Touch

These terms of service (“Terms of Service” or “Terms”) constitute an agreement between the person or entity agreeing to these Terms of Service (“the Customer” or “you”) and the applicable Clickatell contracting entity (collectively, “Clickatell” or “us” or “we”) regarding your use of Clickatell’s Touch Go application and related services (the “Service”). By accessing or using the Service, including browsing any Clickatell website or accessing the Touch Go application, you accept and agree to these Terms of Service and Clickatell’s Privacy Policy, which is incorporated into these Terms by reference.

You warrant that you are not prohibited from receiving products of U.S. origin, including services or software. You also warrant that you are not under the age of 18 and that, where the Customer is a juristic person, you are duly authorized to bind the Customer to these Terms.

If at any point you do not agree to any portion of the then-current version of our Terms of Service, the Clickatell Privacy Policy, or any other Clickatell policy, rules, or codes of conduct relating to your use of the Service, your license to use the Service shall immediately terminate and you must immediately stop using the Service.

1 License And Limitations

1.1 Limited License

We grant you a license to use the Service, subject to certain limitations.

Subject to your agreement and continuing compliance with these Terms and any other relevant Clickatell policies, Clickatell grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in these Terms, to access and use the Service.

1.2 License Limitations

Your use of the Service is subject to the limits set out here.

Any use of the Service in violation of these license limitations is strictly prohibited and can result in the immediate revocation of your limited license granted in these Terms and may subject you to liability for violations of law and these Terms. Any attempt by you to disrupt or interfere with the Service, including undermining or manipulating the legitimate operation of any application, is a violation of these Terms and may be a violation of law. You agree that you will not, under any circumstances, do any of the following:
1.2.1 use, design, or assist in the use or design of cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Service;

1.2.2 modify or cause to be modified any files that are a part of the Service;

1.2.3 disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service; or (2) the enjoyment of the Service by any other person;

1.2.4 institute, assist, or become involved in any type of attack on the Service, including but not limited to distribution of a virus, denial-of-service attacks, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;

1.2.5 attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by Clickatell, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;

1.2.6 engage in any act that Clickatell deems to conflict with the spirit or intent of the Service, including, but not limited to, circumventing or manipulating these Terms, our application rules, application mechanics or policies;

1.2.7 improperly use Clickatell's support services;

1.2.8 use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;

1.2.9 use the Service to transmit any unsolicited communications to a third party, i.e. send any communications to a third party without the express consent of such third party, and you will ensure that appropriate mechanisms exist to enable third parties to withdraw or cancel such consent at any time, whereupon you will cease to transmit the relevant communications to such third parties;

1.2.10 use or knowingly allow others to use the Service for any objectionable, offensive, improper, immoral or unlawful purpose;

1.2.11 attempt to, or harass, abuse or harm, or advocate or incite harassment, abuse or harm of another person or group, including Clickatell employees;

1.2.12 make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including but not limited to a Clickatell employee;

1.2.13 use any unauthorized third-party software that accesses, intercepts, “mines,” or otherwise collects information from or through the Service or that is in transit from or to the Service, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Service to store information about Clickatell Touch Go application elements or environment. Clickatell may, in its sole and absolute discretion, allow the use of certain third-party user interfaces;

1.2.14 intercept or observe any proprietary communications protocol used by a user, client, server or the Service, whether using a network analyzer, packet sniffer, or other device;

1.2.15 take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;

1.2.16 bypass any robot exclusion headers or other measures that are intended to restrict access to the Service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;

1.2.17 use, facilitate, create, or maintain any unauthorized connection to the Service, including but not limited to any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service or any connection using programs, tools, or software not expressly approved in writing by Clickatell;

1.2.18 except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Clickatell;

1.2.19 copy, modify or distribute rights or content from any Clickatell site or application, or Clickatell's copyrights or trademarks, or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;

