These are the Master Terms that will govern and regulate the overall engagement between you and Clickatell. They include items such as standard payment terms, dispute resolution procedures, grant of licences etc. The finer detail and product-specific terms will be goverend under the Connect Services Terms applicable to your choice of products(s) and are located in the Connect Services Tab on this webpage. These Master Terms are duly incorporated into those Connect Services Terms by default.
Basic overview: These terms are intended to constitute an agreement between you and Clickatell regulating our engagement and the services to be provided.
1.1 Clickatell is a mobile engagement enabler in the business of providing Software-as-a-Service (Saas) and other API driven Services, that enables its global customers to communicate and transact with consumers using various channels and it has the necessary expertise, skill, know-how, qualifications and ability to perform the Services.
1.2 These terms are intended to constitute an enabling agreement in terms of which Clickatell will provide the Services to the Customer and the Parties will execute Service Annexures specifying the specific Services which Clickatell will provide to the Customer.
1.3 The Customer hereby appoints Clickatell and Clickatell hereby accepts such appointment, to provide the Services in accordance with these terms and conditions.
Throughout these terms and conditions, these definitions will apply unless the context specifically states otherwise.
2.1 Unless the context otherwise indicates, the following expressions will have the meanings given to them hereunder and cognate expressions will have corresponding meanings:
2.2 “AFFILIATE” means any entity that controls, is controlled by or is under common control of a Party. “Control” means the direct or indirect beneficial ownership of more than fifty per cent (50%) of the voting interests in an entity;
2.3 “AGREEMENT” means these terms in the form of an agreement together with all Service terms and Annexures, Schedules and Service Requests thereto;
2.4 “APPLICABLE LAW” means any applicable law, statute, by-law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body or agency), guidance or industry code of practice, rule of court or directives, delegated or subordinate legislation;
2.5 “API” means Application Programming Interface;
2.6 “BUSINESS DAY” shall mean any day on which banks in South Africa are open for transacting normal business;
2.7 “CONFIDENTIAL INFORMATION” includes, without limitation, all trade secrets and business, financial and technical information of a Party and its Affiliates (whether disclosed orally or in documentary form), including all source codes, object codes, diagrams, flowcharts, algorithms, processes, specifications or functional descriptions, methodologies, tools, techniques, programs, concepts, systems, data, a Party’s customers, designs, copy, artwork, reports, documents, sales and consumer information, procurement and supplier information, product and brand information, product concepts and potential names and slogans, operational information, personnel information, marketing and promotional information, advertising plans and information, research, ideas, plans, strategies, any information contained in reports and all other information and materials in whatever form, relating to the current or potential business activities of the party and its Affiliates;
2.8 “EFFECTIVE DATE” means the date of formal acceptance hereof;
2.9 “INCIDENT” means a technical failure, system malfunction or other occurrence that negatively affects or interrupts the Services or Clickatell’s ability to provide the Services;
2.10 “INDUSTRY CODE OF CONDUCT” means any self-regulatory code of conduct, or any other code of conduct, policy or guideline in the wireless communication or mobile marketing industries, that are adhered to by a significant portion of industry participants;
2.11 “INTELLECTUAL PROPERTY” means all intellectual property worldwide including, but not limited to, inventions, patents, copyright (including renewal rights), trade marks, trade names, service marks, corporate names, trade secrets, know-how, mask works, confidential information, computer software (including source code), processes, discoveries, methods, domain names and all other forms of intellectual property, whether registered or not, and any applications for registration thereof anywhere in the world;
2.12 “MNO” means a mobile network operator;
2.13 “MSISDN (MOBILE STATION INTERNATIONAL SUBSCRIBER DIRECTORY NUMBER)” means a number used to identify a mobile (cellular) phone number internationally as per the E.164 numbering plan and includes a country code and a national destination code which identifies the Subscriber’s MNO;
2.14 “PARTY” means either of Clickatell or the Customer and “Parties” means both of them collectively and will be deemed to mean and include their respective successors and permitted assigns;
2.15 “PERSON” means any natural person, legal entity or other organized group of persons or entities;
2.16 “PERSONAL INFORMATION” means personal information as defined in the relevant data protection legislation applicable in the territory concerned;
