IMPORTANT: Please read section 2 carefully to make sure that you understand which Clickatell entity you are contracting with.
PLEASE NOTE: It is important that you read and understand all of our terms and conditions. However, there are a few key points that we need to highlight:
- Expiration of Message Credits. Message credits expire if you do not use them within 120 days from purchase. Please use your Clickatell account regularly to avoid expiration of message credits.
- No access to emergency services. Clickatell’s services are not a replacement for your ordinary mobile or fixed line telephone. Our services do not allow you to make emergency calls to emergency services. You must make alternative communication arrangements to ensure that you can make emergency calls if needed.
- Check restrictions on use. In some countries there are restrictions that apply to various types of sms messages. It is your responsibility to ensure that you are legally allowed to send the relevant type of sms messages to mobile subscribers.
- No ownership of numbers. If Clickatell allocates a short code or long number (collectively referred to as “number”) to you, you do not own that number and you do not have a right to retain that number indefinitely. Clickatell may need to change or withdraw the number allocated to you from time to time. You will not transfer or attempt to transfer your number/s to anyone else. You must ensure that you comply with any number allocation requirements that may be contained in our terms and conditions as failure to do so may result in the number being withdrawn.
TABLE OF CONTENTS
- ACCEPTANCE OF THESE TERMS AND CONDITIONS
- YOUR AGREEMENT WITH CLICKATELL
- DEFINITIONS AND INTERPRETATION
- CHANGES TO TERMS
- ADDITIONAL TERMS
- SERVICES – GENERAL
- LIMITATION OF LIABILITY AND INDEMNITY
- THIRD PARTY GOODS AND SERVICES
- MOBILE-ORIGINATED (MO) AND PREMIUM RATE SERVICES – GENERAL
- MOBILE-ORIGINATED (MO) OR PREMIUM RATE SERVICES – ADVERTISING GUIDELINES
- APPLICATION PROGRAM INTERFACE (API) SERVICE
- UK DEDICATED AND SHARED SHORTCODE SERVICES
- ACCOUNT, PASSWORD AND SECURITY
- YOUR PRIVACY
- MESSAGES AND OTHER LIMITATIONS
- YOUR CONDUCT
- USE OF THE CLICKATELL WEBSITE
- ENDING A SERVICE
- TRIAL SERVICES
- CHARGES AND PAYMENT
- EFFECT OF ENDING THIS AGREEMENT OR SUSPENSION OF SERVICE
- INTELLECTUAL PROPERTY AND DOWNLOADS
- INTERCEPTION OF COMMUNICATION
- GOVERNING LAW AND JURISDICTION
- GENERAL PROVISIONS
- DISPUTES AND ARBITRATION
- ECT ACT INFORMATION AND PROVISIONS
- PROMOTION OF ACCESS TO INFORMATION ACT MANUAL
1. Acceptance of these Terms and Conditions
By registering for, or using any of our services you agree that you have read, understand and are bound by these terms, regardless of how you registered for or use the services.
Without limiting the above, we may ask you to accept any or all of the terms when you first register for, or start using a service.
If you do not want to be bound by the terms, you must not register for, or use a service.
If you concluded a written contract with us, you will also be bound by these terms. However, to the extent that there is a conflict between the written contract and these terms, the written contract will prevail.
2. Your agreement with Clickatell
Various entities within the Clickatell group of companies may provide services to our clients. The Clickatell entity that provides our services to you depends on where you are located:
If the billing address on your Clickatell account is in North, Central or South America, Australia, New Zealand, Asia or any other country or territory within the Asia-Pacific region, you are contracting with Clickatell, Inc., a corporation incorporated under the laws of the State of Delaware, USA.
If the billing address on your Clickatell account is in Europe, Eastern Europe or the United Kingdom, you are contracting with Clickatell Limited, a company incorporated under the laws of England and Wales.
If the billing address on your Clickatell account is in the Middle East or Africa, you are contracting with Clickatell (Pty) Ltd, a company incorporated under the laws of the Republic of South Africa.
In these terms –
- agreement means the agreement between us and you that comes about by your acceptance of these terms as set out in the section headed “Introduction” above;
- Clickatell means, as the context requires:-
- Clickatell Inc., registration no. FEIN 34-200035 ,with its principle offices at 3200 Bridge Parkway, Suite 201, Redwood City, CA 94065
- Clickatell Limited, registration no. 4318426 ,with its principle offices at Bank House, 81 St Judes Road, Englefield Green, Surrey, TW20 0DF
- Clickatell (Pty) Ltd, registration no. 2000/013534/07,with its principle offices at 7th Floor, Manhattan Plaza, 100 Edward Street, Bellville, South Africa
- Clickatell website means the websites that we own and operate including marketing.dev/microsites/co.za/, www.clickatell.co.za, www.clickatell.co.uk and www.mobilemessagingmarket.com including any page, part or element thereof;
- content includes any information, data, text, music, sound, graphics, video, messages, hyperlinks or tags;
- downloads means any software, data, application, code, files or content that you retrieve, view or download when using a service;
- charges means the amounts we charge you for rendering our services, including (without limitation) our transaction or subscription charges, and any third party charges we incur;
- ECT Act means the Electronic Communications and Transactions, Act 25 of 2002 of South Arica as may be amended or re-enacted from time to time;
- intellectual property rights includes (without limitation) any and all rights, title and interest (whether registered or not) in and to any intellectual property, copyright, related rights, patents, utility models, trade marks, trade names, service marks, designs, logos, devices, know-how, trade secrets and inventions (whether patentable or not), goodwill, source code, meta tags, databases, text, content, graphics, icons, and hyperlinks and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such rights which are all as such protected by domestic and international legislation and treaties from infringement;
- service means any service, product, goods, downloads, content, program or website that we may provide from time to time;
- operator means mobile network operators and mobile virtual network operators;
- terms means the terms and conditions set out herein, and includes any additional terms (as defined in the section headed “Additional Terms” below);
- use includes (without limitation) accessing, retrieving, downloading, logging on to or viewing a service;
- VAT means value-added tax;
- we, us and our means Clickatell and includes our successors in title and/or assigns;
- you and your means any natural person who registers for, or uses any of our services and/or any legal entity on whose behalf any of our services are registered for or used;
The singular includes the plural and vice versa; and
Headings are only for reference and not interpretation. Hyperlinks in these terms are part of these terms under section 11(3) of the ECT Act. Any hyperlinks which are not operational will not in any way detract from the validity and interpretation of these terms.
