General Notice

Thank you for reading Smile’s Acceptable Use Policy (AUP). By accessing this website, or by contracting with Smile for service, the user agrees, without limitation or qualification, to be bound by this policy and the terms and conditions it contains, as well as any other additional terms, conditions, rules or policies which are displayed to the user in connection with this service/website.

The purpose of this AUP is to comply with the relevant laws of the Republic; to specify to customers and users of Smile’s service/website what activities and online behaviour are considered an unacceptable use of the service/website; to protect the integrity of Smile’s network and to specify the consequences that may flow from undertaking such prohibited activities.

This document contains a number of legal obligations which the user is presumed to be familiar with. As such, Smile encourages the user to read this document thoroughly and direct any queries to Smile’s customer services/legal department at +27 11 250 5428.

Smile respects the rights of its customers and the users of Smile’s services to freedom of speech and expression; access to information; privacy; human dignity; religion, belief and opinion in accordance with the constitution of the Republic. Smile undertakes not to interfere with any of those rights unless required to do so by law; unless those rights are exercised for unlawful purposes; or unless the exercise of those rights threatens to cause harm to another person or affect the integrity of the Smile network.

ISPA membership and Code of Conduct

Smile confirms that in compliance with section 72 of the Electronic Communications and Transactions Act 25 of 2002, Smile is a member of the Internet Service Providers' Association (ISPA) and has adopted and implemented the association's official Code of Conduct, which can be viewed at http://www.ispa.org.za/code.

Unlawful Use

Smile’s services/website may only be used for lawful purposes and activities. Smile prohibits any use of the Smile websites/network including the transmission, storage and distribution of any material or content using Smile’s network that violates any law or regulation of the Republic. This includes:

1. Any violation of local and international laws prohibiting child pornography; obscenity; discrimination (including racial, gender or religious slurs) and hate speech; or speech designed to incite violence or hatred, or threats to cause bodily harm.
2. Any activity designed to defame, abuse, stalk, harass or physically threaten any individual in the Republic or beyond its borders; including any attempt to link to, post, transmit or otherwise distribute any inappropriate or defamatory material.
3. Any violation of Intellectual Property laws including materials protected by local and international copyright, trademarks and trade secrets. Moreover Smile cannot be held liable if the user makes any unlawful use of any multimedia content accessed through the search facility provided by Smile’s network, or otherwise available through access to Smile’s network, whether for commercial or noncommercial purposes.
4. Any violation of the individual's right to privacy, including any effort to collect personal data of third parties without their consent.
5. Any fraudulent activity whatsoever, including dubious financial practices, such as pyramid schemes; the impersonation of another subscriber without their consent; or any attempt to enter into a transaction with Smile on behalf of another subscriber without their consent.
6. Any violation of the exchange control laws of the Republic.
7. Any activity that results in the sale, transmission or distribution of pirated or illegal software.
8. Failing to respond to a request by a recipient of unsolicited mail to be removed from any mailing or direct marketing list and continuing to send unsolicited mail following such a request for removal.

Where any user resides outside of the Republic, permanently or temporarily, such user will be subject to the laws of the country in which s/he is currently resident and which apply. On presentation of a legal order to do so, or under obligation through an order for mutual foreign legal assistance, Smile will assist foreign law enforcement agencies (LEA) in the investigation and prosecution of a crime committed using Smile’s resources, including the provisioning of all personal identifiable data.

Prohibited Activities

The following sections outline activities that are considered an unacceptable use of Smile’s services/network/websites and also detail the guidelines for acceptable use of certain facilities/services, as the case may be.

Threats to Network Security

Any activity which threatens the functioning, security and/or integrity of Smile’s network is unacceptable. This includes:

• Any efforts to attempt to gain unlawful and unauthorised access to Smile’s network or circumvent any of the security measures established by Smile for this goal;
• Any effort to use Smile’s equipment to circumvent the user authentication or security of any host, network or account ("cracking" or "hacking");
• Forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting;
• Any effort to breach or attempt to breach the security of another user or attempt to gain access to any other person's computer, software, or data without the knowledge and consent of such person;
• Any activity which threatens to disrupt the service offered by Smile through "denial of service attacks"; flooding of a network, or overloading a service or any unauthorised probes ("scanning" or "nuking") of others' networks;
• Any activity which in any way threatens the security of Smile’s network by knowingly posting, transmitting, linking to or otherwise distributing any information or software which contains a virus; Trojan horse; worm, lock, mail bomb, cancelbot or other harmful, destructive or disruptive component.
• Any unauthorised monitoring of data or traffic on Smile’s network without Smile’s explicit, written consent.
• Any unsolicited mass mailing activity including direct marketing; spam and chain letters for commercial or other purposes, without the consent of the recipients of those mails.