2.17 “ROAMING” means an arrangement between MNOs allowing Subscribers to use mobile network outside of their own MNO’s coverage area;
2.18 “SCHEDULE” means a schedule to a Service Annexure or a Service Request and which forms part of such Service Annexure or Service Request;
2.19 “SERVICE ANNEXURES” means the documents executed by Clickatell and the Customer from time to time recording the Services to be provided by Clickatell and which form part of this Agreement and which may include Schedules;
2.20 “SERVICE CODE” means a unique command line or string dialled by a Subscriber in order to access a specific USSD menu (for example *123*1234#);
2.21 “SERVICE COMMENCEMENT DATE” means the commencement date of each Service Annexure as specified in the relevant Service Annexure;
2.22 “SERVICE REQUESTS” means the documents executed by Clickatell and the Customer from time to time recording non-standard additional Services to be provided by Clickatell and which form part of this Agreement;
2.23 “SERVICES” means those services provided by Clickatell to its Customers as recorded in the Service Annexures;
2.24 “SMS” means short message service, which is a mobile data service that allows alphanumeric text of up to 160 characters to be exchanged between mobile phones and other equipment;
2.25 “SUBSCRIBER” means a user of a mobile cellular telecommunications service provided by an MNO;
2.26 “TELECOMMUNICATIONS VENDOR” means an MNO, aggregator or third-party supplier of any connectivity services with which Clickatell contracts for purposes of providing the Services;
2.27 “TELECOMMUNICATIONS VENDOR CONDITION” any rate, term or condition imposed by a Telecommunications Vendor by which Clickatell is bound and which is applicable to any of the Services;
2.28 “USSD” means Unstructured Supplementary Service Data, a technology built into the GSM standard for the transmission of information over the signalling channels of the GSM network.
2.29 Unless the context indicates a contrary intention, an expression which denotes: (i) any gender includes the other genders; (ii) a natural person includes a juristic person and vice versa; and (iii) the singular includes the plural and vice versa, unless it is clear from the context that the Parties had a different intention.
2.30 In the event of ambiguity or conflict between any of the different parts of these terms and Agreement, the order of precedence in the interpretation of the Agreement will be: Service Annexure or Service Request; then these terms.
2.31 Clickatell and Customer shall individually be called “Clickatell” and “Customer” respectively and collectively as “Parties”.
2.32 The headings used herein are for convenience only and shall not in any way define or limit the scope of this Agreement.
2.33 In this Agreement, where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings.
2.34 The rule of construction that this Agreement will be interpreted against the party responsible for the drafting or preparation of this Agreement, will not apply.
2.35 Any reference to a “day” other than “Business Day” in this Agreement will mean a calendar day.
These terms will apply in the form of a binding Agreement once formally accepted and can be terminated on 90 days prior notice by either party.
3.1 This Agreement will commence on the Effective Date and will continue for an indefinite period until all Service Annexures have been terminated.
3.2 Each Service Annexure will commence on its Service Commencement Date and may be terminated by either Party on 90 (ninety) days written notice to the other Party without terminating the entire Agreement, unless agreed otherwise in the Service Annexure.
3.4 Notwithstanding any provision contained in any Service Annexure hereto, should this MSA be terminated in terms hereof, all Service Annexures and Service Requests hereto will automatically terminate on the date of termination of this MSA.
Clickatell will provide the Services as outlined in there terms or any additional Service annexures agreed between the Parties.
4.1 The Services rendered by Clickatell to the Customer will be described in the Service aspects of these terms or in any additional Annexures entered between the Parties. Each Service Annexure will govern a specific Service. Each Service Annexure will contain among other things, a description of the Service, duration and renewal, service levels, pricing, regulatory requirements and other obligations of the Parties.
4.2 Any Service Annexure entered into between the Parties in terms of this Agreement is hereby incorporated by reference and, save where expressly provided to the contrary herein, will be subject to the terms and conditions of this Agreement.
4.3 Clickatell may provide additional and/or ad-hoc services (other than the Services) under a Service Request executed by both Clickatell and Customer that will describe the services, deliverables, objectives, and/or project phases, as applicable, that Clickatell must complete. Any Service Request entered into between the Parties is hereby incorporated by reference and save where expressly provided to the contrary therein, will be subject to the terms and conditions of this Agreement. Rights and title to any Intellectual Property Rights that may vest in any work product created as a result of such additional services will be defined in the applicable Service Request.