We may change any or all of the terms including (without limitation) the charges at any time without notice to you.
Any changes will become effective when we publish them on the Clickatell website.
You must check the Clickatell website and the terms regularly for changes.
By continuing to use our services after we make the changes, you agree to be bound by the changed terms and charges.
If you do not accept the changed terms or charges, you must stop using the service (see the section headed “Ending a service” below).
Some of our websites or documents may contain additional rules, guidelines, charges or terms and conditions (additional terms).
By subscribing to or using our services relating to those websites or documents, you agree to be bound by, and comply with those additional terms.
These terms apply to the extent that there is a conflict between these terms and the additional terms.
We always try to provide the services to the best of our ability.
We may suspend, interrupt, change or end any service for any reason without notice.
We will try to widely publicise changes to the services which apply generally.
We may also give you advance notice of any interruption of a service due to maintenance.
In this section –
damages means all damages of whatever nature and includes (without limitation) all damages, loss, claims or costs, including (without limitation) loss of data, profits or custom, or business foregone whether -
- in contract, delict or otherwise;
- direct, indirect, special or consequential;
- foreseeable or not; and
- notification of the damages were given in advance or not; and
uncontrollable events mean any circumstances beyond our reasonable control, including (without limitation) fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, or any act or omission on the part of a third party.
You subscribe to and use any service at your own risk. Subject to the ECT Act, neither we nor our affiliates, employees, shareholders, agents or service providers are liable to you or any third party for any damages suffered by you or a third party howsoever arising, including (without limitation) any damages suffered by you due to: our negligence, or the negligence of our affiliates, employees, shareholders, agents or service providers; your use of a service; any interruption of, or error in the service; our failure to fulfill our obligations as a result of uncontrollable events; or disclosure of your information. If you suffer damages or are dissatisfied with a service your only remedy is to end the agreement or stop using the service (see the section headed “Ending a service” below). You indemnify, us and our affiliates, employees, shareholders, agents and service providers, against all third party claims, damages and legal costs howsoever arising from or relating to - your breach of these terms; any claims made by third parties by your use of a service. No warranties Despite anything to the contrary in these terms, we – provide all services “as is” and “as available”; and don’t warrant, represent or guarantee, whether expressly or by implication, that any service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights. Without limiting the generality of the above, no service is fault-tolerant or is designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, including (without limitation) to use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which any failure could lead directly to death, personal injury, or severe physical or environmental damage (“high risk activities”). In addition to the other disclaimers and limitations contained within this agreement, we and our affiliates, shareholders, employees, agents and service providers specifically disclaim any express or implied warranty of fitness for high risk activities including emergency notification services.
You subscribe to and use any service at your own risk.
Subject to the ECT Act, neither we nor our affiliates, employees, shareholders, agents or service providers are liable to you or any third party for any damages suffered by you or a third party howsoever arising, including (without limitation) any damages suffered by you due to:
our negligence, or the negligence of our affiliates, employees, shareholders, agents or service providers;
your use of a service;
any interruption of, or error in the service;
our failure to fulfill our obligations as a result of uncontrollable events; or
disclosure of your information.
If you suffer damages or are dissatisfied with a service your only remedy is to end the agreement or stop using the service (see the section headed “Ending a service” below).
You indemnify, us and our affiliates, employees, shareholders, agents and service providers, against all third party claims, damages and legal costs howsoever arising from or relating to -
your breach of these terms;
any claims made by third parties by your use of a service.
No warranties Despite anything to the contrary in these terms, we –
provide all services “as is” and “as available”; and
don’t warrant, represent or guarantee, whether expressly or by implication, that any service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights.
Without limiting the generality of the above, no service is fault-tolerant or is designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, including (without limitation) to use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which any failure could lead directly to death, personal injury, or severe physical or environmental damage (“high risk activities”). In addition to the other disclaimers and limitations contained within this agreement, we and our affiliates, shareholders, employees, agents and service providers specifically disclaim any express or implied warranty of fitness for high risk activities including emergency notification services.
You should not regard any information, ideas and opinions expressed on the Clickatell website as professional advice or as our official opinion. Please get professional advice before you take any course of action related to the information, ideas or opinions expressed on the Clickatell website.
Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so the above limitations or exclusions may not apply. In such jurisdictions, our liability (and the liability of our affiliates, employees, shareholders, agents, and service providers) shall be limited to the greatest extent permitted by applicable law.
In many cases, we provide the services of third parties, or our services in conjunction with those of third parties including (without limitation) network providers.
In those cases, the following conditions apply:
We provide such services subject to the terms, conditions and limitations imposed by those third parties.
