Communicator General terms

PLEASE NOTE It is important that you read and understand all of our terms. However, there are a few key points that we want to highlight:

  • Contracting Clickatell company. Please visit our Who am I contracting with? page to check which Clickatell company you are contracting with.
  • Restrictions on use. In some countries there are legal restrictions that apply to electronic communications. It is your responsibility to ensure that your conduct is legal. By using our services you also agree to be bound by the Rules of Use.
  • Numbers. If Clickatell allocates a short code or long code (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. We may need to change or withdraw the number allocated to you from time to time. You must 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number allocation requirements that may be contained in our Terms as failure to do so may result in the number being withdrawn. We will not be liable for damages (including consequential or special damages) arising out of any change or re-assignment of a number and you waive any claims you may have as a result of a number change or re-assignment.
  • Delivery. During transmission, electronic communications may flow through the systems of several mobile networks and other aggregators (“the chain”) and you therefore agree that Clickatell may make use of third party service providers in the chain to deliver the service to you.Your electronic communication is considered to be delivered once it has been transmitted from our system to our next network service provider in the chain. An electronic communication sent by a mobile phone user is considered to be delivered when it is submitted from our system to you. We will try to ensure uninterrupted and continued use of our services; however this is largely dependent on the effective functioning of network service providers’ infrastructure, network coverage and the recipient’s mobile handset. Please read our disclaimers and limitations of liability (section 8).
  • 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.

 

  • ACCEPTANCE
  • If you accept these terms or use our services on behalf of your employer or another person, you confirm that you have the consent of your employer or that person to act on their behalf.
  • You may not accept these Terms or use our services if you are not of legal age to form a binding contract with us or if you are barred by the laws of any country to use our services.

Top of page

  • SERVICES
  • Our services. We provide various services which are described in the Service specific terms. The Service specific terms form part of our agreement with you.
  • Software licence. We may make software available to you to enable you to use some of our services. We give you a personal, worldwide, royalty free, non-assignable and non-exclusive license to use the software provided to you by us as part of our services. This licence is for the sole purpose of enabling you to use and enjoy the benefit of our services in the manner permitted by these Terms. You may not copy, modify, distribute, sell or lease our software, nor may you reverse engineer or attempt to extract the source code of that software, unless you have our written permission.
  • Numbers. We are the customer on record for all short codes, long codes and service codes (“Numbers”) provided as part of the services and own any Numbers assigned to your account, unless we have entered into a different agreement with you in this regard. If we are the customer on record, you will have use of the Numbers that are provided as part of the services only until the end of this contract. When this contract ends, Numbers may be re-assigned to another customer. We may need to change the Numbers assigned to your account from time to time. You must ensure that you comply with any number allocation requirements that may be contained in our Terms as failure to do so may result in the number being withdrawn. We will not be liable for damages (including consequential or special damages) arising out of any change or re-assignment of a number and you waive any claims you may have as a result of a number change or re-assignment.
  • Emergency services. We do NOT allow you to access any 911 or similar emergency services. The services are not intended to replace any primary phone service, such as a traditional landline or mobile phone that may be used to contact emergency services.