Clickatell reserves various rights in respect to (i) engagement(s) with third party mobile network operators and service providers; (ii) Privacy aspects; (iii) system integrity.
5.1 The Customer agrees and acknowledges that Clickatell’s ability to provide the Services is dependent on, among other things, its connections to telecommunications networks through third-party infrastructure. The Customer further agrees and acknowledges that such telecommunication networks and third-party infrastructure are not under the direct or indirect control of Clickatell. A Telecommunications Vendor’s Conditions and/or technical standards upon which a Service is based may change, and Clickatell therefore reserves the right to modify the terms and conditions governing a Service due to such a change and may require adherence to any modified Telecommunications Vendor Conditions; provided that such changes are communicated to the Customer in writing at least 30 (thirty) days prior to the effective date of such change.
5.2 Upon receipt of a notice detailing any changes provided for in these terms, the Customer will:
5.3 comply with such change from the effective date provided for in the notice and the Parties will amend this Agreement or relevant Service Annexure to reflect those changes, as applicable; or
5.4 cease using, offering and/or transmitting a Service if it cannot comply with any such change.
5.5 upon a Telecommunications Vendor implementing a new or modified Telecommunications Vendor Condition with an effective date of less than 30 (thirty) days, the Customer agrees to comply with such Telecommunications Vendor Condition from the effective date stipulated by the Telecommunications Vendor or cease using, offering and/or transmitting the relevant Service until it can comply with such condition.
5.6 If the Customer deems any material and substantially changed Telecommunications Vendor Condition other than those increasing rates to be unacceptable, then the Customer may terminate the relevant Service Annexure on 30 (thirty) days written notice to Clickatell. The Customer must submit such notice of termination within 10 (ten) days of receiving written notice of the new or modified Telecommunications Vendor Condition, failing which it will be deemed to have accepted the proposed changes.
5.7 Clickatell furthermore reserves the right to:
5.8 change, cancel or suspend any password issued to Customer in the event that Clickatell becomes aware of or reasonably suspects that the password has been compromised or may be accessed or used by unauthorised persons. Clickatell will provide Customer with notice of such change, cancellation or suspension of a password within 24 (twenty-four) hours of such change, cancellation or suspension;
5.9 temporarily suspend any of the Services in the event burst traffic threatens the integrity of Clickatell’s systems, without incurring any liability whatsoever. Clickatell will use reasonable efforts to notify the Customer of any such suspension within 24 (twenty-four) hours;
5.11 collect data relating to the Customer’s use of Clickatell’s Services for the purpose of analysis, reporting, service quality assessment and research. The Customer hereby explicitly consents to the collection and use of data pursuant to this section by Clickatell and/or its Affiliates.
The fees payable for the services will be provided by your Clickatell Account Manager.
6.1 The Customer will pay to Clickatell the fees as detailed in the Payment Terms provided by your Clickatell Account Manager. All fees are exclusive of taxes and statutory fees (collectively referred to as “Applicable Taxes”).
6.2 The basis on which the Customer has to make payment for each Service will be specified in the relevant Service Annexure.
6.3 Clickatell will, in relation to all post-paid fees due under this Agreement, provide the Customer with detailed monthly invoices. Clickatell may include any amount for Services rendered not previously billed on any invoice. The Customer agrees that Clickatell may issue and submit invoices electronically.
6.4 The Customer may submit purchase orders to Clickatell in respect of any post-paid Services. The terms of this Agreement will prevail over any conflicting terms that may be contained in any such purchase order.
Payment of post-paid invoices is strictly within 30 days of the date of such invoice, and any arrear amounts will attract interest at the rate of 2% per month
6.5 All invoices will be payable by the Customer within 30 (thirty) days from date of invoice (“Due Date”) by means of an electronic funds transfer into a banking account specified by Clickatell in writing.
6.6 Invoices not paid by the Due Date are subject to interest from the Due Date until paid. All fees shall accrue interest from the 31st day from the date of invoice and continue until such fees along with all interest at the rate of two percent (2%) per month thereon are paid in full. Interest will be compounded monthly in arrears and calculated on a 365 (three hundred and sixty-five) day year factor, irrespective of whether or not the year is a leap year. In the event that Clickatell initiates collection proceedings for amounts due, the Customer will be liable for all collection and other costs incurred by Clickatell, including but not limited to, reasonable attorneys’ fees, whether or not litigation has commenced.