If those third parties change, suspend or stop providing such services, we may similarly change, suspend or stop providing the services to you without notice. We may nevertheless try to provide such a service in another way or by using another third party.
You authorise us to provide any of your information to those third parties to the extent that it may be necessary to enable the third parties and ourselves to provide the services to you.
To the extent that there is a conflict between the third party’s terms and conditions and these terms, these terms prevail.
When you acquire goods, downloads or services from a third party through any of our services, you understand and agree that -
- we are not a party to the contract between you and the third party;
- we don’t have to monitor the third party service you use;
- the third party will be responsible for all obligations under the contract including (without limitation) warranties or guarantees;
- you must evaluate the goods, software or service and the applicable terms and conditions before acquiring the goods, software or service; and
- you indemnify us against any damages (as defined in the section headed “Limitation of liability and indemnity” above) howsoever arising from your acquisition and use of the third party goods, software or service.
We may reject or refuse any third party service used by you in conjunction with our service.
Messages are deemed to have been delivered when we have delivered or sent the messages to the immediate destination that our software is programmed for, including SMTP servers, mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message.
Please note that, although we focus on providing extensive coverage aggregation services, third party network providers may choose from time to time to not be part of our networks or the networks of our service providers. This may result in messages not being delivered.
In addition to the other terms, this section applies if you use any of our Mobile-originated (MO) or Premium Rate services.
We collect MO messages and pass these on to you in the methods described by us.
You are responsible for content of the service, as well as the cost of all bearer charges to provide the content to your end client.
Please note that to ensure that we comply with industry codes of conduct, you must route all MT messages directly or indirectly associated with any of our hosted short codes, or other two-way services, via our messaging gateway. This will enable us to ensure that all premium rate, short code messaging services and other two-way services offer the required confirmation messages as stipulated by the various codes of practice and that such messages can be validated as having been submitted. We may end the service immediately without notice if you don’t comply.
MO messages are charged at an agreed rate. Please refer to the pricing pages on our website and/or your signed agreement with Clickatell for the exact charge. These fees are subtracted real-time unless otherwise specified in a signed agreement with Clickatell.
You must ensure all times that there are enough credits in your account to be subtracted by us for incoming messages from your account. We may end the service immediately without notice to you if you don’t have enough credits in your account at any time to be subtracted by us for charges owed to us.
You may also contact our 24/7 call centre for more clarity on the charges.
Please note that for shared premium rate numbers, you must send a minimum of 500 (five hundred) MO messages per network per month before you are eligible for any revenue share.
South Africa shortcode customers: for a non-shared premium rate number, Vodacom requires that you send a minimum of 500 (five hundred) MO messages per number per month. If you don’t do this, we may end the service on 7 (seven) days’ email notice.
All messages sent in reply to any MO messages will be charged at our standard MT rates as published form time to time.
We will pay any revenue share due to you within 90 (ninety) days after we receive the relevant amount from the mobile network operator or third party involved.
Refer to the “Charges and Payment” section of this document.
If there are any differences between our records, your records or the mobile network operator / third party’s records, the records of the mobile network operator / third party are deemed to be correct and binding on us and you.
In addition to the other terms, this section applies if you use any of our Mobile-originated (MO) or Premium Rate services. The examples provided are in South African Rand but can be changed to your local currency.
In this section –
- advertisement means any form of communication with your clients including (without limitation) advertisements, brochures and websites;
- charges means network charges and premium charges;
- network charges means the charges of the network service providers for use of their networks, e.g. SMS, MMS, USSD, GPRS; and
- a premium charge means the content or value-added charges that you charge your clients for using your premium rate service.
This section sets out how you must advertise your services.
If you don’t advertise your service in the way set out in this section, we may –
- withhold your share of the monthly revenue for that service (if any) until you comply; or
- end the service if you fail to comply repeatedly.
All your advertisements must comply with the following rules:
- The advertisements must state the charges of your service fully and correctly. For example -
- if your service is a polyphonic ringtone which costs R3 by way of a premium rate SMS but which still has to be downloaded via WAP, then your advertisement must state the following: “R3 (including VAT) + download charges “;
- if it takes two SMSs to deliver a polyphonic ringtone, you cannot say that the charge is R3.00 if the net charge is R6.00. In such a case, the advertisement must state that the charge is R6.00 or “R3 per SMS (2 SMSs needed).”
- The advertisement must state the charges inclusive of VAT.
- The font size of the charges must be such that they can be easily seen in the advertisement. Your client must be able to see the charges with very little effort.
- Your charges must be located on the advertisement in such a place that your client can see it easily. Your client must be able to see the charges when looking at the advertisement without having to search the advertisement for the charges. You may not hide the charges in the terms and conditions.
- You may not state the charges in some advertisements and not in others.
- If you give your client the option to unsubscribe for a service, you may only charge network charges to unsubscribe and you may not charge premium charges.
- Your advertisement must state all the material terms and conditions to the extent that this is practical.
- Your advertisement must not contain our intellectual property.
- Your advertisement must make it clear that you, and not we, provide your service.
These advertising guidelines may change from time to time. Please ensure that you adhere to the local advertising guidelines in the country where you offer these services.
In addition to the other terms, this section applies if you use our application program interface (API) service.
We enable individuals or businesses to connect to our server in order to facilitate text messaging directly to our gateway.
We may approve or decline clients and API connections at our sole discretion.
We encourage the use and publicity of anti-spam policies.