Public Space and Third Party Content and sites

In reading this AUP or in signing a service contract with Smile, the user acknowledges that Smile has no power to control the content of the information passing over the Internet and its applications, including e-mail; chat rooms; news groups; or other similar fora, and that Smile cannot be held responsible or liable, directly or indirectly, for any of the abovementioned content, in any way for any loss or damage of any kind incurred as a result of, or in connection with the user’s use of, or reliance on, any such content.

Smile’s services also offer access to numerous third party webpages. The user acknowledges that Smile exercises absolutely no control over such third party content, or sites and in such cases, Smile’s network is merely a conduit or means of access and transmission. This includes, but is not limited to, third party content contained on or accessible through the Smile network websites and web pages or sites displayed as search results or contained within a directory of links on the Smile network. It remains the user’s responsibility to review and evaluate any such content, and that any and all risk associated with the use of, or reliance on, such content rests with the user.

Access to public Internet spaces, such as bulletin boards, Usenet groups, chat rooms and moderated forums is entirely voluntary and at the user’s own risk.

Smile employees do not moderate any of these services, or the user’s communications, transmissions or use of these services. Smile does not undertake any responsibility for any content contained therein, or for any breaches of the user’s right to privacy that the user may experience as a result of accessing such spaces.

Usenet Newsgroups

The user is responsible for determining and familiarizing himself or herself with the written policies of a given newsgroup before posting to it.

The user must comply with these guidelines at all times which can be obtained from other users of the newsgroup upon request, or from the group's administrators/moderators.

The following are prohibited practices with regard to Usenet newsgroups and Smile reserves the right to delete and/or cancel posts which violate the following conditions:

1. Excessive cross-posting of the same article to multiple newsgroups.
2. Posting of irrelevant or off-topic material to newsgroups (also known as USENET spam).
3. Posting binaries to a non-binary newsgroup.
4. Posting adverts, solicitations, or any other commercial messages unless the guidelines of the newsgroup in question explicitly permit them.

Unsolicited, Spam and Junk mail

Spam and unsolicited bulk mail are highly problematic practices. They affect the use and enjoyment of services by others and often compromise network security. Smile will take swift and firm action against any user engaging in any of the following unacceptable practices:

1. Sending unsolicited bulk mail for marketing or any other purposes (political, religious or commercial) to people who have not consented to receiving such mail;
2. Operating or maintaining mailing lists without the express permission of all recipients listed;
3. Failing to promptly remove from lists invalid or undeliverable addresses or addresses of unwilling recipients or a recipient who has indicated s/he wishes to be removed from such list;
4. Using Smile’s service to collect responses from unsolicited e-mail sent from accounts on other Internet hosts or e-mail services, that violate this AUP or the AUP of any other Internet service provider;
5. Including Smile’s name in the header or by listing an IP address that belongs to Smile in any unsolicited email whether sent through Smile’s network or not;
6. Failure to secure a customer's mail server against public relay as a protection to themselves and the broader Internet community. Public relay occurs when a mail server is accessed by a third party from another domain and utilised to deliver mails, without the authority or consent of the owner of the mail-server. Mail servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection such delivery must be disallowed. Smile reserves the right to examine users' mail servers to confirm that no mails are being sent from the mail server through public relay and the results of such checks can be made available to the user. Smile also reserves the right to examine the mail servers of any users using Smile’s mail servers for "smarthosting" (when the user relays its mail via a Smile mail server to a mail server of its own or vice-versa) or similar services at any time to ensure that the servers are properly secured against public relay. All relay checks will be done in strict accordance with Smile’s privacy policy.
7. Should you find yourself the victim of any of the aforementioned practices on or from Smile's network, please contact reportspam@smilecoms.com.

Protection of Minors

Smile prohibits users from using Smile’s service to harm or attempt to harm a minor, including, but not limited to, by hosting, possessing, disseminating, distributing or transmitting material that is unlawful, including child pornography.

Privacy and Confidentiality

Smile respects the privacy and confidentiality of Smile’s customers and users of Smile’s service. Please review Smile’s privacy policy which details how Smile collects and uses personal information gathered in the course of operating this service.

User Responsibilities

Users are responsible for any misuse of Smile services that occurs through the user’s account. It is the user’s responsibility to ensure that unauthorised persons do not gain access to, or misuse Smile’s service.