6.7 In the event of any differences between Clickatell’s records and Customer’s records regarding the Services, Clickatell’s records will prevail.
6.8 If the Customer disputes any portion of any invoice in good faith, the Customer will pay the undisputed portion prior to or by the Due Date and provide a separate written notice with adequate support for any disputed amount (“Claim”) within 30 (thirty) days after receipt of such invoice. Invoices may not be disputed after 30 (thirty) days after receipt thereof. The Parties agree to negotiate in good faith to resolve the Claim, within 30 (thirty) days of Clickatell’s receipt of a Claim. Payment will not prejudice the Customer’s right to dispute charges, so long as they are disputed in the manner and within the time specified herein. If the Claim is not resolved during this period, then either Party may seek resolution of the Claim in accordance with the Dispute Resolution terms herein.
6.9 The Customer will not be entitled to set-off any amounts which Clickatell may owe the Customer, arising from whatsoever cause, against any amounts the Customer owes Clickatell. Notwithstanding the foregoing Clickatell will enjoy such right of set-off.
6.10 Clickatell reserves the right to change fees at its sole discretion in respect of any of the Services, subject to prior notice of at least 30 days to the Customer in accordance with the provisions of the relevant Service Annexure.
Each Party reserves their rights to their lawful intellectual property and no transfer of such rights is agreed or implied herein.
7.1 Nothing contained in this Agreement will be construed to confer or be deemed to confer on either Party the Intellectual Property rights of the other Party. 7.2 Without limiting the generality of the foregoing, each Party acknowledges the validity of the Intellectual Property of the other. Each Party agrees not to challenge the validity thereof or to claim any ownership interest therein.
The Parties will strictly protect any confidential information shared between one another as if such were their own confidential information (subject to lawful agreed exclusions).
8.1 Neither party will without the prior written consent of the other disclose or publish for any purposes the terms of this Agreement, or disclose, publish or make use of, for its own or any purposes, any Confidential Information concerning the other which may come to its knowledge as a result of the discussions leading to this Agreement, or anything done pursuant to it, provided that:
8.2 either Party may disclose Confidential Information of the other Party to its affiliated companies, employees, contractors and agents as required in the normal course of its business and provided that such disclosures are subject to at least the same restrictions as contained in this clause; and 8.3 this provision will not apply:
8.4 to the disclosure or publication for the purpose of any legal proceedings or arbitration to which the signatories hereto may be parties, and/or
8.5 where such Confidential Information has already been disclosed or published to the general public (other than as a result of a previous unauthorised disclosure, publication or use for its own purpose by either of the parties).
These undertakings remain in force irrespective of whether the Agreement is later terminated.
8.6 This clause will remain in full force and effect notwithstanding the termination of this Agreement howsoever caused.
8.7 The parties agree that non-compliance by a party hereto with this term above will constitute a material breach of this Agreement. The Parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this clause, each Party is entitled to seek appropriate equitable relief in addition to any remedies it may have at law.
8.8 In the event that the Parties execute a separate non-disclosure agreement and to the extent that the provisions of such agreement conflict with the provisions of these terms, the terms and conditions of such non-disclosure agreement will prevail.
The Parties confirm that they will adhere to all applicable legislation within the territory that the services are provided. In addition, the Parties note that as a United States entity, Clickatell will not provide restricted services within any formally embargoed territories (As published by the US Department of State from time to time).
9.1 Without limitation to the remainder of this clause, each Party warrants that it will comply with all Applicable Laws and regulations. The Customer will use the Services for lawful purposes only and will also comply with any Industry Code of Conduct and any code of practice, policy or guideline of any Telecommunications Vendor applicable to the Customer’s use of the Services.
9.2 Each Party warrants that it will use its best endeavours to ensure compliance with, among other things, anti-corruption, anti-money laundering and anti-terrorism laws and best practices, and it will set up internal structures and procedures to track, prevent and detect such violations including breaches of all such laws, regulations and conventions. Each Party further warrants that it will not engage in any criminal activity nor assist, aid, hide or divert the funds from any criminal activity whatsoever.