We provide you with a login and password. You must specify what IP address range your messages will be posted from. This will ensure that the connection is at all times secure from our side. Any security measures over and above these are your responsibility.
Although we provide API connection specifications and will attempt to keep the specifications accurate and up to date, these specifications may be incomplete and may change from time to time without notice to you. You must test the specifications thoroughly on a regular basis, as we are not liable for specifications that may be incorrect or incomplete.
In addition to the other terms, this section applies if you use our dedicated or shared UK Shortcode service.
Please note that Clickatell’s UK Shortcode services may not be used for or in relation to adult services, gambling services, chat services or subscription services.
You acknowledge that you are aware of and agree to comply with and abide by the following laws, regulations and guidelines:
- Phone Pay Plus guidelines (www.phonepayplus.org.uk)
- Vodafone’s Premium Rate Services Code of Practice;
- Hutchison’s (Three) Code of Practice for 3rd Party Services;
- O2′s policy document Clear Breach of ICSTIS code and the promotion of premium rate services by spam SMS;
- Wireless Marketing Association principles. www.mmaglobal.co.uk;
- all Office of Telecommunications requests. www.ofcom.org.uk;
- IMBC guidelines (Independent Mobile Classification Body). www.imcb.org.uk;
- Data Protection Act of 1998 (including Directive 97/ 66/EC). www.hmso.gov.uk;
- Consumer Protection regulations 2000:Distance Selling (SI No.2334). www.oft.gov.uk;
- E- money Order and Gaming Lottery Acts;
- ASA www.asa.org.uk and BACC www.bacc.org.uk rules and guidelines;
- Short code regulation www.short-codes.com/pages/documents.php;
- Trusted Mobile Payment Framework ‘ Payforit’ guidelines for WAP billing;
- All adult content regulations and guidelines which vary from operator to operator.
- to ensure that the End–user’s bill is no more than £30 per day;
- to obtain permission from Clickatell for subscription services where the total cost of the service is greater than GBP 20 perm month or grater than GBP 4.50 per week;
- to ensure that End–user‘s consent is obtained prior to any transmission of content or message, and be prepared to give evidence of prior consent within 24 hours to Clickatell and UK operators;
- to allow Operators to view your marketing material at any time;
- to use dedicated short codes or shared 7**** series short code as a minimum;
- to comply with the STOP command for all subscription services and enable marketing messages to cease if the End-user sends STOP to a short code;
- that you may not send marketing messages to MISISDN’S if the opted-in database you use is older than 6 months
- to ensure that End User’s consent is obtained prior to any transmission of content or message to such End-user
- you are responsible for any fines from operators, regulators (including Phonepay Plus) or other parties that may result from using our UK Shortcode services; and
- to abide by all relevant provisions of the relevant Operators’ terms and conditions, as available on each Operator’s website.
If we send you a MSISDN or alias on your request in respect of a WAP session, you agree to ensure the following:
- That the service to the End–user is a registered premium service with Clickatell.
- That the billing relating to the identification must be performed via Clickatell
- That no marketing is performed to the MSISDN unless a specific request for marketing from the End–user is given.
If identification is used then approval must be gained from the operators via Clickatell.
You acknowledge that WAP services may be removed by the operators at any time without notice.
We may terminate your dedicated and shared short code with one month’s notice to you.
Should you want to terminate your dedicated or shared UK Shortcode, you agree to pay us a cancellation fee equal to 3 (three) months’ subscription fee. However, you may terminate a shared short code during the first month of applying therefore with no penalty.
You must at your own cost acquire and maintain such -
- computer, telephone, other communications equipment and software; and
- network or Internet access, as may be necessary to use our services.
You must ensure that your computer, phone, other communications equipment and software are compatible with the service concerned before you register for or use the service.
You must regularly back up all your data.
Sometimes, to register for, or use a service, you must give us information about yourself as prompted.
You warrant that all information you give is current, complete and accurate.
We may suspend or stop any service if you give information that is not current, complete and accurate.
You must promptly tell us if any of the information you provided changes.
You must choose a username and password. For some accounts we may assign a Client ID to you.
- must keep your password, account name and account information confidential and must not disclose these to third parties;
- must not circumvent, or attempt to circumvent, our user authentication systems;
- are entirely responsible for all payments and any activities that occur under your account;
- are liable for any damage, loss or costs that we or any third party sustain howsoever arising as a result of any of your actions, or any actions of a third party using your password, account name or account information; and
- indemnify us against any claim howsoever arising from any use of your password, account name or account information by a third party or as a result of your breach of this clause.
You must tell us immediately if there is any unauthorized use of your account or any other breach of security.
We respect your privacy.
We won’t edit, or disclose any of your personal information or account details without your prior permission unless we may or must do so by law. We won’t disclose or distribute any of the mobile numbers and/or content that you submit through our systems. Selected staff are authorised to do random monitoring to ensure that messaging comply with our terms and conditions. Should we receive a formal complaint from a mobile network operator / third party that is directly related to your Clickatell account, then we are oblidged do so by law.
We will try our best to protect your privacy on systems and websites that we control.
However, we are not liable for any unauthorised or unlawful disclosures of your personal information by third parties who are not subject to our control (for example, advertisers and websites that have links to the Clickatell website).
Please note that the information and privacy practices of our business partners, advertisers, sponsors or other sites to which we provides hyperlinks, may be different from ours.
We don’t warrant the security of the information which you transmit to us.
Our service will, however, transmit the sender’s name (from field) and/or email address with each message that the end-user sends.
