These Terms and Conditions represent the Agreement between Cemanet Technologies Limited (hereinafter referred to as ‘CEMANET’) and the Users of its Services as herein provided:
"By accessing and using this service, you accept and agree to be bound by the terms and provision of this agreement. You shall be subject to any posted guidelines and/or rules applicable to such services. Any participation in this service will constitute acceptance of this agreement. If you do not agree to abide by the above, please do not use this service."
TAKE NOTE THAT THESE TERMS AND CONDITIONS CONTAIN PROVISIONS THAT DISCLAIM, LIMIT AND EXCLUDE THE LIABILITY OF CEMANET TO YOU AND THAT INDEMNIFY CEMANET AGAINST CLAIMS AND DAMAGES THAT IT OR THIRD PARTIES MAY SUFFER AS A RESULT OF YOUR CONDUCT.
Please read these terms and conditions carefully:
A. In these terms and conditions of service, unless the context otherwise requires, the following terms shall have the following meanings:
“Cemanet” means the legal entity with whom you contract for the provision of the services to you as per the Terms and Conditions herein;
“End user” or “recipient” means any person who receives any message sent by a User using the services;
“Network Operator” means any party licensed to install, operate and maintain a cellular telephony network;
“Services” means and includes all products and services offered or provided to Users by CEMANET including software and related applications;
“Short Code” means a 5-digit number to which an SMS text message is sent;
“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;
“User” means any natural or legal person who makes use of any of the Services;
“USSD” means a mobile communication technology used to send text messages between a mobile phone and an application program in the network; and
“Website” shall mean a website published by CEMANET entity including any page or part thereof.
B. Any reference to the words used in these terms and conditions of service shall be regarded as follows:
- Any clause headings inserted into these terms and conditions of service are to facilitate reference and shall not be referred to or relied upon in the interpretation of the terms and conditions of service.
- Any word and or expression defined in any other part of these terms and conditions aof service shall bear the meaning of such words or expressions as assigned.
- Where the context so admits, the singular shall include the plural and words in the masculine gender shall include the feminine gender and/or neuter gender and vice-versa.
- Where, any provision of these terms and conditions of service conflict with any law, then to the limited extent of such conflict, such provision shall not be in connection with these terms of service and shall not affect its enforceability.
2. The Agreement
- Any person using the services offered by CEMANET, whenever applied for or provided to the Customer, agree to be bound by the term and conditions herein.
- Any person who is not in agreement to all the terms and conditions of service of this agreement or be unable to comply, fulfil and/or adhere with these terms and conditions of service, shall immediately cease/terminate use of the services.
- Any person that uses the services rendered shall have attained the legal age of Eighteen (18) years to form a binding contract with CEMANET.
- These terms and conditions shall apply to each and all the services, whenever applied for or provided to the User, and in the event of any conflict and/or inconsistency between the terms and conditions of service of a specific product or service, such conflict or inconsistency shall, in the absence of any express agreement to the contrary be resolved in a manner most favorable to CEMANET and to the exercise of CEMANET’ rights and options with respect to any matter and issue to which the inconsistency relates.
- CEMANET shall reserve the right to accept, to refuse and/or execute any services, and to cancel services in whole or in part in their absolute discretion without giving any reasons thereof.
- CEMANET reserves the right, in its absolute discretion, to alter and/or amend any criteria set out in these terms and conditions of service or any information without prior notice and to update prices and rates as communicated from time to time.
- Users shall undertake to check the Website frequently and to acquaint themselves with the changes and/or amendments in the information supplied on the Website and, in this regard, Users undertake to check, at a minimum, these terms and conditions of service for any alteration thereto, including in respect of the prices and nature of any Services, prior to the conclusion of each service order in respect of the Services governed by these terms and conditions of service. Users should regularly verify which networks are covered by the Services. Changes may occur as to which networks are covered from time to time.
4. The Services
4.1 CEMANET shall make all reasonable endeavours to ensure uninterrupted and continued use of the services, however the delivery of SMS messages is largely dependent on the effective functioning of Network Operators' cellular networks, network coverage and the SMS recipient's mobile handset. CEMANET does not and cannot guarantee the availability of any Service, the delivery of SMS messages or the compatibility between any message or content format and any particular mobile handsets or mobile operating systems.
4.2 Network Operators may enhance, modify, develop or discontinue components of their services at any time without prior notice, therefore CEMANET shall be entitled to modify, enhance, develop or discontinue affected services to Users without notice.
