email address: support@simcontrol.com.na

Telephone number: +264 61 304051


Name: FLICKSWITCH (PTY) LTD

Registration Number: 2005/041969/07

Directors: K Snijders, H Koen, R Barnard

Physical address: Flickswitch Office, Unit 404 (4th floor) Manhattan Place, 130 Bree Street, Cape Town,

South Africa

Email address: info@flickswitch.co.za

Telephone number: +27 (0)87 943 7222

Namibia Users and Residents

For the avoidance of doubt, you hereby expressly agree that, by loading MTC Namibia SIM cards on the platform, you give WDC permission to monitor these SIM card balances and expiration dates via the MTC Namibia mobile network. It is up to the owner of the SIM card to make contact with MTC directly and register the SIM card under their business name on the MTC Namibia platform.

Last updated 1 July 2021