You give us the right to send you communications of any updates, upgrades, notices, or other information that we deem important for you to know, relating to the service. Such communications shall not constitute spam. You may ask us to stop providing you with such communications.
We are not responsible for the deletion or failure to store information.
We have set no fixed upper limit on the number of message you may send through the service apart from how many credits are left in you account.
We may determine whether or not your conduct is consistent with the letter and spirit of the agreement and may end the service at any time if your conduct does not comply with the agreement.
Please see the section headed -> Ending a service ->below for more information on procedure for ending a service.
We may, in the future, with prior notification, limit the amount of storage space available to you.
The sender identification that can be included as part of a mobile text message is not a guaranteed feature. Your message might be sent without your sender identification and you will not be notified of this.
Although we try our best to deliver message quickly, messages may be delivered late due to queuing or mobile network operator / third party traffic. This may still result in the message being seen as “delivered”. Only “received by recipient” can be regarded as a final delivery to the handset. This “received by recipient” status is only available if we get it from the mobile network operator.
For all services provided to you by Clickatell, you must only use the services -
- in accordance with Clickatell’s terms and conditions;
- for lawful purposes;
- in accordance with all applicable local, national and international laws and regulations; and
- for the purposes for which they are designed.
Note: Clickatell’s customers are expected to research the local laws and regulations in the countries where they send SMS to/from and are expected to adhere to those laws and regulations.
When you use our services, you must not –
- do anything which violates any of Clickatell’s terms and conditions;
- send junk SMS messages, spam or any unsolicited messages (commercial or otherwise);
- make any misrepresentation including (without limitation)
- deceive, mislead, defraud or otherwise make misrepresentations to any person regarding any fact or circumstance;
- impersonate or attempt to impersonate or otherwise misrepresent your identity to any person for whatever purpose or create a false identity mobile phone address or header;
- change the content of communications received by you and thereafter forwarding same to others without indicating the nature of the changes; and
- forge or otherwise manipulate origination details and data on any electronic data message with a view to disguising or deleting the origin of anything transmitted using our service;
- transmit anything (including (without limitation) words and images) which is defamatory, discriminatory, obscene, lewd, offensive, threatening, abusive, harassing, harmful, hateful or which contains pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s rights regardless of whether such content is accessed, transmitted, propagated, distributed, created or stored in a public or private context;
- commit fraud or solicit or induce any person to participate in any commercial or non-commercial activities which are in the nature of a financial scam, “pyramid schemes” or “chain letters”;
- violate or infringe any intellectual property rights;
- do anything which does or may -
- damage, impair, overburden or disable any system of any person (including us) using our services;
- interfere with another user’s use and enjoyment of the service or of similar services;
- interfere with or disrupt networks connected to the service or violate the regulations, policies or procedures of such networks; or
- compromise or tamper with the security of our or any other person’s software, hardware, systems, networks or services;
- transmit any computer code which is designed to harm the operation of any software, hardware or network, including (without limitation) viruses, Trojan horses, worms, time bombs and cancelbots;
- harvest or collect information about others, including email addresses, without their consent for any reason;
- violate the privacy of any person;
- reproduce, replicate, copy, sell or re-sell any of -
- our services or any part thereof (including (without limitation) websites and web pages, or any services that constitute the provision of telecommunications services in terms of applicable legislation); or
- the information or data contained in our services;
- repeatedly or in a rapid manner transmit content in such a manner as to have the effect of harassing a recipient;
- transmit content that you do not own or do not have the right to publish or distribute;
- access any of our services or any similar service of any third party or any network without authorisation or through hacking, password mining or any other means;
- perform any illegal activities including (without limitation) promoting or facilitating access to, use of or sale of dangerous substances or devices;
- use the service for commercial use without authorisation; or
- help any third party to do any of the above.
Industry Codes of conduct. You must comply with the following codes of conduct as required by all services providers who operate services in any of the following territories. Please note: this list below is not comprehensive and customers are responsible for other regulation surrounding your use of Clickatell’s system.
The codes of conduct are incorporated herein by reference.
Country Specific regulation
United States of America
Adult Services are not permitted to USA mobile numbers. If you are found to submit adult services to USA mobile numbers then you are in contravention of Clickatell’s terms. Your account may be blocked without notice and no refunds will be done on any remaining credits. Should you be in arrears on your account, you will still be liable for payment of the account.
PhonepayPlus Code: http://www.phonepayplus.org.uk
WASPA SMS Code: http://www.waspa.org.za
WASPA SMS Advertising Guidelines: http://www.waspa.org.za
United State of America
Code of Conduct as per the Mobile Marketing Association (source MMA) USA: http://www.mmaglobal.com
We give you a non-transferable, non-exclusive license to view, download, save and print the content of the Clickatell website, provided that you use the content for private, personal, educational and/or non-commercial purposes only. You may not use the content for any other purpose without our prior written consent.
You may only cache the Clickatell website if –
- the purpose of the caching is to make the onward transmission of the content from the Clickatell website more efficient;
- the cached content is not modified in any way;
- the cached content is updated at least every 12 (twelve) hours; and
- the cached content is removed or updated when we so require.
You must direct hyperlinks to the Clickatell website from any other source to the home page of the Clickatell website. You may only provide hyperlinks beyond the home page of the Clickatell website with our prior written consent.
If you do link to pages beyond the home page of the Clickatell website you do so at your own risk and you indemnify Clickatell against any loss, liability or damage that may result from the use of such hyperlinks.
You may quote small and reasonable amounts of content available from the Clickatell website only if such a quote is placed in inverted commas and acknowledged.
