Terms and Condition of Service
Standard Terms and Conditions
SmartSMSSolutions - An Arm of HoRLaR IT Solutions
CAC Number: 885416 (hereafter "SmartSMSSolutions")
The User, identified as any person using any system or service of SmartSMSSolutions.
Collectively referred to as "The Parties"
PLEASE READ THIS AGREEMENT CAREFULLY. THIS SMS USER AGREEMENT ("SMS AGREEMENT") DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH SMARTSMSSOLUTIONS OFFERS YOU (THE "USER" OR "YOU" OR "YOUR") AN ACCOUNT (THE "ACCOUNT") FOR USE OF SMARTSMSSOLUTIONS SERVICE (THE "SMS SERVICE")
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW AS WELL AS THE TERMS AND CONDITIONS PUBLISHED ON THE SMARTSMSSOLUTIONS SITE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE. SMARTSMSSOLUTIONS MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT AT THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SERVICE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1 - Definitions
1.1 - "SmartSMSSolutions" shall refer to HoRLaR IT Solutions, a private company registered in Nigeria under registration number BN2167138.
1.2 - "User", “You”, “Your” shall refer to the party using the Products and/or Services and/or Software as provided by SmartSMSSolutions.
1.3 - "Service" shall mean the activity and obligation of SmartSMSSolutions to provide the services and/or deliverables.
1.4 - "Effective Date" means the date on which the Service commence.
1.5 – “Account” shall mean the User’s platform for interacting with SmartSMSSolutions Services
1.6 - Unless inconsistent with the context, or otherwise indicated, in this agreement reference to a "person" shall include a juristic or artificial person, including without limitation, a firm, company voluntary association, or partnership.
1.7 - In this agreement, unless inconsistent with the context, or otherwise indicated, the singular shall include the plural, and the plural shall include the singular.
1.8 - In this agreement, unless inconsistent with the context, or otherwise indicated, reference to the male form shall include the female form as well, and vice-versa.
2 - Entire Agreement
This Agreement and all other agreements and annexures referred to in this Agreement constitute(s) the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment or warranty outside those expressly set forth in this Agreement.
3 – Relaxation
No latitude, extension of time or other indulgence which may be given or allowed by any party to the other parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any party arising from this agreement, and no single or partial exercise of any right by any party under this agreement, shall in any circumstances be construed to be an implied consent or election by such party or operate as a waiver or a negation of or otherwise affect any of the party's rights in terms of or arising from this agreement or stop or preclude any such party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
4 - Effective Date
4.1 - The effective date is the date when the User first downloaded or started using the SmarSMSSolutions Service.
4.2 - This agreement, notwithstanding the date of acceptance or signature, will be deemed to have commenced on the effective date.
5 - Duration
5.1 - The duration of this agreement shall continue indefinitely, unless terminated by either party.
5.2 - Either party may terminate this agreement by giving the other party 30 (thirty) days prior written notice.
6.1 - The User will not nor will the User authorize or permit any other person or party to use the Service:
6.1.1 - to send or knowingly receive or conduct any communication which is in violation of any law, regulation, regulatory authority or which is defamatory, offensive, abusive, indecent, obscene or menacing, or in breach of confidential, privacy, trade secrets, or in breach of any third party intellectual property rights, or in breach of any other rights;
6.1.2 - to cause any annoyance or inconvenience.
6.1.3 – to defraud or attempt to defraud
6.2 - The User unconditionally accepts and that it will abide by:
6.2.1 – SmartSMSSolutions’ acceptable use policy, available on request or may be viewed at http://smartsmssolutions.com, the terms with which the User declares itself familiar which can be amended from time to time;
6.2.2 – SmartSMSSolutions’ Licence terms and conditions which can be amended from time to time available on request or may be viewed at http://smartsmssolutions.com
6.3 - Without derogating from any other right of recourse available to SmartSMSSolutions in this Agreement, any breach of this clause by the User shall be deemed to be a material breach of this agreement and shall entitle SmartSMSSolutions to suspend and/or terminate the Service Agreement and, for this purpose, it shall be irrelevant whether the User is aware of the content of any material so transmitted. SmartSMSSolutions may suspend the Service without notice with immediate effect if, in SmartSMSSolutions reasonable opinion, the User is in breach of this Agreement and SmartSMSSolutions may refuse to restore the Service until the User has given SmartSMSSolutions an acceptable assurance that there will be no further contravention.
