This contract explains the rules of our relationship. Make sure that you read it carefully to avoid any surprises later. Because we know that people hate reading contracts, we have given you an easy to read (hopefully!) paragraph on the left, but remember that the other bits are binding too, so if you have any questions, please contact firstname.lastname@example.org.
Every time we provide services to you, this contract will apply, unless we explicitly and in writing agree to something else.
Just a heads up, the clauses which are highlighted are particularly important.
The last time these terms where changed? November 2016.
1.1 Clickatell is a group of companies, so things can get a little complicated. The best way of figuring out who is who is to look at where you are.
1.2 If your billing address is in:
1.2.1 the European Union (including the United Kingdom for the time being), you are contracting with Clickatell Limited, a company incorporated in England and Wales;
1.2.2 Africa or the Middle East you are contracting with Clickatell (Pty) Ltd, a company in South Africa;
1.2.3 the Americas or the Asia Pacific Region, you are contracting with Clickatell Inc., a Delaware corporation.
1.3 Our parent company is Clickatell Corporation, a Delaware corporation.
1.4 When we use the words ‘we’, ‘us’, ‘our’ or ‘Clickatell’ we are referring to the company with whom you are contracting (unless we indicate otherwise) as well as its affiliates, suppliers, officers, directors, employees, agents, mascots etc. Rather obvious, but lawyers like a good definition.
1.5 You can find more information about the Group or the particular company you are contracting with here.
1.6 We don’t need to tell you who you are. That would just be weird. This contract obviously binds you (and your affiliates, suppliers, officers, directors, employees, agents, mascots etc.) and any users of your account.
1.7 It also binds your successors and assignees. If you do want to assign these terms, you have to assign this contract (transfer it to someone else), you need to give us prior written notice and we have the right to politely decline.
2.1 This contract covers all of the services delivered via our Connect platform.
2.2 So, this is a contract for services. It does not create a partnership, contract of employment, agency, joint venture, franchise, sale of soul contract or anything like that between us or any third party.
2.3 The short version is that this contract covers all of the services which we offer.
2.4 For the lawyers, the ‘services’ referred to in this contract include all of our programs, features, functions and report formats, instructions, code samples, on-line help files and technical documentation, our website, account portal, technical support as well as any upgrades or updates to any of these, made generally available by us, and includes any of our SDKs, APIs or software we provide to you in connection with your use of our services.
2.5 The features and functions of our services will change over time. It is your responsibility to make sure that the connection to our platform is correctly configured for successful integration.
2.6 We always try to make sure that the changes are ‘backwards compatible’. For the non-geeks, this means that we will try to make sure that you can continue to use our services without having to reconfigure your platform (or other changes) to ensure successful integration.
2.7 In those isolated cases where the changes are not ‘backwards compatible’ we will try to give you at least 30 days’ notice so you can get ready for the changes.
3.1 In order to use our services you must accept these terms by clicking the ‘I accept’ button during our application process. Once you have clicked ‘I accept’, a binding contract is created.
3.3 This will not always apply. If we negotiated a separate contract with you, that contract will apply, but only if it is in writing and signed
3.4 This is our entire contract. No warranties, representations or other terms and conditions aside from those mentioned in this contract will form part of the contract unless they are made in writing and we have consented to them.
3.5 From time to time, we will have to make changes to our contract. The ‘new’ contract will be in force from the date published at the top of this contract.
3.6 If you continue to use our services after the contract changed, it means that you accept the changes. We encourage you to check the contract regularly.
3.7 This contract cannot be changed or waived through conduct.
3.8 For instance, just because we don’t take action immediately when you breach the contract, does not mean that you have been released from any of your obligations.
3.9 If any term turns out to be unenforceable for some reason or another it will be severed from our contract. It will not affect the enforceability of any of the other terms of the contract.
3.10 Which country’s laws govern this contract? Good question. It is a little complicated, but here it is:
3.10.1 If you have contracted with Clickatell (Pty) Ltd (if your billing address is in Africa or the Middle East), the laws of South Africa will apply.