You may not frame the Clickatell website in any manner whatsoever without our prior written consent.
Apart from bona fide search engine operators and use of the search facility provided on the Clickatell website, you may not use or attempt to use any technology or applications (including (without limitation) web crawlers, robots or web spiders) to search, collect or copy content from the Clickatell website for any purpose whatsoever, without our prior written consent.
You may not incorporate email addresses, names, telephone numbers or fax numbers published on the Clickatell website into any database used for electronic marketing or similar purposes.
We give no permission, whether expressly or by implication, that you may use the information on the Clickatell website to send unsolicited communications to us.
You may end a service at any time for any reason by following the procedure set out in the Clickatell website and these terms.
When you end a service, the relevant provisions of these terms will apply including (without limitation) the provisions set out under the section “Charges and payment” below.
If you have any questions about the right way to end this agreement please send an email to firstname.lastname@example.org
From time to time, Clickatell may offer free trial credits to new users. We expect new users to use these trial credits to test the functionality of our products and messaging platform. We regard multiple registrations to make use of multiple free credits as an abuse of our trial service. Accordingly, registration for more than 3 trial accounts, by a single user, is prohibited.
Charges. In consideration for using our services, you must pay us our charges, at the applicable rate then in effect, in the manner we specify including (without limitation) our charges for messages delivered or partially delivered using any available delivery method.
We may from time to time for limited periods offer “free trial” or similar promotions during which no charges or reduced charges shall apply. Such promotions are intended for you to test the capabilities of the service and/or for casual, personal use only. During such promotions, all these terms apply.
All charges are payable upfront. You must pay all charges upfront by buying service credits. If you have no credits, you cannot use the service. Once you have paid the upfront charges, you will only be able to use the service after a reasonable time to as we need to add the credits to your account.
Large enterprise customers may contact a Clickatell sales representative to discuss alternative billing methods.
Payment. Charges are due and payable at the time of, or before we deliver a message to your recipients, via every method of delivery based upon the billing plan we select. Payment is deemed to have been made as soon as the charge is available in our bank account. We may make other payment arrangements in our sole discretion, on a case-by-case basis.
You shall pay all charges free of set-off, charges or deductions.
If we issue an invoice to you, you must pay the invoice within 7 (seven) days of date of the invoice.
Your failure to pay any amount when due, will constitute a breach of these terms.
In the event of any Regulatory Fine as a result of the client’s service, Clickatell shall be entitled to withhold or deduct the amount of such fine, charge or sum from any sums payable to the Client under this agreement.
In the event that any amount on the client’s account is outstanding, Clickatell shall be entitled to withhold or deduct this amount from any sum payable to the Client whether in premium rated revenue share or any other fees.
Credit Card Payment. If you choose to pay for the service by credit card, and we receive no payment from the credit card issuer, you must pay all amounts due, on demand.
Your agreement with the credit card issuer governs the use of your credit card. So, please refer to that agreement to see what your rights and obligations are as a cardholder.
We charge in South African Rand (ZAR) and United States Dollars (USD), depending on the sales transaction. Conversion rates are worked out minimum once a day against the Euro. This may change the amount of the charges due to currency fluctuations. The final amount of the charges is the amount reflected on your credit card statement.
Taxes. Unless stated otherwise, all charges exclude taxes, including (without limitation) sales, use, personal property, value-added, withholding, excise, or other taxes and duties including penalties and interest. You are liable for, and must reimburse us for all taxes imposed in connection with or arising from the provision of any service (other than those assessed on our net income or capital gains). You will provide us with sufficient information to enable the timely payment of any applicable taxes. The sum payable by you upon which any taxes are based shall be increased to the extent necessary to ensure that, after the deduction or withholding of any taxes, we actually receive and retain, free from liability for such taxes, a net amount equal to the amount we would have received and retained in the absence of such taxes.
Increase in charges. We may increase our charges at any time by notice to you.
If we increase our charges after you have bought credits from us, we will give you 14 days’ notice of the increase. The increase will then apply to the credits that you have in your account.
Within the 14 day period you may choose to –
continue with the service subject to the increase; or
end the service in which case we will pay to you the value of any credits that may be left over in your account.
You may then use the service again by buying new credits.
Note: “charges” above refers to “price per credit” and not “credits per destinations”.
Expiry of credits. You must use up your credits within 120 days from the date on which you bought the credits. We may extend this period on a case-by-case basis in our sole discretion.
Refunds of credits. You can ask us to refund any unused credits within 7 days of buying those credits. However, we do not refund branding charges, licenses, monthly administration charges, and any other charges that you pay to us.
When you ask us to pay back credits we will –
- first deduct our charges for any messages sent;
- pay you the amount on the scale that corresponds with the equivalent to the amount of message units sent;
- keep 10% of the amount we refund you as an administration charge; and
- keep any costs we incur to refund you (eg bank costs).
Save as set out above, we refund no payments or charges.
Credit-based billing principles. We can charge variable charges per message sent through our system. We publish these variable charges on the Clickatell website from time to time. We charge the published rate when a message is sent through the system. However, you may select the bands or profiles which will apply to specific products, thereby defining the maximum charge per message.
You understand and agree that the number of credits to a specific destination network may change due to various factors, and that we may adjust these rates whenever we deem it necessary to do so.
If you have not selected a specific band or profile that supports delivery to a specific destination, you understand and agree that messages sent may not be delivered to such destinations. Conversely, if you have chosen specific bands which support a higher credit rate per message, and you are not aware that a specific route at the time of sending the message to us will be charged at the said higher rate, you understand and agree that you will be charged at whichever rate was at that stage applicable to the desired destination network or MSISDN number.