6.4 - SmartSMSSolutions shall be entitled to suspend and/ or terminate the Services to the User in the event of, the SmartSMSSolutions or third party network being or is potentially jeopardised, harmed and/ or impeded, by the User's use of the Services.
6.5 - The User acknowledges and agrees that SmartSMSSolutions may monitor the communication performance of the system associated with the use of the services.
6.6 - The User shall indemnify and keep SmartSMSSolutions indemnified from any claim howsoever arising lawful or otherwise, brought by any third party resulting from the User's use of the SmartSMSSolutions system and/or communication networks connected to the system. The User will pay all costs, damages, awards, fees (legal fees on an attorney and own User scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction of such judgment) and judgments finally awarded against SmartSMSSolutions arising from such claims, and will provide SmartSMSSolutions with notice of such claims, full authority to defend, compromise or settle such claims and all reasonable assistance necessary to defend such claims, at the User's sole expense. SmartSMSSolutions agrees that any actions taken by SmartSMSSolutions in respect of such claims will be taken in reasonable consultation with the User.
6.7 - The User may use the system to link into other networks and the User agrees to conform to the acceptable use policies of such networks. If communications by the User do not conform to these standards, or if the User makes profligate use of the system and/or the Service to the detriment of SmartSMSSolutions or other SmartSMSSolutions customers, SmartSMSSolutions reserves the right to restrict the passage of the User communications until the User negotiates with SmartSMSSolutions an acceptable undertaking as to its use.
7 - Warranties
7.1 - Save as expressly set out in this agreement, SmartSMSSolutions does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the System and all warranties which are implied or residual at common law are hereby expressly excluded.
7.2 - Without limitation to the generality of clause 7.1 SmartSMSSolutions does not warrant or guarantee that the information transmitted by or available to the User by the way of the system or any SmartSMSSolutions Equipment:
7.2.1 - will be preserved or sustained in its entirety;
7.2.2 - will be suitable for any purposes,
7.2.3 - will be free of inaccuracies, defects, bugs or viruses of any kind; and SmartSMSSolutions assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 7.1, and 7.2 above.
8 - Exclusion of Liability
8.1 - Except for any deliberate act or gross negligence on the part of SmartSMSSolutions, its associates, servants or agents, and except as otherwise expressly provided herein to the contrary, SmartSMSSolutions shall not be liable to the User or any third party for any loss or damage of whatsoever nature and/or arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against SmartSMSSolutions or against the User by any party arising directly or indirectly out of the System or Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be, by or from their use and the User hereby indemnifies and holds SmartSMSSolutions harmless in respect thereof, such indemnity specifically includes, but is not limited to:
8.1.1 - the incorrectness and/or loss of any service delivered or undelivered by the SmartSMSSolutions System or the delay in delivery thereof;
8.1.2 - the non-availability of the System or access to the System for any reason whatsoever;
8.2 - SmartSMSSolutions, its affiliated companies, suppliers, or any of their employees assumes no liability or responsibility for the accuracy, timeliness or completeness of any services offered by the User. The User accordingly indemnifies SmartSMSSolutions and holds it harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind, (including direct, indirect, special or consequential damages), and whether in an action based on contract, negligence or any other action, arising out of or in connection with the services.
8.3 - Subject to clause 8.1 and clause 8.2 above, the entire liability of SmartSMSSolutions, and the User's exclusive remedy for damages from any cause related to or arising out of this agreement, regardless of the form of action, whether in contract or in delicti, will not exceed the average aggregate of the Services fees and Charges paid by the User to SmartSMSSolutions under this agreement over any continuous period of 3 (three) months reckoned from the date the claim is made against SmartSMSSolutions.