Top of page

  • PAYMENT
  • Prices. Clickatell will charge you for our services at the prices published on our website or the prices agreed to in our separate contract with you. We reserve the right to change prices from time to time without any notice to you. We will publish the changes on our website.
  • Billing. You will pay upfront for any of our services that you use. You agree to be invoiced electronically. You can view your transaction history by logging into your account.
  • Currency. The currency in which we invoice you depends on the Clickatell company you contract with, please refer to our Who am I Contracting With? page. In some instances you can choose the currency on our website when making payment. We convert currencies on the date of invoice using exchange rates published by a financial institution of our choice.
  • Taxes and deductions. Our prices exclude Value Added Tax and all other applicable taxes, such as withholding tax. You will pay all amounts due to us without set-off or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you must notify us. You must also provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
  • Bank charges. You are responsible for payment of all bank and finance charges. Please ensure that the amount received in our bank account, after deductions, is the full amount you owe us.
  • Payment method. You may pay us via credit card or by direct deposit in accordance with the information provided on our website payment pages. We make use of secure third party payment gateways as disclosed on our website and we are not liable for any losses or damages suffered due to the use of these gateways.
  • Credit card verification fee. When you load a new credit card onto our payment system, our third party gateways may charge you a card verification deposit. This deposit is refundable to you as soon as your card has been verified.
  • 3D Secure. Clickatell’s payment gateway vendors, card issuers and your bank may require us to implement 3D Secure to protect you against unauthorised use of your credit card. You may be required to complete a once-off registration if you use a card from a participating card issuer and if your bank is participating in the 3D Secure program. Once registered, you will receive a one-time PIN (“OTP”) via SMS every time you make an online purchase with your credit card, and the OTP will only be valid for that transaction. Please note that this service is provided by and on request of your bank, so if you experience any problems relating to 3D Secure, please contact your bank directly.
  • Card verification. You will only be allowed to pay for our services with a card that was successfully verified by our third party gateway or ourselves. We reserve the right to refuse payment from cards that fail our verification requirements.
  • Billing disputes. Billing disputes must be initiated within 90 days of invoice, by contacting us at accounts@clickatell.com. Refunds will be made in the form of a credit to your account and in no event shall there be any cash refunds. Disputes which are not initiated within 90 days will not be entitled to any refunds.
  • Processing fee. Clickatell may, at its own discretion, assist you to convert your account or to rectify a mistake on your account (e.g. incorrect amount paid / incorrect product selection etc.). Clickatell is under no obligation to process any refund payments. If we agree to assist you, we will charge a processing fee to your account. The fee will be the greater of either 10 EURO (or the equivalent on date of transaction in the currency of your account), or 10% of the value of the transaction.

Top of page

  • SUSPENSION
  • reason for suspension.We may suspend all or some of our services or licences to you:
    • if you fail to pay any fees due to us;
    • for scheduled downtime to permit us to conduct maintenance or make modifications to any service;
    • if it is necessary due to emergency system repair or a system security breach; or
    • if you use the services in contravention of these terms, applicable law, regulation or industry code of conduct;
    • if we are required to do so by law or if continued use of the service will in our view constitute a breach of applicable law; or
    • in the event of it becoming impossible for us to deliver services to you due to circumstances beyond our control.
  • Reinstatement.We will restore service once we are satisfied that the cause of suspension no longer exists.

Top of page

  • TERMINATION
  • Notice. You may end this contract by notifying us via email at legal@clickatell.com.
  • Reason. We may end this contract immediately on notice to you, if:
    • you fail to pay any amount due to us;
    • you commit a breach of this contract;
    • you commit an act of insolvency, are placed in provisional or final liquidation or are placed under judicial management;
    • you take steps to deregister yourself or are deregistered;
    • any of our suppliers stop their services to us;
    • a governmental prohibition or law prevents us from continuing our services to you.
  • Consequences. When this contract ends:
    • you must immediately stop accessing our services and systems;
    • you must immediately pay all amounts due to us;
    • you will forfeit any unused credit on your account, except for payments received by us within 7 days prior to termination; and
    • all licences and rights granted under these Terms will terminate immediately.

 

Top of page

 

  • ACCOUNT, PASSWORDS AND SECURITY
  • Information. In order to provide our services, we require certain information. You must ensure that the information is complete and accurate. We may suspend or terminate any service if you give information that is not complete and accurate. You agree to update your information if any of your information changes, including but not limited to information relating to individuals as authorised users of the service and you indemnify Clickatell against any liability that may arise as a result of your failure to provide complete and accurate information or update information where applicable. You must immediately notify us if any of your information changes.
  • User name and password. We will give you or ask you to choose a user name or customer ID and password for each account. We may change, cancel or suspend your password and will notify you.
  • Security. You:
    • must keep your username, customer ID and password confidential;
    • must not circumvent, or attempt to circumvent, our user authentication systems;
    • must tell us immediately if there is any unauthorized use of your account or any other breach of security;
    • are entirely responsible for all payments and any activities that occur on your account;
    • are liable for any damage, loss or costs that we or any third party sustain as a result of any of your actions, or any actions of a third party using your password, account name or account information; and
    • remain responsible for all information sent and received through the service: and
    • indemnify us against any claim from any use of your password, account name or account information by a third party or as a result of your violation of this section.