3.10.2 If you have contracted with Clickatell Limited (if your billing address is in the United Kingdom or Europe), the laws of England and Wales will apply.
3.10.3 If you have contracted with Clickatell, Inc. (if your billing address is in the Americas or the Asia Pacific Region), the laws of the state of California will apply, excluding the conflict of law rules.
4.1 Until you create an account, your access to our services will be limited to what is available to the public.
4.2 When you create an account, we will ask you to provide your name, phone number, e-mail address and to create a password. We will also ask you to verify your account through a hyperlink which will be sent to you via e-mail.
4.3 You will be asked to allocate a billing owner and an account owner for your account. You will also be allowed to add (and remove) other users to your account in order to give them rights to transact on or view your account.
4.4 You must provide accurate and complete information about yourself and to inform us if any of your information changes.
4.5 If your billing address changes you must update it within 15 days of the change.
4.6 The use of your account (and by extension our services) as subject to our Rules of use . We wish we didn’t need rules, but people do crazy things.
4.7 When we say ‘affiliate’ we mean an entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, employee, dominatrix, pets etc.
4.8 Your affiliates may order services directly from us on your account. Their use of our services is subject to this contract and you are responsible for their activity on your account.
5.1 The short version is that you can use our services on a non-exclusive basis. This means that other people can also use our services.
5.2 Here is the long version (for the benefit of the lawyers): We give you a personal, worldwide, royalty free, non-assignable and non-exclusive licence to use the software we make available to you as part of our service. 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.
5.3 This is the only licence we are granting you. We don’t believe in implied licences.
5.4 You must use our services in line with this contract, our Rules of use and any applicable laws.
5.5 We retain exclusive ownership of all right, title and interest in and to the services, including all intellectual property rights.
5.6 You must 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.
6.1 We cannot guarantee that our services will be up and running 100% of the time – although we will try! Sometimes, things will go wrong despite our best efforts.
6.2 For instance, sometimes we will need to suspend our services to perform scheduled maintenance or to make modifications. In these cases, we will let you in on our plans before suspending the service.
6.3 In the event of an emergency (like an emergency system repair or a system security breach), we may have to suspend our services without warning. We really hope that this will never happen and we will do our best to avoid it, but it is still within the realm of possibility.
6.4 For the lawyers and other lovers of Latin, this is a vis major clause. If you prefer French, force majeure. If you prefer high drama, Act of God.
6.5 We won’t hold each other responsible if there is a failure or delay in the performance of this contract as a result of a cause that is beyond our control (and we were not negligent) such as the action or inaction of governmental, civil or military authority; fire; strike, lockout or other labour dispute; flood; terrorist act; war; riot; theft; zombie apocalypse; earthquake or any other natural, unnatural or supernatural disaster.
6.6 We will take all reasonable steps to limit the effects and consequences of any disaster.
7.1 Your biggest responsibility is to pay us for our services. You can find out what that means in our Payment terms. It is part of our contract.
7.2 You are responsible for everything that happens on your account(s), even if it has not been authorised by you.
7.3 You must ensure that all the users on your account are familiar with these terms of service and, in particular, our Rules of use.
7.4 You must take steps to prevent unauthorised use of your account. For instance, you must ensure that your username and password is secure.
7.5 You must let us know immediately if unauthorised use or access does occur.
7.6 ‘Customer data’ refers to the information which you made available to us during the course of the use of our services. This includes your and your account users’ personal information (name, contact details, billing address etc.), billing records, call or messaging logs, traffic routing information and the content of communications sent through or integrated with our services (e.g. the content of your SMSs, e-mails or chats).
7.7 You must ensure that:
7.7.1 your customer data complies with our Rules of use, any guidance posted on our website from time to time and any applicable laws;
7.7.2 your customer data does not violate any third party rights; and that
7.7.3 we are entitled to process the customer data.
7.8 We both undertake to comply with all laws that may be applicable to our activities in terms of this contract. This includes any privacy or data protection laws.
7.9 It is your responsibility to find out what those laws are (they might be laws of a different country) and how to comply with them. We can’t help you there, we are not lawyers.