1.2.20 submit the personal information of any person to Clickatell or any third party unless you have obtained the necessary prior consent of that person to process and allow Clickatell or any such third party to process such personal information;

1.2.21 upload or transmit or attempt to upload or transmit, without Clickatell's express permission, any material that acts as a passive or active information collection or transmission mechanism;

1.2.22 fail to monitor your account to restrict or deny (as the case may be, depending on the applicable law in the relevant territory) use of the Service by minors (you accept full responsibility for any unauthorized use of the Service by minors in connection with or by means of your account);

1.2.23 have an account or use the Service if you have previously been removed by Clickatell or previously been banned from any Clickatell application;

1.2.24 use the Service if you are located in a country embargoed by the United States, or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals, nor will you use the Service to engage and/or transact with any party located in any such embargoed country or who is on the U.S. Treasury Department’s list of Specially Designated Nationals;

1.2.25 sublicense, rent, lease, sell, trade or otherwise transfer your account to a third party, without Clickatell's written permission; or

1.2.26 access or use an account that has been sublicensed, rented, leased, sold, traded or otherwise transferred from the original account creator, without Clickatell's written permission.

1.3 Username and Password

You must protect your Login Information.

You are responsible for anything that happens through your account.

During the account creation process, you may be assigned a username and be required to select a password (“Login Information”). The following rules govern the security of your Login Information: (a) you agree not to share the account or the Login Information, let anyone else access the account, or do anything else that might jeopardize the security of the account; (b) in the event you become aware of or suspect any breach of security, including but not limited to any loss, theft, or unauthorized disclosure of the Login Information, you agree to immediately notify Clickatell and modify your password; (c) you are solely responsible for maintaining the confidentiality of the Login Information and you agree to be responsible for all uses of the Login Information, whether or not authorized by you; and (d) you are responsible for anything that happens through the account. It is your responsibility to ensure that whoever has authorized access to the account is aware of these Terms. We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.

1.4 Free Service

Our free Service has limited features.

Your right to access and use our free Service is limited to a single seat and you accept that the features of the free Service may be limited.

1.5 Cyber-attacks

We cannot protect you against any form of cyber-attacks.

You must protect yourself.

Our system does not protect you against or block any cyber-attacks, including but not limited to the distribution of viruses, denial-of-service attacks, or other attempts to disrupt the Service, your system or any other person’s use or enjoyment of the Service. You are responsible to take whatever steps necessary to protect your system and the account through which you access and use the Service against any such attacks.

1.6 Web Chat Widget

The webchat widget may malfunction if you attempt to modify any scripts or code snippets.

You agree that you will not modify any scripts or code snippets provided by Clickatell to add the webchat widget to your website in any way and you acknowledge that doing so may cause the widget to malfunction.

1.7 Development Work and Professional Services

We do not provide any development work or professional services.

No development work or professional services will be provided by Clickatell in connection with the Service.

2 User Content

2.1 User Content

What is “User Content”?

“User Content” means any communications, images, sounds, and all the material, data and information that you upload or transmit through the Service, or that other users upload or transmit, including but not limited to any chat text.

2.2 Screening

We are not responsible for any User Content.

Although we do not have to monitor the Service for any inappropriate or illegal content or conduct, we may decide to do so.

You provide us with your irrevocable consent to monitor and record your interaction with the Service.

You are responsible for all User Content you post or that is otherwise transmitted by you or any other user via the Service. We assume no responsibility for the conduct of any user submitting any User Content and assume no responsibility for monitoring the Service for inappropriate or illegal content or conduct, or for any content that infringes upon the intellectual property rights of others. We have no obligation to monitor User Content. If we choose at any time, in our sole discretion, to monitor the Service, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and we may monitor or record your interaction with the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording and, to the extent that the consent of any other user is also required, you will obtain such consent on our behalf.

2.3 Information Disclosed through the Service

You alone are responsible for User Content.

We may reject or delete certain User Content.