 

Top of page

 

  • NOTICES
  • Notice to you. Notices under these Terms will be provided to you via a notification message displayed on your account page or via the latest email address provided to us when registering or updating your account. It is your responsibility to keep your email address current.
  • Notice to Clickatell. Notices under these Terms must be sent to us via email at legal@clickatell.com or delivered to 7th Floor Manhattan Plaza, 100 Edward Street, Bellville, 7530, South Africa.
  • PAIA. You can download our manual published in terms of the South African Promotion of Access to Information Act, 2000 from here.

 

Top of page

 

  • DISCLAMERS AND LIMITATION OF LIABILITY
  • No warranties. Our services are not specifically designed to meet your individual requirements. We do not make any warranties or representations, other than those specifically contained in these Terms, regarding our services or the systems and technology we use to provide the services. We do not warrant that the content and technology available from our website are free from errors or omissions or that the services will be uninterrupted and error free.
  • No encryption. Data submitted to our systems is transmitted in an unencrypted format. We do not guarantee that data cannot be intercepted by others.
  • Limited number look-up. We will try to provide number look-up services where available. However, number look-up is not available in all territories. In some countries we may rely on information provided by others in order to determine the correct mobile network to which a mobile number is connected. Due to number portability between mobile networks, we do not guarantee that number look-up will always be available or correct. We do not accept any liability resulting from number portability, the inability to do number-lookups, or incorrect number look-up. We may charge you for messages processed even if transmission to the subscriber failed due to porting of the subscriber’s mobile number.
  • Network coverage. We regularly update our Coverage and Carrier Cost pages for our services on our website. These tables specify all the mobile networks to which we can transmit our services. It is your responsibility to use our services only for transmission to mobile numbers connected to mobile networks specified on our Coverage and Carrier Cost page. If you attempt to send data or communication to mobile networks not covered, we may charge you even if transmission fails. We do not accept any liability resulting from a failed transmission.
  • Third party links. Any links to third party sites are provided for your convenience, and such sites are neither owned nor operated by us. We have no control over these linked sites, is not responsible for the content of these sites, make no representations or warranties with respect to these linked sites, and shall not be liable for any damages or injury arising from the content of these linked sites. You view and use any third party sites at your sole discretion and risk.
  • Exclusion of all liability. We do not accept liability for any damages or losses arising out of or related to the use, inability to use or unauthorised use of the services. This includes any direct, indirect, special, consequential, punitive or incidental damages, whether such damages or losses arise in contract, delict (tort), under statute, in equity, at law or otherwise.
  • Indemnity. You agree to hold Clickatell and our suppliers harmless and to indemnify Clickatell, our associated companies, our suppliers and our respective officers, directors, employees and agents fully against:
    • any claim by any third party resulting from any systems failure, service delivery failure, corruption, interruption or termination of services
    • all damages, awards, penalties or legal costs claimed or imposed by any party as a result of any action, commission or omission by you that constitutes a breach or contravention of these terms, any applicable legislation, regulations, industry code of conduct or mobile network code of practice or acceptable usage policy.
  • Compliance with legislation. We do not modify the content of electronic communications sent or received through our systems or the selection of the addresses of the recipients. We do not accept any liability for any content transmitted and full responsibility for content shall rest on you. You must observe all relevant legislation and regulations applicable in your jurisdiction and in the jurisdiction of all persons to whom you direct communications when using our services. By using our services you also agree to be bound by the Rules of Use.
  • Defending complaints from regulatory authorities. You shall be responsible for answering and defending any complaints that we receive from any relevant regulatory body resulting from your use of any of our services. We will forward any complaints to you as soon as practical. You must follow the applicable complaint procedures and respond to each complaint within the timeframes specified by the relevant regulatory body and must forward a copy of your response to us immediately. You will be liable for any fines or penalties imposed by any regulatory body on you, us or any of our associated companies due to your contravention of these Terms.