7.10 You are responsible to ensure that you have the infrastructure and resources in place to access our services. This could include things like an internet connection, VPN and an IT guy.
7.11 You are responsible for answering and defending any complaints we receive relating to your use of our services (e.g. complaints from consumers or a regulatory body).
7.12 We will forward any complaints to you as soon as possible.
7.13 You are required to:
7.13.1 follow the applicable complaint procedures and to respond to each complaint within the time frames specified by us or any regulatory body;
7.13.2 forward a copy of your response to us immediately;
7.13.3 comply with any other request from us for information relating to the complaint.
7.14 You will be liable for any fines or penalties or other awards imposed by any regulatory body or a court on you, us or any of our affiliates which result from a breach of this contract or any applicable laws.
8.1 We acknowledge that your customer data can contain information that is personal.
8.2 Our Privacy notice explains how we collect, store and use your customer data. It is part of this contract, so please make sure to read it.
8.3 You agree that we can access or disclose customer data (including the content of communications) if:
8.3.1 we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request;
8.3.2 to enforce our agreements and policies;
8.3.3 to protect the security or integrity of our services and products;
8.3.4 to protect ourselves, our other customers, or the public from harm or illegal activities; and
8.3.5 to respond to an emergency which we believe requires us to disclose data to assist in preventing a death or serious bodily injury.
8.4 We do not undertake to store your customer data. In fact, periodically we delete customer data.
8.5 This means that we don’t undertake to store any of your customer data and that we are not liable for any loss or harm which flows from the loss or deletion of your customer data.
9.1 Our services, including any software we may provide in connection with it, may be subject to applicable U.S. export control laws and economic sanctions regulations.
9.2 In receiving this software or our services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and our services, and to the extent consistent with these terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of our services.
9.3 These laws include restrictions on destinations and end use. Without limitation, you may not transfer any software or other aspect of our service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List).
10.1 We both grant each other the right to use and display each other’s name and logo on our websites and in other promotional material, but only in connection with the services.
10.2 You may revoke our right to use your name and logo by sending a notice to email@example.com.
10.3 We will both only use each other’s name and logo in accordance with each other’s usage guidelines. You may use the images and logos available in our Media Library .
10.4 If we use each other’s names and logos, we:
10.4.1 will not use, register or take other action, except to the extent allowed in advance in writing;
10.4.2 will always use the current, unmodified names and logos;
10.4.3 will not misrepresent the relationship between us;
10.4.4 will not present itself as an affiliate of the other.
10.5 If you provide any feedback to us, we will own the feedback and may use and modify the feedback without any restriction or payment to you. For instance, if you send us an e-mail to tell us how wonderful we are, we can use a shortened version of it on our website.
10.6 If we use each other’s names and logos, we:
10.6.1 will not use, register or take other action, except to the extent allowed in advance in writing;
10.6.2 will always use the current, unmodified names and logos;
10.6.3 will not misrepresent the relationship between us;
10.6.4 will not present itself as an affiliate of the other.
10.7 If you provide any feedback to us, we will own the feedback and may use and modify the feedback without any restriction or payment to you. For instance, if you send us an e-mail to tell us how wonderful we are, we can use a shortened version of it on our website.
11.1 When we refer to ‘confidential information’ we mean any information or data, regardless of whether it is in tangible form, disclosed by either party of us to the other that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.
11.2 It includes but is not limited to trade secrets, know-how, operating procedures, business concepts, customer lists, marketing campaigns, merchandise lists, both current and planned, computer software and training, price lists and price structures and promotional material.
11.3 Confidential information does not include information which:
11.3.1 is publicly available through no fault of the receiving party;
11.3.2 was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party;
11.3.3 was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or
11.3.4 is independently developed by the receiving party without use of reference to the disclosing party’s confidential information.
11.4 Confidential information is valuable to us and to you.
11.5 It is extremely important that we do not disclose confidential information. It should only be disclosed to those employees, representatives, affiliates, actual or potential investors or subcontractors who have a need to know and are legally bound to keep such information confidential in terms of this contract.