We may limit the storage capacity of the User Content.

We may slow down the speed at which User Content is submitted.

We may access, monitor and disclose some User Content.

You provide us with your irrevocable consent to access, monitor and disclose your User Content and will also obtain any other user’s consent thereto if we need it.

2.3.1 You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others. Information, materials, products or services provided by other users (for instance, in their profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service - Clickatell assumes no responsibility or liability for that material. If you become aware of misuse of the Service by any person, you must report it to us. We may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of Clickatell may violate these Terms of Service. We reserve the right to limit the storage capacity of User Content that you post. We also reserve the right to slow down the speed at which you or others submit User Content.

2.3.2 Your information and the contents of all your online communications (including but not limited to chat text, voice communications and IP addresses) may be accessed and monitored as necessary to provide the Service and may be disclosed by us for any reason, including, but not limited to, (i) when we have a good faith belief that we are required to disclose the information in response to a legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws; (iii) when we believe that the Service is being used in the commission of a crime, including, but not limited to, to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health or safety of any person or the public generally; and (v) to protect the rights or property of Clickatell, including, but not limited to, to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure and, to the extent that the consent of any other user is also required, you will obtain such consent on our behalf.

2.4 User Interactions

You alone are responsible for your interactions with other users of the Service.

We do not have to get involved with disputes, but, if we do, you release us from any claims in connection with such disputes.

You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. Clickatell reserves the right, but has no obligation, to become involved in any way with these disputes. If you have a dispute with one or more users, you release Clickatell (and our officers, directors, agents, subsidiaries, joint ventures and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including, but not limited to, damages for loss of profits, goodwill, use or data.

2.5 Third-party Applications

We may make use of third-party applications, such as Facebook and Twitter, to provide the Service to you.

We are not responsible for those third-party applications and your use of the Service will be governed by their terms.

The Service may be provided on, within, through or by means or facilitation of (“via”) third-party websites or applications, such as but not limited to Facebook and Twitter. We are not responsible for such third-party websites or applications and your use of the Service via those websites or applications are governed by the terms applicable to them. Also, to the extent that you provide your or any third party’s credentials in connection with such third-party websites or applications, you acknowledge that those credentials are supplied to us only for purposes of connecting you or such third parties to the Service.

2.6 Encryption

User Content is unencrypted and can be intercepted.

User Content is transmitted in an unencrypted format. As such, Clickatell does not guarantee that interception of any nature will not occur in respect thereof.

2.7 Correct Information

Always make sure your business information is correct.

You are solely responsible to ensure that your business information, such as but not limited to your location, operating hours and after-hours contact information, is correctly captured on the account that you use in connection with the Service. We are not responsible for any incorrect information that may appear in any automated response offered by Clickatell as part of the Service where such response includes any such information.

3 Suspension And Termination Of Account And Service

3.1 Suspension and Termination of Account

We may suspend and terminate your account if you fail, or if we suspect that you fail, to comply with these Terms.

WITHOUT LIMITING ANY OF OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR CLICKATELL SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USERNAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS AND PRIVILEGES ASSOCIATED WITH YOUR USE OF THE SERVICE AND CLICKATELL IS UNDER NO LIABILITY TO YOU FOR ANY SUCH LOSSES OR RESULTS.

3.2 Suspension and Termination of Service

We may suspend and terminate the Service and prohibit access to our applications and sites if we have reason to believe that we are facing any risk or liability, or that third-party intellectual property rights may be infringed.

WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR APPLICATIONS AND SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE, IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO INFRINGE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

3.3 Right to Cease the Service

We may cease to offer or support the Service, permanently or temporarily.

We are not obliged to refund you if the Service or certain elements thereof is/are discontinued.

We reserve the right to cease offering or supporting the Service or a particular application or part of the Service at any time, either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Clickatell shall not be required to provide refunds or other compensation to users in connection with such discontinued elements of the Service. Termination of your account can include disabling your access to the Service or any part thereof, including any content you or others submitted.