 

Top of page

 

  • PRIVACY
  • Privacy Policy. We will process your personal information in accordance with our Privacy notice.
  • Interception and disclosure. We may intercept and disclose any data submitted to our systems in order to protect the efficient operation of our systems or to comply with requests from competent authorities or court orders, or to compile, analyse and publish statistical data. You agree that subject to applicable laws we may intercept, monitor filter, lock, read, delete, disclose, and use data submitted to our systems or website.
  • Disclosure to recipients. The recipient of an electronic communication has the right to know the identity of the sender and we will disclose this on the recipient’s request.
  • No liability for disclosure. Neither we nor our suppliers will be liable to you or anybody else for any damages or losses suffered due to these actions.
  • Data collection. You explicitly consent that we may collect and disclose data relating to your use of our services and website for the purpose of analysis, reporting, service quality assessment and research.

 

Top of page

 

  • INTERLLECTUAL PROPERTY
  • IP rights. All content, trademarks and data on our website, including software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to us, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to you in these Terms, all other intellectual property rights on this website are expressly reserved.
  • License. We may grant you an individual, personal, non-exclusive and non-transferable license ("the License") to use our proprietary software or application service, in object code form only, and only in accordance with the applicable SMS Service and other documentation, if any, and only in conjunction with the relevant services. You may not reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of our software; modify, translate, or create derivative works based on the software or application; copy, rent, lease, distribute, assign, or otherwise transfer rights to the software or application; or remove any proprietary notices or labels with regard to our services. We retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights in it. These Licenses terminate when our contract with you ends and you must destroy and stop using all of our software and applications in your possession. The software is provided and applications are offered "as is" and subject to the service warranty disclaimers and limitations of liability found elsewhere in these Terms. It is your responsibility to test the services before entering into this contract.
  • Website Content. Content from our website may not be used or exploited for any commercial and non-private purposes without our prior written consent.

 

Top of page

 

  • GOVERNING LAW
  • The terms will be governed by the laws of the following countries, depending on which Clickatell company you are contracting with:
    Clickatell Company Governing law
    Clickatell (Pty) Ltd Laws of the Republic of South Africa
    Clickatell Limited Laws of England and Wales
    Clickatell Inc. U.S. Federal Law and the Laws of the State of California (excluding conflict of laws rules)
    Clickatell Nigeria Limited Laws of the Federal Republic of Nigeria

 

Top of page

 

  • MISCELLANEOUS PROVISIONS
  • Conflict terms. If there is a conflict between these General terms and any SMS Service, the SMS Service will apply.
  • Severability. If it turns out that a particular term is not enforceable, this will not affect any other terms.
  • Waivers. If you do not comply with these Terms, and we do not take action immediately, this does not mean that you are released from any of your obligations.
  • Successors and Assignees. This contract will be binding upon the parties and their respective successors and assignees.
  • No Agency or third party beneficiary rights. These Terms do not create any partnership, contract of employment, agency, joint venture or franchise relationship between us or any third party beneficiary rights.
  • WASPA Membership. Clickatell is a member of WASPA and is bound by the WASPA code of Conduct. Customers have the right to approach WASPA to lodge a complaint in accordance with the WASPA complaints procedure. Clickatell may be required to share information relating to a service or a customer with WASPA for the purpose of resolving a complaint. WASPA web site: www.waspa.org.za.
  • ISPA Membership. We are a proud member of ISPA and uphold the ISPA code of Conduct which is available at http://ispa.org.za/code-of-conduct/
  • In terms of section 75 of the Electronic Communications and Transactions Act ("the Act") Clickatell has designated the Internet Service Providers' Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the Act.

Internet Service Providers' Association (ISPA)
             Address: PO Box 518
             Noordwyk
             1687
             Telephone: 010 500 1200
             Email: takedown@ispa.org.za