TRAUMACALL TERMS AND CONDITIONS
- The Service
The Service constitutes a technology platform that enables users of TraumaCall (Pty)Ltd’s mobile application or website provided as part of the Services to request trauma counselling services in a critical situation from nearby independent third party counsellors under agreement with TraumaCall. This Service will only work in areas that have counsellors.
The same technology platform enables independent third party counsellors to register with TraumaCall to provide the Services to users.
Where you are registered for the Alert Service and you have activated the Alert in accordance with its proper use you will be assisted in the case of an emergency by tracking your mobile device and providing your relevant emergency contacts with your location. We will seek to describe your mobile device’s position and your details as known to us, to the relevant 24 hour Emergency Contact Centre, your nominated contact/s and/or emergency authorities.
By using the Service (i) the user provides permission to said third party counsellors or emergency contacts and (ii) the counsellor provides permission to users, to trace their mobile devices to the location where the Service will take place and to gain access to the property upon which their device is located. Unless otherwise agreed by TraumaCall in a separate written agreement with you, the Service is made available solely for personal, non-commercial use.
You acknowledge that TraumaCall does not provide counselling services or function as a counselling provider and that all such counselling services are provided by independent third party counsellors who are neither employees, nor agents, nor representatives of TraumaCall.
Furthermore, TraumaCall assumes no responsibility for any act, omission or doing of any third party counsellor.
- The Agreement
This agreement shall be governed by and interpreted in all respects in accordance with the laws of South Africa and the parties agree to submit to the exclusive jurisdiction of the South African Courts in respect of the interpretation of, and any disputes relating to, this agreement or any of its provisions.
- User accounts
In order to use the Service, you must register and maintain an active personal user Services account on the TraumaCall app. Registration requires you to submit to TraumaCall certain personal information, such as your mobile phone number and ID number. Where you have already been pre-registered through your company for the Alert Service you will merely enter your ID Number to verify you. Your profile requires you to submit to TraumaCall your mobile phone number, email address and other optional personal information.
You agree to maintain accurate, complete, and up-to-date information in your profile. Your failure to maintain accurate, complete, and up-to-date profile information, may result in your inability to access and use the Service or TraumaCall’s termination of these Terms with you. You are responsible for all activity that occurs under your profile, and you agree to maintain the security of your profile at all times. Unless otherwise permitted by TraumaCall in writing, you may only use your account on one device at a time.
- User Requirements and Conduct
You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Counsellor or any other party. Where you are registered for the Alert Service you may not raise a false alarm or do a hoax call as this is a serious offence and may lead to civil and/or criminal charges being brought against you. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
- User Provided Content
TraumaCall may, at TraumaCall's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to TraumaCall through the Services, textual, audio, and/or visual content and information, including commentary and feedback related to the Services and initiation of support requests ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to TraumaCall , you grant TraumaCall a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and TraumaCall's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant TraumaCall the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor TraumaCall's use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by TraumaCall in its sole discretion, whether or not such material may be protected by law. TraumaCall may, but shall not be obligated to, review, monitor, or remove User Content, at TraumaCall's sole discretion and at any time and for any reason, without notice to you.
- Text Messaging
By creating an Account, you agree that the Service may send you informational text (SMS) messages as part of the normal business operation of your use of the Service. You may opt-out of receiving text (SMS) messages from TraumaCall at any time by sending an email to support@TraumaCall.co.za indicating that you no longer wish to receive such messages, along with the phone number of the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Service.
- Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Service. Your mobile network’s data and messaging rates and fees may apply if you access or use the Service from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service and Applications and any updates thereto. TraumaCall does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by TraumaCall; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Service; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (vi) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks.
- Third Party Services and Content
We can change these Terms if we provide you notice and an opportunity to comment. Your use of the Services from the moment of change of the Terms will be taken by us as acceptance of those changed Terms.
You will resolve any claim, cause of action or dispute ("claim") you have with us arising out of or relating to these Terms or TraumaCall exclusively under South African law. The laws of South Africa will govern these Terms, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
The Service and all rights therein are and shall remain TraumaCall’s property or the property of TraumaCall’s licensors. Neither these Terms nor your use of the Service convey or grant to you any rights: (i) in or related to the Service except for the limited license granted above; or (ii) to use or reference in any manner TraumaCall’s company name, logo, product and service name, trademarks or service marks or those of TraumaCall’s licensors.
Subject to your compliance with these Terms, TraumaCall grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferable license to: (i) access and use the Application on your personal device solely in connection with your use of the Service; and (ii) access and use any content, information and related materials that may be made available through the Service, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by TraumaCall and TraumaCall’s licensors.
The services are provided “as is” and “as available.” TraumaCall disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, TraumaCall makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the service, or that the service will be uninterrupted or error-free. TraumaCall does not guarantee the quality, suitability, safety or ability of third party providers. You agree that the entire risk arising out of your use of the service, in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
- Limitation of Liability
TraumaCall shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the service, even if TraumaCall has been advised of the possibility of such damages. TraumaCall shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the service or your inability to access or use the service; or (ii) any transaction or relationship between you and any third party provider, even if TraumaCall has been advised of the possibility of such damages. TraumaCall shall not be liable for delay or failure in performance resulting from causes beyond TraumaCall’s reasonable control. In no event shall TraumaCall’s total liability to you in connection with the service for all damages, losses and causes of action exceed five thousand rands (r5000). TraumaCall’s service may be used to alert members of your family if you are in an emergency situation but you agree that TraumaCall has no responsibility or liability to you related to the alert than as expressly set forth in these terms. The limitations and disclaimer in section 14 and 15 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
You agree to indemnify and hold TraumaCall and its officers, directors, employees and agents harmless from any and all claims, demands, liabilities, financial losses (including attorneys’ fees), loss of property or any other assets, injury, reputation risk arising out of or in connection with: (i) your use of the Service; (ii) your breach or violation of any of these Terms; (iii) TraumaCall’s use of your user content (iv) your violation of the rights of any third party
- Governing Law; Arbitration
Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of South Africa, excluding its rules on conflicts of laws. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its construction or its enforceability (any "Dispute") shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules ("ICC Mediation Rules"). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce ("ICC Arbitration Rules"). The ICC Rules' Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be Pretoria, South Africa. The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
No joint venture, partnership, employment or agency relationship exists between you, TraumaCall or any Third Party Provider as a result of the contract between you and TraumaCall or use of the Service. If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”