4 Ownership

4.1 Our Applications and Service

We own the intellectual property in and to the Service.

The intellectual property rights in and to the Service (including but not limited to any applications, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-application chat transcripts, recordings of applications played using a Clickatell Touch application client and the Clickatell Touch application clients and server software) are owned by Clickatell Corp. Clickatell reserves all rights, including, but not limited to, all intellectual property rights or other proprietary rights in connection with the Service.

4.2 Names and Logos

We may use each other’s names and logos.

We may revoke each other’s right to use our names and logos.

Any feedback that you provide us with will become our property.

We grant each other the right to use and display each other’s name and logo, but only in connection with the Service. Either of us may revoke the other’s right in this regard by means of a written notice. We will 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. If we use each other’s names and logos, we will:
4.2.1 not use such names and logos, except to the extent allowed by these Terms;

4.2.2 always use the current, unmodified names and logos;

4.2.3 not misrepresent the relationship between us;

4.2.4 not present ourselves as affiliates of each other.
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.

4.3 Accounts

We own all accounts.

An account will be considered active until you request us to deactivate or delete it.

We may terminate an account if it has been inactive for some time.

We may access any account for administrative – or technical reasons.

Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that you have no ownership or other property interest in an account and you further acknowledge and agree that all rights in and to an account are and are forever owned by and inure to the benefit of Clickatell. Accounts created with us, through the Service, will be considered active until we receive a user request to deactivate or delete them, except we reserve the right to terminate any account that has been inactive for a period of time we deem reasonable. You also acknowledge and agree that we may access any account at any time, without notice to you, for any administrative – or technical purposes we, in our sole discretion, deem necessary.

4.4 User Content

You represent and warrant that User Content complies with the requirements set out here.

You provide us with a license to take certain actions in connection with your User Content.

We are not responsible to ensure that third parties delete your User Content.

By submitting any User Content while using the Service, you affirm, represent and warrant that that submission is (a) accurate and not confidential; (b) not in violation of any applicable laws, contractual restrictions or other third party rights and that you have permission from any third party whose personal information or intellectual property is included in the User Content; (c) free of viruses, adware, spyware, worms or other malicious code; and (d) that any personal information within such content will at all times be processed by Clickatell in accordance with its Privacy Policy. You hereby grant Clickatell a worldwide, royalty free, non-exclusive, unlimited license to use, reproduce, modify and distribute your User Content, in connection with our provision of the Service, including marketing and promotion of the Service. The license you grant us to use User Content ends when you delete your User Content or close your account, unless your User Content has been shared with others and they have not deleted it. You understand and accept, however, that we have no obligation to ensure that third parties delete your User Content and that removed User Content may persist in back-up copies for a reasonable period of time.

4.5 Back-ups

We are not responsible to back up your User Content.

Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that we are under no obligation whatsoever to back-up your User Content and that you are solely responsible therefor.

5 Fees And Charges

5.1 Fees

Our pricing is published on our website.

You must pay all fees and taxes according to the Service package you select.

We may revise our pricing at any time. The new pricing will be published on our website.

We do not have to provide you with a refund.

The pricing applicable to the available Service packages is published on our website. You agree to pay all fees and applicable taxes in accordance with the payment terms applicable to the Service package selected by you. Clickatell may revise the pricing for the Service at any time, in which case the revised pricing will be published on our website or notified to you by e-mail. Any free trial or other promotion that gives you access to the Service for free or at a discount must only be used within the specified time of the trial. You must stop using the Service before the end of the trial period in order to avoid being charged the non-promotional rate for the Service. You acknowledge that Clickatell is not required to provide a refund for any reason and that you will not receive any money or other compensation for unused Services when an account is closed, whether such closure was voluntary or involuntary.

5.2 Taxes and Deductions

Our prices exclude taxes.

You must pay all amounts to us without set-off or deduction.