4.3 CEMANET shall provide the User with advance notice of any modification, suspension or termination of its services and shall minimize the duration of any suspension as is reasonably practicable.
4.4 CEMANET shall send messages to the immediate destination that it is requested to send to and it shall be deemed to have been effectively delivered whether to mobile telephone networks or other servers.
4.5 CEMANET shall have the right to withhold, terminate or suspend the provision of services to the User at any time, including the termination of inactive accounts where there has been no account activity for more than two (2) years.
4.6 CEMANET will not refund monies paid in advance by the User for the Services where those payments are older than six months.
4.7 Ordinary mobile terminated messaging services may be terminated by the User at any time. Incoming numbers, including long numbers, short codes and premium rated numbers must be leased for a minimum initial period of three months and thereafter one further months' notice must be given by the User in order to terminate the lease of any long numbers or short codes.
4.8 CEMANET shall provide, on request, service information to a recipient of message sent by a User utilizing a standard rate shortcode for delivering. Subject to the network rules and industry regulations, the following processes and procedures will apply for standard rate shortcode programs:
4.8.1 Should a recipient have received a message from a User sent via CEMANET, and should a recipient no longer wish to receive such messages, the recipient may undertake any of the following:
126.96.36.199 Dial *456*9*5# to opt out. All Users will ensure that messages sent via CEMANET shall carry this opt out instruction message.
188.8.131.52 Call the CEMANET Customer Service Number, supply their mobile number and ask to be blocked from receiving further messages.
184.108.40.206 Email CEMANET with their mobile number and ask to be blocked from receiving further messages.
4.8.2 Customer Service Contact Information is as follows:
220.127.116.11 Telephone number: +254 20 7606800
18.104.22.168 Email address: email@example.com
22.214.171.124 Should a recipient wish to receive more information via an SMS message, the recipient should send the word HELP to 22168
126.96.36.199 Messages received on this program are typically recipient initiated and the frequency will depend on recipient requests, 1 message per request applies.
188.8.131.52 All messages sent via CEMANET are premium rate programs deductible from the end user airtime.
5. Payment Terms
5.1 CEMANET may, subject to compliance with the Communications Authority of Kenya and the Kenya Information & Communications Act, 1998, determine and impose Fees and Charges, the Billing and Payment Terms and the Prescribed Rate and may, by providing sufficient notice to the User, vary or revise any or all of them from time to time and such variation or revision shall take effect as from the date determined by CEMANET.
5.2 The User shall only be charged Fees and Charges in respect of the services that it has applied for or subscribed for or has utilized.
5.3 The User shall promptly pay CEMANET all the Fees and Charges and any other sums due or payable to CEMANET with respect to any of the services:
5.3.1 In accordance with the Payment Terms and without any set off, counterclaim, deduction or withholding whatsoever; and
5.3.2 In any case, immediately upon the demand of the services provided that CEMANET may at its discretion, make demands at any time, for any reason and in any circumstances including, but not limited to:
184.108.40.206 Where the service is terminated by either the User or CEMANET, or, where the Service has, in the sole opinion of CEMANET, been abandoned by the User; or
220.127.116.11 Where the usage of the service by the User as indicated by the charges incurred is significantly greater than the User’s average use thereof.
5.4 The User shall, whenever requested by CEMANET, deposit with CEMANET such sums or such further or additional sums as may be requested by CEMANET.
6. Acceptable Usage
6.1 Users acknowledge and understand that CEMANET acts as a conduit for the provision of information and content. Users acknowledge that CEMANET shall not be responsible or liable for any content transmitted and that full responsibility for content shall rest on the User. Users shall observe all relevant legislation and regulations applicable and to all persons of whom they cause messages to be delivered. It shall be the sole responsibility of Users to familiarize themselves with all applicable laws, regulations and codes of conduct to which they may be subject and to ensure compliance therewith.
6.2 Users shall furthermore ensure that all messages, advertising, information and content produced or generated by a User for transmission or delivery by means of the Services shall comply with all laws and any relevant code of conduct to which CEMANET itself subscribes and is bound in all territories where messages are sent by, or received from, the User.
6.3 Users shall have the right to market their services and products through messages sent via CEMANET and such marketing messages shall only be sent between 0800hrs to 1800hrs.
6.4 Users shall ensure to share and obtain approval from CEMANET for any political message(s) they intend to send to the End User. CEMANET reserves the right to review the messages sent out under this Clause.