11.6 If we have to disclose the information, we have to obtain written permission.
11.7 We must take reasonable steps to protect confidential information.
11.8 If confidential information is disclosed or we suspect that it was disclosed, we will notify each other immediately.
11.9 A disclosure of confidential information can cause massive damage to both parties and will be considered a material breach of this contract.
11.10 In the event of the actual or threatened breach of this section, we will be entitled to take legal action, including a claim for damages as well as injunctive relief (such as an interdict or ‘gag order’).
12.1 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.
12.2 We are obviously committed to delivering high quality 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.
12.3 We are just a conduit in the transmission, routing, and provision of the services. We perform the services in an automatic manner without any material modification to the content or selection of the addresses of the material being sent or received.
12.4 Our liability for direct damages, costs or other liabilities resulting from our provision of the services is capped at 10,000 USD, regardless of the source of the liability.
12.5 We are not liable for any indirect, special, incidental, consequential or punitive damages (or whatever indirect damages are called wherever in the world) regardless of whether it is based on delict (tort), contract or another legal basis.
12.6 This includes (but is not limited to) damages for loss of goodwill, harm to reputation, lost profits, lost sales or business, work stoppage, computer failure or malfunction, lost data, or for any and all other damages and losses even if we had been advised, knew or should have known of the possibility of such damages.
12.7 You will be held responsible* for any claims, demands, causes of action, damages, legal and other costs, expenses, penalties, losses or liabilities (and other synonyms for ‘any bad things that could possibly happen’) resulting from third party claims about:
12.7.1 any systems failure, service delivery failure, corruption, interruption or termination of services;
12.7.2 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 our Rules of use; and
12.7.3 your use of our services or your customer data infringing or misappropriating any third party intellectual property right.
*For the lawyers: You indemnify us and hold us harmless blah blah blah…
12.8 Customer data is transmitted in an unencrypted format, unless you use our encryption API*. Even then, we cannot guarantee that it cannot be intercepted by others.
*G(r)eek for Application Program Interface.
12.9 The services are not intended to replace any primary phone service, such as a traditional landline or mobile phone.
12.10 We do not allow you to access any 911 or similar emergency services. Our services simply do not support emergency calls or SMS messages.
12.11 We are not responsible for any claim, damage, or loss (and, for the lawyers, you will hold us harmless against any and all such claims) arising from the inability to use our services to contact emergency services.
12.12 We are not liable for any loss or harm (including the integrity and quality of your data) which flows from the unauthorised use of your account(s). You are responsible to take steps to limit the unauthorised use of your account.
13.1 You may terminate our services at any time by notifying us via e-mail at firstname.lastname@example.org.
13.2 Some services do require a notice period to terminate. You will find these notice periods in the service specific terms.
13.3 If we are notified of or suspect unauthorised access or use of your account or have another security concern, we may have to temporarily suspend your access to your account to assess and contain the situation.
13.4 We may terminate this contract immediately or suspend our services to you by giving you notice if:
13.4.1 you fail to pay any amount due to us;
13.4.2 you breach this contract;
13.4.3 you commit an act of insolvency, are placed in provisional or final liquidation or are placed under judicial management;
13.4.4 you take steps to deregister yourself or are deregistered;
13.4.5 there is reason to believe that your use of our services or the use of your account is fraudulent or it is negatively impacting the operating capability of our services;
13.4.6 we determine, in our own discretion, that providing our services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide our services.
13.5 When our contract ends:
13.5.1 you must immediately stop using our services;
13.5.2 you must immediately pay all amounts due to us;
13.5.3 you will forfeit any unused funds in your account;
13.5.4 all licenses and rights granted under this contract will terminate immediately;
13.5.5 you must destroy all copies of our software, products and confidential information in your possession.
13.6 Even after the contract is terminated, some of the terms will linger:
13.6.1 clause 5 (intellectual property stuff);
13.6.2 clause 7 (your responsibilities) ;
13.6.3 clause 8 (how we use your customer data);
13.6.4 clause 10 (use of names, logos and feedback);
13.6.5 clause 11 (confidential information);
13.6.6 clause 12 (the limits of our responsibility); and
13.6.7 clause 13 (this one).