You are responsible for all bank – and finance charges.

Unless we have expressly agreed otherwise with you, 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. You are responsible for payment of all bank - and finance charges.

5.3 Payment Terms

You must pay for the Service in advance, unless we have granted you credit.

Unless we have accepted and approved your credit application, you must pre-pay for the Service. If we have approved your credit application, you agree to be invoiced electronically. You can view your invoices and transaction history on the account through which you use the Service. Your billing address will determine what currency you will be invoiced in. All invoices must be paid within thirty (30) days from date of invoice by means of an electronic funds transfer into a banking account specified by Clickatell in writing, or by means of a valid credit card.

5.4 Unpaid Amounts

Unpaid amounts may attract interest.

If any amounts that you owe us are not paid by the due date, we can charge you interest. We will charge you interest at a rate of 2% per month or at the maximum rate permitted by law, whichever is less, from the date the payment was due until the date of actual payment.

5.5 Third-party Charges

You must pay all charges levied by third parties.

You are responsible for all fees and charges levied by third parties in connection with your access to and use of the Service, including but not limited to data transmission providers.

5.6 Accurate Information

You must always provide us with accurate information for contact – and billing purposes.

You agree to provide us with accurate and current contact -, billing – and payment information. We may suspend or terminate your access to and/or use of the Service if your contact -, billing – or payment information is incorrect at any time.

6 Updates, Privacy Policy And Support

6.1 Service

You will need to accept updates to the Service.

You may have to update third-party software from time to time.

You understand that the Service is evolving. We may require that you accept updates to the Service and to our applications that you use. You acknowledge and agree that Clickatell may update the Service with or without notifying you. You may need to update third party software from time to time in order to use the Service.

6.2 Privacy Policy

Our Privacy Policy also applies to your use of the Service.

Use of the Service is also governed by Clickatell's Privacy Policy, which is incorporated into these Terms by reference. You acknowledge and agree that Clickatell’s Privacy Policy also applies to your own personal information that you submit while using the Service. By creating an account or accessing or using the Service you accept and agree to be bound by these Terms of Service and Clickatell's Privacy Policy. To the extent the Terms of Service or Clickatell Privacy Policy conflict with any other Clickatell terms, policy, rules or codes of conduct, the terms contained in these Terms of Service and in the Clickatell Privacy Policy shall govern.

6.3 Updates to the Terms of Service and Privacy Policy

We may amend these Terms and our Privacy Policy at any time and will give you notice thereof.

By continuing to use the Service, you are deemed to have accepted the changes.

Clickatell reserves the right, at our discretion, to change, modify, add or remove portions of these Terms of Service and our Privacy Policy at any time by posting the amended Terms on or within the Service, or on our website. You may also be given additional notice, such as an email message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective once they are posted. Clickatell may also revise other policies, codes, or rules at any time. No amendment to the Terms of Service or Privacy Policy shall apply to any dispute of which Clickatell had actual notice before the date of the amendment.

6.4 Support

We will provide you with support.

You acknowledge and agree that the Service is provided on a “self-serve” basis. However, you may contact us for support, as follows, free of charge:
i. by contacting us at https://www.clickatell.com/contact/contact-support/; or
ii. through our social channels at Facebook and Twitter; or
iii. at Web Chat on www.clickatell.com.

7 Disclaimers, Limitations, Waivers And Indemnification

7.1 Disclaimer of Warranties

We provide the Service to you without any warranties.

YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW). WITHOUT LIMITING THE FOREGOING, NEITHER CLICKATELL NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “CLICKATELL PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT IT WILL BE COMPATIBLE WITH ALL END-USER DEVICES. ALSO, WE DO NOT WARRANT THAT ANY THIRD-PARTY APPLICATIONS WILL BE UNINTERRUPTED, AVAILABLE FOR ANY SPECIFIC PERIOD OF TIME, COMMERCIALLY OR AT ALL, OR THAT IT WILL BE MADE AVAILABLE IN ANY SPECIFIC FORMAT OR WITH ANY SPECIFIC FEATURES.