6.5 Users shall neither do, nor omit to do, anything that would result, directly or indirectly, in any breach by CEMANET or by the User of any requirement or provision of any applicable legislation, regulations, code of conduct or network usage policies, failing which CEMANET shall be entitled to immediately suspend or terminate the provision of Services to the User and the User shall have no claim of any nature against CEMANET (including claims for re-imbursement, refund, compensation or damages).
6.6 Users hereby indemnify CEMANET against any fine imposed on CEMANET or any damages suffered by CEMANET as a result of any act or omission of a User that amounts to a breach of any law or code of conduct to which CEMANET may be subject. Upon notification of any such fine or damages, Users agree to immediately pay the amount of such fine or damages to CEMANET. Any amount not paid to CEMANET within 24 hours of notification thereof shall accrue an interest. Users may not use, or knowingly allow others to use, the Services for any purpose that may bring CEMANET’ name into disrepute, or for any purpose that, in CEMANET’ sole and absolute discretion, is improper, immoral or undesirable.
6.7 Users shall not permit, do, or omit to do, anything which might have the effect of prejudicing or impeding the legitimate activities, interests or goodwill of CEMANET nor any Network Operator.
6.8 Users may not use the services to send messages without reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person.
6.9 In the event of any transgression of any applicable law, regulation, code of conduct, or any provision of these terms and conditions of service, or in the event of any complaint being received by CEMANET in relation to a User, then the User hereby acknowledges and agrees that CEMANET may in its sole and unfettered discretion remove message recipient contact numbers from the database of a User and/or suspend or terminate Services to a User without prejudice to any other rights that it may have in law or in terms of these terms and conditions of service.
6.10 Users acknowledge and agree that all messages sent shall be stored and can be audited and reviewed by CEMANET or any other person acting on behalf of CEMANET at any time to ensure compliance with these terms and conditions of service and any applicable law, regulations or code of conduct.
7. Registration and Security
7.1 A User must complete the registration process and must provide CEMANET with up to date, complete and accurate information as requested by CEMANET to register to make use of the services. Failure to provide accurate and complete information on registration may result in termination of the services.
7.2 User may also be required to choose a Username and password. Users are responsible for maintaining the confidentiality of their Usernames and passwords and Users undertake not to divulge their Username and passwords to any other person. A User is entirely responsible for any and all activities that occur under its account and a User shall be strictly liable to make payment of all charges incurred under its account whether or not these charges are incurred by the User or any other person, authorized or unauthorized, intentionally or unintentionally, or as a result of any virus, hack or security breach.
7.3 Users agree to notify CEMANET immediately of any unauthorized use of their account(s) or any other breach of security.
7.4 It is expressly prohibited for any person, business or entity to gain or attempt to gain unauthorized access to any page on the Website, or to deliver or attempt to deliver any unauthorized, damaging or malicious code to the Website. Any person who delivers or attempts to deliver any unauthorized, damaging or malicious code to this Website or attempts to gain unauthorized access to any page on this Website shall be held criminally liable and in the event that CEMANET should suffer any damage or loss, civil damages will be claimed.
7.5 In the event that a User wishes to replace a person/employee using a specific CEMANET account of the User, and wishes to prevent the individual person from accessing the account, the account holder shall inform CEMANET in writing of this change and change all details on the account accordingly. CEMANET may refuse to act on the instructions of an account holder where the account holder fails to provide sufficient proof of its identity as the account holder and the authority of the person purporting to represent it in making such a request and CEMANET shall have no liability to the account holder or the individual person where it refuses to act in the absence of such proof, nor where it acts in good faith reliance of any information submitted to it in support of any such request made by any person purporting to represent the account holder, including in respect of any claims for breach of privacy, security or confidentiality.
7.6 Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for damages for any wrongful suspension or deactivation of services. Users acknowledge and agree that CEMANET shall not be liable to the User or any other person for damages or other liabilities resulting from wrongful suspension or deactivation of services in response to any such notification.
7.7 CEMANET accounts shall not be transferrable from one person to another without the written consent of CEMANET. Where CEMANET consents, the new person shall be responsible for updating all details on the account accordingly.
7.8 In the event that a User forgets his or her password and/or his or her contact details used for password recovery has changed (e-mail address or mobile number) and he or she requests a password change, mobile number change or e-mail address change, CEMANET will call or e-mail the existing contact telephone number or email address on the account. The User agrees that if there is no response or no confirmation of the above request, the User may be required to re-register. The User further agrees that if any person responding to the above contact confirms the request, then the request may be effected and a new password issued to such person and the User agrees that CEMANET shall not be liable for any damages or breach of privacy, security or confidentiality resulting therefrom, including but not limited to where unauthorized persons have gained access to the Users email account or telephone.