Smile urges users not to reply to unsolicited mail or "spam", not to click on any suggested links provided in the unsolicited mail. Doing so remains the sole responsibility of the user and Smile cannot be held liable for the user being placed on any bulk mailing lists as a result.

Where the user has authorised a minor to use any of Smile’s services or access its websites, the user accepts that as the parent/legal guardian of that minor, the user is fully responsible for: the online conduct of such minor; controlling the minor's access to and use of any services or websites; and the consequences of any misuse by the minor, including but not limited to transactions entered into by the minor using such access.

Smile cannot be held liable for any business dealings the user has with any third parties on the Internet, including any vendors, or advertisers found on, or through, the Smile network. Further, Smile assumes no responsibility whatsoever for any charges the user or any user of the user’s account, incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable customs and exchange control laws in connection with any such transactions shall be the user’s.

Notice and Take-down Procedures

Smile confirms that it has a procedure in place for the notice and take-down of illegal material. In compliance with section 77 of the Electronic Communications and Transactions Act (No. 25 of 2002) Smile’s designated agent for this process is the Internet Service Providers’ Association. ISPA can be reached at +27 87 805 3327 or takedown@ispa.org.za. The notice and take-down procedure can be viewed at http://www.ispa.org.za/code.

Users are also notified of the content and procedures of the ISPA Code of Conduct which may be used against any Internet service provider who fails to comply with the code of conduct. We urge users to familiarise themselves with this code.

Complaints and procedures

It is the user’s responsibility to familiarise himself or herself with the procedure set out below and report any cases of violation of this AUP to Smile’s designated complaints handling agent.

Please note that Smile cannot handle complaints concerning networks or users that do not have service contracts with Smile or Smile’s affiliates, or are outside of Smile’s control.

In order for Smile to thoroughly investigate the complaint and take appropriate action, all complaints must be in writing, via fax or e-mail and contain as much information as possible, including, but not limited to:

• the origin of abuse or offence, including the website, full mail headers, relevant logfile extracts etc;
• any contact details for the source of the complaint;
• a brief explanation of why the incident is considered to be an offence.

Smile discourages anonymous complaints being made via this service, and urges complainants to supply their name and contact details to Smile. Such information will not be released, except where required by law enforcement. Anonymous complaints will however be acted upon as long as sufficient detail as outlined above is supplied.

Action following breach of the AUP

Upon receipt of a complaint, or having become aware of an incident, Smile may take any of the following steps:

• In the case of a network, inform the user's network administrator of the incident and request the network administrator or network owner to address the incident in terms of this AUP and the ISPA Code of Conduct;
• In severe cases suspend access of the user's entire network until abuse can be prevented by appropriate means;
• In the case of individual users, warn the user; suspend the user's account and/or revoke or cancel the user's network access privileges completely;
• In all cases, charge the offending parties for administrative costs as well as for machine and human time lost due to the incident;
• Assist other networks or website administrators in investigating credible suspicions of any activity listed in this AUP;
• Institute civil or criminal proceedings;
• Share information concerning the incident with other Internet access providers, or publish the information, and/or make available the users' details to law enforcement agencies

Reservation and Non Waiver of Rights

Smile reserves the right to amend or alter this policy at any time, and without notice to the user.

Smile reserves the right to take action against any individuals, companies or organizations that violate any of the prohibited activities set out herein, or engage in any illegal or unlawful activity while accessing Smile’s services, to the fullest extent of the law.

Smile reserves the right, at its sole discretion, to act against other types of abuse not listed in this document and to investigate or prevent illegal activities being committed over the Smile network.

Smile reserves the right to monitor user and network traffic for site security purposes and prevent any unauthorised attempts to tamper with the Smile site or cause damage to Smile’s property.

Smile reserves the right to suspend, revoke or cancel Smile’s services to the subscriber/user if the safety and integrity of Smile’s resources are placed at risk in continuing to provide service to the subscriber/user.

Smile reserves the right to remove any information or materials in whole or in part, that, in Smile’s sole discretion, is deemed to be offensive, indecent, or otherwise objectionable.

Smile does not undertake to guarantee the security of any data passing through its networks. Although Smile will provide a "best effort" service, including regular updates on computer viruses and other threats to security of data, it is the responsibility of the communicating parties to safeguard their data, and Smile cannot be held liable for any loss or damage arising as result of the failure to do so.

Smile does not waive its right to enforcement of this AUP at any time, or prejudice its right to take subsequent action, should Smile fail, neglect or elect not to enforce a breach of the AUP at any time.