9.3 The Customer acknowledges that, as a subsidiary of Clickatell Corporation (a company incorporated under the laws of the State of Delaware, USA), Clickatell is bound by various laws of the United States of America (“U.S.”). The Customer acknowledges that the export of any Clickatell goods, software, technology (including technical data), or services to any country embargoed by the U.S. Government without prior authorization by the U.S. Government is strictly prohibited under U.S. law – Customer therefore warrants that it will not transmit any communication via Clickatell’s systems from such embargoed countries or through any persons operating from such countries, or, further to receiving notice from Clickatell of a US embargo imposed on any other country, any country embargoed by the US in future. At the time of contracting, the above limitation applies to the following countries: Cuba, Iran, North Korea, Sudan and Syria.
Clickatell takes its obligations to protect personal and private date incredibly seriously and applies the strictest interpretation of the General Data Privacy Regulations (applicable in the European Union) across its business operations.
9.4 Clickatell and the Customer acknowledge and agree that they have familiarised themselves with the requirements and provisions of the data protection laws applicable within their jurisdiction.
9.5 The Parties specifically agree as follows:
9.6 the Customer agrees to perform all its obligations in terms of the Agreement in a manner to ensure that Clickatell will not breach any of its obligations in terms of applicable data protection laws;
9.7 any Personal Information shared by the Customer with Clickatell and used by Clickatell directly or indirectly in the performance of the Services will remain the Customer’s information;
9.9 the Customer agrees that Clickatell may make use of third-party operators in its business operations in order to provide the Services;
9.10 the Customer agrees to the cross-border transfer of Personal Information for purposes of providing the Services, storage and other reasonable business requirements;
9.11 the Customer acknowledges and agrees that in the event of any person suffering any damages as a result of the Customer’s actions or omissions in terms of the Agreement; and a competent court, regulatory body, authority or person with jurisdiction awarding any damages in favour of such party or awarding any penalties against the Customer or Clickatell, or any operator appointed by Clickatell for purposes of providing the Services to the Customer, the Customer will be liable for payment of such damages or penalties;
9.12 the Customer will be responsible to ensure the security, confidentiality and integrity of any Personal Information received or accessed through the Service, including the receipt or access by any third-parties on behalf of the Customer;
9.13 Clickatell is authorized to process Personal Information for reporting and modelling purposes;
9.14 Clickatell will:
9.15 process Personal Information only for purposes as set out in the Agreement;
9.16 treat all Personal Information under its control as confidential and not disclose it unless allowed or required to do so in terms of the Agreement or in terms of Applicable Law;
9.17 Clickatell agrees to notify the Customer as soon as reasonably possible of:
9.18 any request (together with the full details of the request) from any Person to obtain access to the record of his/her Personal Information and in this regard the Customer agrees that it will be the Customer’s duty to provide such Person with a copy of his/her Personal Information;
9.19 any security breach or anticipated security breach by Clickatell or any of its employees, contractors or third-party service providers; and
9.20 any complaint (together with the full details of the complaint) received from any Person whose Personal Information is held or used in relation to this Agreement;
9.21 Clickatell will implement reasonable appropriate technical and organisational measures to prevent the loss of, damage to and/or unauthorised access or destruction of Personal Information;
9.22 in the event of termination of the Agreement and when directed to do so, Clickatell will delete and destroy all Personal Information received from the Customer in order to ensure that Clickatell does not retain the Personal Information for any longer than it is required for purposes of providing the Service in terms of the Agreement, save for statistical purposes, internal business purposes or purposes of reporting and modelling.
9.23 Notwithstanding any other provision of this Agreement, it is hereby agreed that where Clickatell in its absolute discretion exercised in good faith determines that there has been a breach of any of the provisions of this clause, such breach will be considered a material breach and will entitle Clickatell to immediately terminate this Agreement by written notice to the Customer, without prejudice to other rights and remedies Clickatell may have in terms of Applicable Law.
Clickatell warrants that the Services will not infringe the rights of any third party’s intellectual property.
10.1 Clickatell warrants that:
10.2 the Services will be provided in a professional manner consistent with industry standards; and
10.3 it has whatever rights, authorisations, licences, royalties, consents and permissions required for the provision of the Services.