8.4 - Due to the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended by SmartSMSSolutions from time to time, with the giving of at least, 24 (twenty four) hours' notice, and all liability on the part of SmartSMSSolutions for any loss or damage whether directly or consequential thereby incurred or for any costs, claims, or demands of any nature arising there from, is excluded and the provision of clause §8.1 above shall apply mutatis mutandis to such exclusion.
9 - Take-down Notice
9.1 - SmartSMSSolutions have the right to suspend and / or terminate Services to the User, should any notification be received of unlawful activity by the User, in respect of the services, pursuant to the provisions of the law of the applicable country and standard organization(s).
9.2 - The User hereby indemnifies and holds SmartSMSSolutions harmless against any claims, damages and/ or costs of whatsoever nature arising from the performance by SmartSMSSolutions of its responsibilities in terms of provisions of the law of the applicable country and standard organization(s).
10 - Breach
10.1 - SmartSMSSolutions shall be entitled, but not obligated to suspend and/ or terminate this agreement without giving notice to the User in of the following circumstances:
10.1.1 - In the event of the User failing to make payment in terms of this Agreement within 7 (seven) days after it becoming due and payable;
10.1.2 - In the event of the User failing to comply with any of the terms and conditions of this agreement, all of which are deemed to be material and it shall be irrelevant whether the User is aware of the content of any material so transmitted;
10.1.3 - Either party shall be entitled, but not obligated to terminate this Agreement upon 14 (fourteen) days prior written notice in of the following circumstances:
10.1.3.1 - In the event of a party allowing a judgment against it to remain unsettled for more than 7 (seven) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end;
10.1.3.2 - In the event of a party being placed in liquidation or under judicial management whether provisionally of finally; and/ or
10.1.3.3 - With respects to 10.1.3.1 and 10.1.3.2, not appeal the judgment that was granted against it on an opposed basis.
10.2 - In the event of their being a legal dispute between the parties, of whatever nature, the User will be obliged to continue with the punctual payment of all and/ or any amounts due in terms of this Agreement.
10.3 - If SmartSMSSolutions elects to cancel this Agreement as provided for in clause 10.1 hereof SmartSMSSolutions shall be entitled to:
10.3.1 - Claim all outstanding monies as on the date of repudiation and/ or cancellation of this Agreement;
10.3.2 - Treat all outstanding amounts as immediately due and payable which would have become due and payable over the balance of the period which has not expired in terms of the Agreement;
10.3.3 - To claim interest on the amounts as provided for in 10.3.1 and 10.3.2;
10.3.4 - Immediately terminate all and/ or any of the Services provided to the User in terms of this Agreement. Upon acceptance of this Agreement by the User, the User consents to such termination under the circumstances and the termination not amounting to an act of spoliation;
10.3.5 - Claim any and/ or all damages that SmartSMSSolutions might incur as a direct and/ or indirect result of the User's repudiation and/ or breach of this Agreement;
10.3.6 - Claim the costs of any legal proceedings instituted against the User in any court of law on a scale as between attorney and own User irrespective as to whether summons has been issued or not; and/ or
10.3.7 - To retain all amounts already paid by the User in terms of this Agreement;
10.3.8 - To retain and/ or reclaim possession of any goods of whatever nature provided by SmartSMSSolutions, directly or indirectly, or by any third party instructed by SmartSMSSolutions to the User, irrespective as to whether the said goods are prescribed in this Agreement, or not.
10.3.9 - In the event of suspension, termination, cancellation and/ or expiration of this Agreement as provided for in this Agreement and/ or as provided for in common law, the provisions of this Agreement which are intended to continue and survive, shall continue to and survive accordingly.