Profiles (routing profiles) are one of the mechanisms we allow some accounts to limit the maximum credit charge on their account. PLEASE NOTE: if a customer is allocated any profiles that were not available during registration – then the functionality of limiting credit charges through profiles may change. it is important that customers familiarise themselves with the the functionality of routing profiles. Customer support will be able to provide more info 24/7.
Interest. We may levy interest on any amounts that are not paid when due at a rate of 2% above the prime rate, calculated from due date to date of payment, both days inclusive. The prime rate is the publicly quoted basic rate of interest (expressed as a nominal annual compounded monthly in arrear rate) at which our bank from time to time lends on overdraft to its most favored corporate borrowers in the Republic of South Africa, compounded monthly in arrears and calculated on a 365 day year factor, irrespective of whether or not the year is a leap year. A certificate signed by any manager of our bank, whose qualification and authority need not be proved, setting out the prime rate shall constitute prima facie proof of the rate in question.
Currency. We charge in Rands (ZAR), the official currency of the Republic of South Africa, and United States Dollars (USD) and convert the amount to the relevant currency at the applicable conversion rate on the date of the transaction. The conversion may change the charge due to currency fluctuations. The final charge is the amount reflected on the credit card holder’s statement.
We reserve the right at any time to charge in any currency other than Rands or United States Dollars.
The following applies if, as part of a service, you earn a revenue share from any mobile network operator. If you breach any of these terms then, without prejudice to our rights under these terms or otherwise at law, we may retain any of your revenue share held by us at the time of the breach as a genuine pre-estimate of the damages suffered by us as a result of your breach.
If you breach any of these terms, then we may immediately, without prejudice to any of our other rights and without notice to you –
- claim payment of all outstanding amounts due to us;
- stop or suspend your use of any of the services;
- end the agreement; and/or
- claim damages from you.
In all cases, we may keep all amounts already paid by you and recover all our costs associated with your breach, including (without limitation) collection commission and attorney and client legal costs.
If this agreement ends or a service is suspended for any reason, you are responsible for any outstanding obligations including (without limitation) payment of any costs or charges that may arise in connection with such ending or suspension, and payment of all outstanding charges for use before the ending or suspension.
Your payment and other obligations under this agreement are not suspended or otherwise affected by a suspension of access to/or use of a service (in whole or in part) where the suspension arises from your failure to comply with the terms.
Upon ending and/or cancellation of a service or this agreement, for any reason you must immediately stop using the service and remove all our downloads on any computer, database, server (local or remote) in your possession or under your control.
We have no obligation to you after any termination or cancellation of a service or this agreement.
We (or the appropriate third party) retain all intellectual property to the services, the systems that provide the service and downloads.
You may not, directly or indirectly –
- sell, sub-license, lease, distribute or otherwise transfer any downloads to any third party;
- appropriate the downloads in whole or in part for whatever purpose;
- decompile, disassemble or reverse engineer the downloads, or reduce the downloads to any format other than the format in which they were delivered;
- create derivative works based on the downloads;
- incorporate the downloads into any other content for whatever purpose;
- remove any legal notices (copyright, trademark or other proprietary rights notices);
- reproduce, publish, perform, broadcast, make an adaptation of, sell, lease, offer or expose any copy of any content in respect of which we own the copyright.
- use the downloads for timesharing or service bureau purposes or otherwise for the benefit of a third party;
- frame any portion of the web pages that are part of the service.
You must comply with all national and international laws pertaining to intellectual property rights.
You keep ownership of any original content that you provide when you use a service, including any text, data, information, images, photographs, music, sound, video or any other material which you may upload, transmit or store when using the service.
Subject to the terms and South African law, for the duration of the agreement and the service, we grant you and individual, personal, non-exclusive and non-transferable license to use our downloads, in object code form only, and only in accordance with the applicable end user documentation, if any.
We may provide hyperlinks to websites that we do not control (target sites).
We don’t necessarily endorse, agree with or support the content, products and/or services of target sites.
By subscribing to or using a service, you agree that we may intercept, block, filter, read and monitor any communication you make to the extent allowed by law for the purpose of conducting our business and securing our systems.
For the purposes of this clause, “intercept” and “monitor” bear the meanings ascribed to these words in section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, No 70 of 2002.
You agree that the consent above satisfies the “writing” requirement as detailed in the ECT Act and the Regulation of Interception of Communications and Provision of Communication-related Information Act, No 70 of 2002.
As a customer of Clickatell, you agree to make yourself and your name available for use in publicity should you qualify as a winner for promotions or competitions. At all times, Clickatell will do its utmost to protect your privacy. While Clickatell protects all personal data entrusted to us, we reserve the right to use your first name and or last name pertaining to promotional or competition results.
Promotions are subject to ongoing review, and Clickatell reserves the right to terminate any promotion at any time without prior notice.
Only promotions specifically advertised by Clickatell, on either its website or by means of promotional offers, will be honored by Clickatell. Any promotional offer issued by any other party, including but not limited to affiliated persons or organizations, will not be recognized and are thus deemed invalid.
29. Governing law and Jurisdiction
If you are contracting with Clickatell, Inc., these terms are governed by and must be construed under the laws of the State of California and the Federal Laws of the United States of America.
If you are contracting with Clickatell Limited, these terms are governed by and must be construed under the laws of England and Wales.
If you are contracting with Clickatell (Pty) Ltd, these terms are governed by and must be construed under the laws of the Republic of South Africa.