8.1 CEMANET will not intercept, monitor, copy or disclose any User messages or personal information about the User or the User's CEMANET’ account or phonebook, other than in the normal course of the use of the services, without the User's prior permission unless CEMANET believes in good faith that such action is necessary to conform to legal requirements, to co-operate or comply with legal process, investigations, summonses, subpoenas and the like, to protect and defend the rights, property or legally protectable interest of CEMANET, the User or other third party, to enforce any of the provisions of these terms and conditions of service or to protect CEMANET’ business or reputation. The User agrees that CEMANET may access its account and message contents for the purposes described above without notice and in order to respond to service or technical issues and that CEMANET may communicate with the User from time to time for purposes including, but not limited to, communicating information regarding any updates, upgrades, notices, or other information. A recipient of a message has the right to know the identity of the sender, and this will be disclosed on request to the recipient.
Users agree that they shall not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of End Users including but not limited to names, addresses, email addresses, landline and mobile telephone numbers and shall not disclose the personal information of end users to any third party save without the express consent of the End User or where specifically required or permitted by law to do so.
8.3 CEMANET ensure all information provided to it by the User in a Direct Debit Request Form or otherwise is kept confidential, except where disclosure is required to facilitate Direct Debit Transactions or to investigate incorrect payments.
9. User Warranties and User Obligations
9.1 A User shall warrant that the recipients of any commercial messages have a recent prior commercial relationship with the User and would reasonably expect to receive marketing communications from the originator and/or recipients have either requested the receipt of messages from the User or consented thereto;
9.2 A User shall undertake not to give out or sell its End User database to any other service provider other than CEMANET. Any attempt by the User to sell and/or give out its End User’s database to any other Service Provider shall constitute a breach of these Terms and Conditions and CEMANET shall have the right to institute legal proceedings against such User.
9.3 A User shall comply with all applicable laws, regulations, Network Operator requirements or applicable codes of conduct which may be applicable in Kenya and of all persons to whom they cause messages to be delivered;
9.4 A User shall include their own contact details and identifying particulars in their messages to ensure that complaints are directed at them and not at the Network Operator;
9.5 A User shall not send unlawful, abusive, harassing, threatening or obscene messages to any End User or any other person or persons; and
9.6 A User shall not use its database to market a service to the End User that he/she has not subscribed for; and
9.7 A User shall not engage in any fraudulent act by means of or in connection with any of the Services nor in connection with payment therefor.
9.8 Any subscription service for which an End User is billed on a repeated basis without expressly confirming each individual transaction, individual programme or application administered by a User to an End User must be offered on an "opt-in basis." In addition, each User must also offer a convenient, easy-to-use and conspicuous method for an End User to opt-out from any subscription service, individual programme or application.
10.1 Where a User breaches any of these terms and conditions of service, including terms relating to payment of any amount due to CEMANET then, without prejudice to any of its legal rights, CEMANET shall be entitled to, amongst other things, to cancel its agreement with the User, to suspend or terminate the provision of services to the User, to suspend, disable or terminate the User's account/s, to sue for specific performance by the User, to claim damages and/or to retain any monies already paid by the User in respect of services not utilized by it as damages resulting from such breach and to set off any claims that CEMANET may have against the User from any other amounts due to the User by CEMANET.
10.2 Where a User account is suspended or terminated due to any breach of these terms and conditions of service, CEMANET reserves the right to also suspend or terminate all other accounts registered by, or on behalf of such User, as well as suspend or terminate any account registered by any other person or persons whom CEMANET, in its sole and unfettered discretion, believes is affiliated with the User concerned.
11. Limitation of Liability, Warranties and Indemnities
11.1 The User shall indemnify CEMANET against any damages, liabilities, fines and risks that may follow from the contravention of these terms and conditions of service.
11.2 CEMANET shall not be liable for any damage, loss or liability of whatever nature arising from the use or inability to use the services or any other content provided.
11.3 Further, CEMANET makes no representations or warranties, implied or otherwise, amongst others, that the content and technology available from the website are free from errors or omissions or that the services will be 100% uninterrupted and error free.
11.4 These terms and conditions of service together with any other contractual documents expressly referenced in these terms and conditions of service contain all of the terms of agreement between the User and CEMANET.