7.2 Limitations and Waivers of Liability

The disclaimers of liability set out here apply to all damages and injury, of any kind, in connection with the Service.

We are not liable for any indirect or consequential damages, such as (but not only) loss of profits, goodwill or data.

We are not liable for the conduct of others.

If we are liable to you for any reason, our liability will be limited.

Nothing in these Terms will affect your statutory rights.

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED IN THESE TERMS APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE CLICKATELL PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE CLICKATELL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CLICKATELL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE CLICKATELL PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID CLICKATELL IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID CLICKATELL ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CLICKATELL IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER.

7.3 Indemnification

You indemnify and hold the Clickatell Parties harmless from any liability for losses, damages and fees arising from your or others’ misuse of the Service or a breach of these Terms.

We reserve the right to control the defense of any matter for which you indemnify us, at our expense.

You indemnify, save and hold harmless the Clickatell Parties from any claims, losses, damages, liabilities and legal fees and expenses arising out of your and/or any other user’s use or misuse of the Service, any violation by you and/or any other user of these Terms of Service or any breach of the representations, warranties and covenants made by you in these Terms. Clickatell reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Clickatell and you agree to cooperate with Clickatell's defense of these claims. Clickatell will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your account or of the Service.

8 Dispute Resolution

8.1 General

We want to provide you with a neutral and cost-effective means of resolving any dispute between us.

If we are unable to resolve any dispute through our customer support service, we will make use of alternative dispute resolution procedures.

If a dispute arises between you and Clickatell, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and Clickatell agree that you and Clickatell will resolve any claim or controversy at law or equity that arises out of these Terms or the Service (excluding claims for injunctive or other equitable relief) through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. However, before resorting to these alternatives, you will first contact us directly through customer support to seek a resolution.

8.2 Improperly Filed Claims

Any claims brought by you against Clickatell must be resolved in accordance with this clause. If not, they will be considered improperly filed.

All claims you bring against Clickatell must be resolved in accordance with this clause‎ 8. All claims filed or brought contrary to this clause ‎8 shall be considered improperly filed. Should you file a claim contrary to this clause ‎8, Clickatell shall be entitled to recover attorneys’ fees on an attorney-and-client scale, provided that Clickatell shall have notified you in writing of the improperly filed claim and you shall have failed to promptly withdraw the claim.

9 Confidentiality

Any information or data that we disclose to each other that is marked as confidential, or is proprietary information, or should be understood to be confidential, is confidential information.

Some information is not regarded as confidential information.

Confidential information is valuable and must be protected.

Confidential information may only be disclosed to persons who have a need to know the information and who are legally bound to protect it.

Any unauthorized disclosure of confidential information will be regarded as a material breach of these Terms and may lead to legal action.

Confidential information is any information or data, regardless of whether it is in tangible form, disclosed by either one 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 the disclosure.
Confidential information includes but is not limited to trade secrets, know-how, operating procedures, business concepts, customer lists, marketing campaigns, merchandise lists, computer software and – training, price lists, price structures and promotional material.
Confidential information does not include information that:

  • is publicly available through no fault of the receiving party;
  • was properly known to the receiving party, without restriction, prior to disclosure thereof by the disclosing party;
  • was properly disclosed to the receiving party, without restriction, by another person without violation of the rights of the disclosing party;
  • is independently developed by the receiving party without use of or reference to the disclosing party’s confidential information.