10.4 The Customer warrants that it will:
10.5 not use or knowingly allow others to use the Services for any improper, immoral or unlawful purpose;
10.6 not use or knowingly allow others to use the Services in contravention of any Applicable Law;
10.7 not use the Services to transmit any unsolicited communications to a Subscriber without the express consent of the Subscriber, and will ensure that appropriate mechanisms exist to enable Subscribers to withdraw or cancel such consent at any time, whereupon the Customer will cease to transmit the relevant communications to such Subscribers;
10.8 at its own expense, take any reasonable security measures necessary (a) to protect access controls (e.g. access passwords) to Clickatell’s systems from unauthorized access, copying or use; and (b) to prevent against any unauthorised third party obtaining the Customer’s password(s). The Customer will immediately inform Clickatell if the Customer becomes aware of any possible or actual unauthorized use or misuse of the Services or Clickatell’s systems; and
10.9 not submit the Personal Information of any Person to Clickatell unless it has obtained the necessary prior consent of that Person to process and allow Clickatell to process such Personal Information.
10.10 The Customer will immediately inform Clickatell in writing if any third party threatens to or makes any claim or institutes legal proceedings against the Customer, Clickatell or any other third party relating to the Customer’s use of the Services.
Various limitations of Clickatell’s warranty apply.
11.1 THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SPECIFICALLY DESIGNED TO MEET THE CUSTOMER’S OR SUBSCRIBERS’ INDIVIDUAL REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CLICKATELL MAKES NO WARRANTIES, REPRESENTATIONS OR OTHER CONDITIONS IN CONNECTION WITH THE SERVICES OR ANY WORK PRODUCT OR OTHER DELIVERABLES OR IN CONNECTION WITH THE SYSTEMS AND/OR TECHNOLOGY USED FOR PROVISION OF THE SERVICES.
11.2 The Customer acknowledges that SMS messages and USSD Sessions are transmitted in an unencrypted format. As such, Clickatell does not guarantee that interception of any nature will not occur in respect of SMS messages or USSD sessions.
11.3 Number look-up may not be available on all Telecommunication Vendor networks. Clickatell will endeavour to provide number look-up services where available. However, the Customer acknowledges that Clickatell may rely on information provided by third parties in order to determine the correct Telecommunications Vendor to which a Subscriber is connected (“Number Look-up”). Due to number portability between Telecommunication Vendor networks, Clickatell does not guarantee that number look-up will always be available and/or correct.
11.4 Each Service is available in respect of networks of certain MNOs only as specified in each relevant Service Annexure, except the SMS Delivery Services Annexure. In respect of SMS Delivery Services, Clickatell regularly updates its network coverage tables on its website at www.clickatell.com. These tables specify all the MNO networks to which Clickatell can transmit SMS Messages. It is the Customer’s responsibility to ensure that it uses the Services only for transmission to Subscribers connected to MNO networks specified in the relevant Service Annexure or on Clickatell’s coverage tables as may be applicable to each Service and as may be amended from time to time. Should the Customer submit any data / communication to Clickatell for transmission to a Subscriber connected to an MNO network not specified in the relevant Service Annexure or on Clickatell’s coverage tables as may be applicable, Clickatell may charge the Customer a delivery / transmission fee regardless of whether such transmission was in fact delivered to or received by the Subscriber.
Neither party will be liable for indirect or consequential damages as a result of these terms and the total aggregate liability is limited to an amount tied to the volumes of business over the preceding period.
12.1 The provisions of this clause specify the entire liability of Clickatell whether arising in contract, delict or otherwise and will survive termination of this Agreement for any reason.
12.2 Clickatell acts as a mere conduit in the transmission, routing, and/or provision of the Services. Clickatell performs the Services in an automatic manner without any modification to the content or selection of the addresses of the material being sent or received.
12.3 CLICKATELL WILL NOT BE LIABLE TO THE CUSTOMER, SUBSCRIBERS OR ANY THIRD PARTIES IN ANY CIRCUMSTANCES FOR ANY INDIRECT, CONTINGENT, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OR LOSSES, SUSTAINED OR INCURRED BY THE CUSTOMER, SUBSCRIBERS OR ANY THIRD PARTIES, HOWSOEVER ARISING. Without derogating from the aforegoing, in no event shall Clickatell be liable for any loss of use, loss of revenue, loss of business or loss of profits, loss of data or other intangibles, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use or unauthorised use of the Services, any systems failure, Service delivery failure, corruption, interruption or termination of Services, breach of privacy or breach of data security, whether such damages arise in contract, delict, under statute, in equity, at law or otherwise.