11.5 The services supplied are on an "as is" basis and are not supplied to meet the User's individual requirements. To the fullest extent permitted by law, CEMANET disclaims all representations and warranties relating to the Services (whether express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose). It is the sole responsibility of the User to satisfy itself prior to entering into this agreement with CEMANET that the services will meet the User's individual requirements and be compatible with the User's hardware and/or software and message recipient handsets and devices.
11.6 Users agree to indemnify CEMANET fully against any claim by any third party, including message recipients or End Users, as a result of any system failure, message corruption, interruption or termination of services, unsolicited direct marketing, harassment, emotional disturbance, inappropriate or obscene content, breach of privacy or breach of data security, provided that none of the foregoing result from CEMANET’ own gross negligence or fraudulent acts or omissions.
11.7 Users shall not hold CEMANET against any reasonable damages, awards, penalties or legal costs claimed or imposed by any party as a result of any commission or omission by the User that constitutes a breach of any legislation, regulations, code of conduct or network provider codes or practice or acceptable usage policies.
11.8 In the event of any litigation between CEMANET and the User, the successful party shall be entitled to recover their reasonable legal costs incurred by it in enforcing its rights on an attorney and client scale.
11.9 Users shall indemnify CEMANET and hold them unaccountable against any reasonable claims, actions or damages from any party as a result of the fraudulent or unauthorized use of the User's Username and password or loss thereof.
11.10 Without derogating from the foregoing, CEMANET shall not 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 unauthorized use of the services, whether such damages arise in contract, under statute, in equity, at law or otherwise.
11.11 Notwithstanding the foregoing provisions, in the event that a User has a valid claim against CEMANET arising from any services provided under these terms and conditions of service then the User's claim shall be limited to payment of an amount equal to the amount paid for the services that are the subject of the claim in the month prior to any such claim arising.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these terms and conditions of service is found to be unenforceable or invalid, such term(s) or condition(s) shall be severable from the remaining terms and conditions of service. The remaining terms and conditions of service shall not be affected by such unenforceability or invalidity and shall remain enforceable and applicable.
13. Disclosure of Information
These terms and conditions of service apply to all websites operated by CEMANET including the Website and shall include any page or part thereof.
14. Proprietary Rights
14.1 All trademarks, content and data on the website, including but not limited to software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to CEMANET, and as such, are protected from infringement by domestic legislation, international legislation and treaties.
14.2 The User may not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/application; copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to CEMANET products and/or services. The software is provided and applications are offered "as is" and subject to the service warranty disclaimers and limitations of liability found elsewhere in these terms and conditions of service. It is the responsibility of the User to test the services should they wish prior to entering into this agreement.
14.3 Content from the Website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of CEMANET.
15.1 Any third-party site may link to the Website provided that such a link is directed at the home page of the Website. It is expressly prohibited for any person, business, entity or website to link to any page other than the home page of the Website, without the prior written approval of CEMANET.
15.2 CEMANET may provide links to the User only as a convenience and the inclusion of any link does not imply CEMANET’ endorsement of such site. Any linked third party websites,pages or advertisements that may be accessible from the Website, including content posted in social media displayed on the Website are not subject to the control of CEMANET.
15.3 CEMANET shall not be liable whether directly or indirectly in any way for the contents, use, or inability to access any such third-party websites, pages or advertisements and any use or reliance shall be at the User’s sole risk.
15.4 It is expressly prohibited for any person, business, entity, or website to frame any page on this Website, including the home page, in any way whatsoever, without the prior written approval of CEMANET.
16. Suspension and Termination
16.1 CEMANET may suspend (indefinitely or for such period as it may consider appropriate) or terminate any services at any time by giving sufficient notice to the User and stating its reason(s) for the suspension on termination of the service and, in any circumstances which CEMANET deems appropriate, the means by which the User can avoid such suspension or termination provided that nothing herein shall prejudice or affect any right(s) of CEMANET to suspend or terminate any service.
16.2 CEMANET may suspend (indefinitely or for such period as it may consider appropriate) or terminate (including terminate after suspending) any of the services at any time after failure, interruption, disruption or congestion of or in any telecommunication network, system or services (whether of CEMANET or any other person).
17. Force Majeure
Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and/or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion, and acts of God including pandemics, epidemics.
18. Applicable Law
These terms and conditions of service shall be governed by, construed and interpreted in accordance with the laws of the Republic of Kenya and the Kenyan courts shall have exclusive jurisdiction in respect of any disputes that may arise between the User and CEMANET.
19. Entire Agreement
These terms and conditions of service constitute the entire agreement between CEMANET and the User.