All disputes, actions and other matters relating thereto are determined in accordance with the applicable law. You submit to the jurisdiction of the courts of California, England and Wales or the Republic of South Africa as applicable.
Whole agreement. The terms constitute the whole of the agreement between us and you relating to the matters dealt with herein. No undertaking, representation, warranty, guarantee, term or condition relating to the subject matter of the terms not incorporated therein will be binding on you or us. Any change or addition to the terms will only be valid if it is made by us under the section headed “Changes to terms” above.
Addresses. You select as your chosen address (domicile) for the purposes of receiving legal process and notices, the address furnished when you subscribed to or started using a service. We may send you any notices (other than legal process) by email. You will promptly tell us if your address changes. We select as our address for the purposes of receiving legal process and notices the physical address in respect of each Clickatell entity as detailed under the definition of “Clickatell” in the Definitions and Interpretation section above.
No waiver. Any waiver, indulgence, relaxation or extension of any of the terms will be effective only in the specific instance and for the purpose given. No failure or delay on our part in exercising any of our rights will constitute or be deemed to be a waiver. No single or partial exercise by us of any of our rights will preclude us from any other or further exercise thereof or the exercise of any other rights.
Provisions are severable. Each provision of the terms is severable from the other provisions. If any provision is found to be invalid or unenforceable, we may change it under the section headed “Changes to terms” above or remove it in its entirety. The remaining provisions of the terms will nevertheless remain binding.
No agency or authority. These terms create no contract of agency, partnership, joint venture, or employment between you and us. You have no authority to bind us.
Cession and delegation. You may not cede, assign or delegate your rights or obligations under these terms. We may cede, assign or delegate our rights and obligations under these terms without your consent.
This section applies if you are contracting with Clickatell (Pty) Ltd.
Subject to urgent or interim relief, all disputes arising in connection with the service and these terms must be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of Southern Africa (AFSA) (www.arbitration.co.za).
The parties must agree on an arbitrator, failing which AFSA must appoint an arbitrator.
The arbitration must be conducted in Cape Town, Republic of South Africa and in English.
The ruling of the arbitrator is final. The unsuccessful party must pay the legal costs of the successful party on a scale as between attorney and client.
This section applies if you are contracting with Clickatell (Pty) Ltd.
In this section, “data messages” means data messages as defined in the ECT Act.
Our full name and legal status: Clickatell (Proprietary) Limited, registration number 2000/013534/07, a private company duly incorporated in the Republic of South Africa
Our office bearers: marketing.dev/microsites/co.za//about_us.php
Our postal address: PO Box 4929, Tygervalley, 7536, Republic of South Africa
Our physical address, and address for receipt of legal service: 7th Floor, Manhattan Plaza, 100 Edward Street, Bellville, 7530 Republic of South Africa
Our telephone number: +27 21 910 7700
Our website address: marketing.dev/microsites/co.za/
Email address of the Clickatell website: email@example.com
Membership of self-regulatory or accreditation bodies: WASPA; GSM ; marketing.dev/microsites/co.za//company/affiliations.php
Codes of conduct to which we subscribe:
SMS Code: www.smscode.co.za
PhonepayPlus code of practice: www.phonepayplus.org.uk/publications/cop/default.asp
Price of services: Please go to marketing.dev/microsites/co.za/ and click on the link to the service that you want use. Please see the section headed “Charges and payment” above.
Manner of payment: You can pay by credit card or direct wire transfer – see marketing.dev/microsites/co.za//pricing/payment_methods.php
Terms that apply to any transaction: Please see all the terms above
Dispatch and delivery: Upon the conclusion of a transaction, a pop-up notice informs you of the applicable dispatch or delivery
The manner and period within which you may access and maintain a full record of transactions: We give you a full record of each transaction. Please print and/or save these records. We also give you transaction records on request for a limited period from the date of the transaction.
Our return, exchange and refund policy: Please see the section headed “Charges and payment” in the terms above.
Alternative dispute resolution: Please see the section headed “Disputes and arbitration” in the terms above. The website of the Arbitration Foundation of South Africa is located at www.arbitration.co.za
Duration of the agreement: The minimum duration of transactions and/or periods are detailed on the relevant additional terms.
Cooling-off period: You may return goods and/or services within 7 (seven) days as detailed in section 44 of the ECT Act and only if such goods or services are not detailed in section 42(2) of the ECT Act.
The information, goods and/or services advertised on the Clickatell website are not an offer, but merely an invitation to do business.
We are deemed to have received any message you sent only if and when we respond to your message, or when we acknowledge receipt. Notwithstanding section 23(b) of the ECT Act, we are not be deemed to have received a data message if that message was blocked, filtered and/or destroyed by our content filtering and virus security systems.
Data messages we address to you are deemed to be -
received by you as detailed in section 23(b) of the ECT Act;
sent from the location(s) as detailed in section 23(c) of the ECT Act; and
sent by you from within the geographical boundaries of the Republic of South Africa.
Electronic signatures, encryption and/or authentication are not required for valid electronic communications between you and us.
Subject to the provisions of sections 43(5) and 43(6) of the ECT Act and the requirements for a valid electronic invoice issued by the South African Revenue Service from time to time, if applicable, we are under no legal duty to encrypt any content or communications from and to you and are also under no legal duty to provide digital authentication of any pages on the Clickatell website.
This section applies if you are contracting with Clickatell (Pty) Ltd.
You can download our manual published in terms of the Promotion of Access to Information Act, 2000 from the Clickatell website.
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