12.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OTHER THAN THE PROVISIONS OF THESE TERMS (Indemnification), EITHER PARTY’S LIABILITY TO THE OTHER FOR DIRECT DAMAGES WILL BE LIMITED TO AN AMOUNT NOT EXCEEDING THE TOTAL FEES FOR THE SERVICES RENDERED TO THE CUSTOMER DURING THE 6 (SIX) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
12.5 Each Party agrees that no damages can be claimed with respect to any event that occurred more than 1 (one) year prior to such claim being asserted.
Both Parties indemnify one another from liability for the Indemnifying Party’s negligence or intellectual property infringements.
13.1 The Customer hereby agrees to indemnify and defend Clickatell, its Affiliates and their respective officers, directors, employees, agents and suppliers (each an “Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party, including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against an Indemnified Party arising out of or resulting from third party claims concerning, but not limited to:
13.2 the Services or any content transmitted via Clickatell’s systems;
13.3 a material breach of the Customer’s representations, warranties or obligations hereunder;
13.4 any action, commission and/or omission by the Customer that constitutes a breach or contravention of any Applicable Law or Telecommunications Vendor Condition;
13.5 the negligent acts or wilful misconduct of the Customer, its employees, contractors or agents;
13.6 the fraudulent or unauthorised use of the Customer’s username and/or password, loss thereof, or a failure by the Customer to update the email address and other details applicable to the Client’s account; and/or
13.7 that the Customer’s use of the Services or the content transmitted by the Customer infringes or misappropriates any third-party Intellectual Property right.
13.8 the Customer acknowledges and agrees that it will be responsible for answering and defending any complaints received by Clickatell from any relevant regulatory body in connection with the Customer’s use of any of Clickatell’s Services. Clickatell undertakes to forward any such complaints to the Customer within 2 (two) Business Days of receipt of same. The Customer undertakes to follow the applicable complaint procedures and to respond to each such complaint within the timeframes specified by the relevant regulatory body in respect of the relevant complaint and will forward a copy of its response to Clickatell at the time of response. The Customer further agrees that it will be liable for any fines and/or penalties imposed by any such regulatory body on it and/or Clickatell or any of Clickatell’s Affiliates resulting from the Customer’s use of any of Clickatell’s Services in contravention of any of the provisions of this Agreement.
13.9 Clickatell hereby agrees to indemnify and defend the Customer, its officers, directors and employees (each an “Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against the Indemnified Party) from third party claims arising out of or resulting from:
13.10 the grossly negligent acts or wilful misconduct of Clickatell, its employees, contractors or agents; and/or
13.11 Clickatell’s systems infringing or misappropriating any third-party Intellectual Property right.
13.12 The obligations set forth in this clause 14 (Indemnification) are contingent upon (a) the Indemnified Party giving 10 (ten) days’ prompt written notice to the indemnifying Party of any indemnified claim, (b) the Indemnified Party allowing the indemnifying Party the sole control of the defence and related settlement negotiations for such claim, provided that the Indemnified Party will have the right to approve or disapprove any settlement or compromise, provided its approval will not be unreasonably withheld or delayed. The Indemnified Party will fully assist and cooperate in the defence and settlement negotiations as requested by the indemnifying Party so long as the indemnifying Party pays the Indemnified Party’s out-of-pocket expenses associated with such assistance and cooperation.
13.13 Clickatell assumes no liability for any copyright, trademark, patent, trade secret or other property rights infringement claims to the extent that they arise from (a) the Services being used outside the scope of this Agreement, or (b) the combination of Clickatell’s systems or Services and the way in which such systems or Services are used by the Customer. The Customer assumes no liability for any copyright, trademark, trade secret or other property rights infringement claims to the extent they arise from Clickatell’s systems, the Services or the services provided by Telecommunications Vendors.
13.14 EXCLUSIVE REMEDIES. THE PROVISIONS OF THIS CLAUSE (“INDEMNIFICATION”) STATE THE ENTIRE LIABILITY AND OBLIGATION OF CLICKATELL AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT OR MISAPPROPRIATION OF A TRADE SECRET
The Parties may terminate the Agreement that results from these terms for various reasons and with various prior notice periods (dependant on the basis for such termination).