Confidential information is valuable to us and to you.
Unless the disclosing party has agreed thereto in writing, confidential information must not be disclosed to anyone other than to those employees, representatives, affiliates, actual or potential investors, sub-contractors and advisors who have a need to know and are legally bound to keep such information confidential on the same basis as set out in these Terms.
You and we will take reasonable steps to protect confidential information.
If confidential information is disclosed, or suspected to be disclosed, other than in accordance with these Terms, the receiving party will notify the disclosing party thereof immediately.
An unauthorized disclosure of confidential information will be considered a material breach of these terms.
In the event of the actual or threatened breach of this section, the disclosing party will be entitled to take legal action, including but not limited to a claim for damages and/or injunctive relief (e.g. an interdict or “gag” order).

Miscellaneous

10.1 Assignment

We may assign these Terms and our Privacy Policy at any time, but you will need our consent to do so.

Clickatell may assign these Terms of Service and the Clickatell Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Clickatell's prior written consent and any unauthorized assignment and delegation by you is null and void.

10.2 Supplemental Policies

We may publish additional policies related to the Service.

Clickatell may publish additional policies related to the Service. Your right to use the Service is subject to those policies and these Terms of Service.

10.3 Severability

If any part of these Terms or our Privacy Policy is illegal or unenforceable, it will be ineffective, but the remaining provisions will remain in full force and effect.

You and Clickatell agree that if any portion of these Terms of Service or of the Clickatell Privacy Policy is found illegal or unenforceable, in whole or in part, by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability, without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.

10.4 Entire Agreement

These Terms and all other documents referred to in these Terms constitute the whole agreement between us.

These Terms, any supplemental policies and any documents expressly incorporated by reference herein, contain the entire understanding of you and Clickatell and supersede all prior understandings relating to the subject matter of these Terms, whether electronic, oral or written, or whether established by custom, practice, policy or precedent.

10.5 Language

The English version of these Terms or any policy will prevail over any translated document.

If we, in our sole discretion, provide you with a translation of the English language version of these Terms, the Clickatell Privacy Policy or any other policy, then you agree that the translation is provided for informational purposes only and does not modify the English language version. In the event of a conflict between a translation and the English version, the English version will prevail.

10.6 No Waiver

If we do not enforce these Terms or our Privacy Policy strictly, or if we do not exercise any right we have under them, it does not mean that we give up our right to do so.

The failure of Clickatell to require or enforce strict performance by you of any provision of these Terms of Service or the Clickatell Privacy Policy, or failure to exercise any right under them, shall not be construed as a waiver or relinquishment of Clickatell's right to assert or rely upon any such provision or right in that or any other instance. The express waiver by Clickatell of any provision, condition or requirement of these Terms of Service or the Clickatell Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

10.7 Amendment

Unless these Terms provide otherwise elsewhere, they can only be amended in writing and if you and us sign the amendment by hand.

Except as expressly and specifically set forth in these Terms of Service, no representations, statements, consents, waivers or other acts or omissions by Clickatell shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing and hand-signed by you and a duly appointed officer of Clickatell. For purposes of this provision, “writing” does not include an email message and a signature does not include an electronic signature.

10.8 Notices

Notices will be given as stated here.

We may notify you by postings on our website, via e-mail or via any other communications by means of contact information you provide to us. All notices given by you or required from you under these Terms of Service or the Clickatell Privacy Policy shall be in writing to webterms@clickatell.com.

10.9 Equitable Remedies

We are entitled to certain legal remedies if you breach these Terms.

You may not seek any relief other than a claim for monetary damages in connection with, or restrain, the operation of the Service or any Clickatell application.

You acknowledge that the rights granted and obligations made under these Terms of Service are of a unique and irreplaceable nature, the loss of which will irreparably harm Clickatell and that cannot be replaced by monetary damages alone. Accordingly, Clickatell will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Clickatell application, exploitation of any advertising or other materials issued in connection therewith or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7 (if any).

10.10 Force Majeure

We will not be liable to you if we fail to perform, or if our performance is delayed, for any reason outside our control.

Clickatell shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Clickatell, including but not limited to any failure to perform hereunder due to unforeseen circumstances or cause, such as (but not limited to) acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of facilities or labour.