11 - Force Majeure
11.1 - Neither of the parties shall be held liable for failure to perform any of its obligations under any circumstance where the failure or default is caused by or arises as a result of force majeure including, but not limited to, fire, flood, lightning, civil unrest and acts of governmental, regulatory or military authorities;
11.2 - The defaulting party affected by force majeure shall as soon as reasonably possible notify the other party in writing of the occurrence of the circumstances and the estimated extent and duration of its inability to perform its obligations under the circumstances.
11.3 - In the event of a force majeure circumstance, both parties shall use all reasonable endeavours to minimise the effects to the affected party.
12 - Refund Policy
WHEREAS the services rendered by HoRLaR IT Solutions (RC: BN2167138) "SmartSMSSolutions" entails the sale of cellular "SMS" (Short Message Service) via the national and international cellular networks to the public and corporate institutions ("a Purchaser"), and
WHEREAS SMS is a redeemable item constituting liquid monetary value ("cash"), and
WHEREAS a transaction of sale between SmartSMSSolutions and any Purchaser constitutes the exchange of cash for cash, and
WHEREAS a sale by SmartSMSSolutions of SMS to a Purchaser is conditional upon the Purchaser accepting the terms of SmartSMSSolutions refund policy,
NOW THEREFORE THE REFUND POLICY OF SmartSMSSolutions IS AS FOLLOWS:
12.1 - Upon receipt and clearance by SmartSMSSolutions of Purchaser purchase price of SMS SmartSMSSolutions shall credit the Purchaser SMS account with the number of SMS purchased in the proprietary SmartSMSSolutions business system ("the Credit")
12.2 - The Credit to the Purchaser SMS account perfects the transaction of Purchase and sale between the Purchaser and SmartSMSSolutions.
12.3 - SmartSMSSolutions shall only refund the Purchaser the purchase price in the event that:
12.3.1 - the SmartSMSSolutions proprietary business system fails to make available for delivery or deliver the SMS purchased by the Purchaser within 14 (fourteen) days of SmartSMSSolutions having been given written notice by the Purchaser of such or any SmartSMSSolutions proprietary business system failure in accordance with the Terms and Conditions of Sale accepted by the Purchaser upon purchasing SMS.
12.3.2 - the SmartSMSSolutions proprietary business system fail to credit the Purchaser SMS account with the number of SMS purchased in the proprietary SmartSMSSolutions business system within 14 (fourteen) days of SmartSMSSolutions having been given written notice by the Purchaser of such or any SmartSMSSolutions proprietary business system failure in accordance with the Terms and Conditions of Sale accepted by the Purchaser upon purchasing SMS.
12.4 - Failure of cellular networks, satellites and satellite functions and cellular network servers, systems or apparatus ("the cellular networks") outside the management and control of SmartSMSSolutions, causing SMS delivered by SmartSMSSolutions to the cellular networks against possession by SmartSMSSolutions of proof of such delivery, to be lost and not delivered to the Purchaser intended SMS recipient SHALL NOT constitute a ground for refund by SmartSMSSolutions to the Purchaser. In such event SmartSMSSolutions shall assist the Purchaser in any claim the he, she or it may have as a result of the cellular networks receiving but not delivering such SMS.
12.5 - In the event that SmartSMSSolutions refund a Purchaser, SmartSMSSolutions shall only refund the Purchaser to the equivalent in Naira of the SMS in credit in the Purchaser SMS account alternatively the amount Purchased or depending on case.
12.6 - In applicable circumstances, to be determined by SmartSMSSolutions, administrative cost for such refund shall be deducted.
13 - Advertisements And Links To Other Sites
13.1 - SmartSMSSolutions does not endorse the content on any third-party Web sites.
13.2 - SmartSMSSolutions is not responsible for the content of linked third-party sites, indexes or directories, sites framed within this Site, or third-party advertisements, and does not make any representations regarding their content, accuracy or non-infringement.
14. - Free SMS
14.1 - The Free SMS Service provided by SmartSMSSolutions is provided as is.
14.2 - SmartSMSSolutions reserves the right to monitor, append and/or modify the content of message(s) sent through this service.
14.3 - You are bound by all SmartSMSSolutions "Terms of Service" by your use of this service