14.1 Without prejudice to any other rights and/or remedies to which it may be entitled at law, or in terms of this Agreement, either Party may terminate this Agreement with immediate effect upon written notice if the other Party:
14.2 fails to pay any amount due by it in terms of this Agreement by the Due Date, and fails to remedy such breach within 10 (ten) days of written notice to do so;
14.3 commits a breach of any provision of this Agreement and fails to remedy such breach within 10 (ten) days of written notice to do so;
14.4 commits an act of insolvency, takes steps to place itself, or is placed, in liquidation, whether voluntary or compulsory, or under judicial management, in either case whether provisionally or finally; or
14.5 take steps to deregister itself or is deregistered.
14.6 Clickatell may terminate or suspend this Agreement, any Service Annexure, Service Request and/or the provision of the Services in its reasonable discretion and without penalty, upon providing the Customer with as much advance written notice as practicable in the event of:
14.7 any termination of services delivered by a third-party subcontractor, vendor, or Telecommunications Vendor, or discontinuance of equipment or a component of service that is necessary for Clickatell to continue to provide the Services; or
14.8 any governmental prohibition concerning the provision of, or any required alteration of the Services provided hereunder or any violation of Applicable Law, rule or regulation resulting from the Services.
14.9 On the date of termination of this Agreement for whatever reason:
14.10 the Customer will immediately cease accessing Clickatell’s Services and systems;
14.11 all payment obligations of the Customer under this Agreement will become due and payable immediately; and
14.12 all licenses and rights granted under this Agreement will terminate immediately.
14.13 On termination of this Agreement for any reason, any obligations and rights contained herein that by their nature are intended to survive.
14.14 Clickatell reserves the right to suspend, in whole or part, the provision of Services to the Customer if:
14.15 the Customer or a Subscriber uses the Services in contravention of any Applicable Law or any of the provisions of this Agreement;
14.16 suspension is necessary as a consequence of any emergency system repair or breach of system security (“Emergency Suspension”);
14.17 the Customer fails to pay any Fees by the applicable Due Date; or
14.18 it is required to do so pursuant to a governmental or regulatory authority having jurisdiction over the Services pursuant to Applicable Laws (“Regulatory Suspension”).
14.19 Clickatell will use commercially reasonable efforts to promptly restore Service, as applicable, upon the cause of suspension being remedied to Clickatell’s reasonable satisfaction.
14.20 In respect of each suspension of Services in terms of this clause, Clickatell will provide written notice (by email or otherwise) as detailed below:
14.21 Contravention by the Customer of any law or of its obligations under this Agreement: Clickatell will provide as much advance written notice as practicable or provide immediate written notice upon implementing any such suspension;
14.22 Emergency Suspension: Clickatell will provide as much advance written notice as practicable or provide immediate written notice upon implementing any such suspension;
14.23 Regulatory Suspension: Clickatell will use commercially reasonable efforts to notify the Customer in advance of any such suspension by providing notice within two (2) Business Days after Clickatell receives written confirmation of any regulatory suspension.
14.24 Clickatell will not be liable to the Customer or any third party for any direct, indirect and/or consequential damages, expenses or losses incurred as a consequence of any suspension in terms of this clause.
The Parties will mutually seek to resolve any disputes as swift and amicably as possible. Where such is wholly impossible, then such will be referred to independent arbitration for prompt assistance.
15.1 Should any dispute arise between the Parties in connection with this Agreement, or which relate in any way to any matter affecting the interests of the Parties in terms of this Agreement, the Parties will meet within 5 (five) Business Days of written notice of the dispute from one Party to the other (or such longer period as mutually agreed by the Parties in writing) to negotiate in good faith in an effort to settle such dispute.
15.2 Should the Parties fail to resolve any dispute between themselves within 3 (three) Business Days of the meeting referred to herein (or such longer period as mutually agreed by the Parties in writing), either Party may refer the dispute for settlement by arbitration by one single arbitrator to be mutually appointed in accordance with the provisions of the Rules of the Arbitration Foundation of South Africa (AFSA) and any amendments thereof.
15.3 neither Party will be precluded from obtaining interim, injunctive or similar relief from a court of competent jurisdiction or from instituting action for the recovery of any liquidated and/or undisputed amounts owing in terms of this Agreement.
15.4 The arbitration will be held:
15.5 in accordance with provisions of the Rules of the Arbitration Foundation of South Africa (AFSA) and any statutory amendments thereof.;
15.6 in Cape Town [unless otherwise mutually agreed by the parties], in the English language;
15.7 being the intention of the Parties that the arbitration will be held and completed within 21 (twenty-one) days of its commencement.
15.8 arbitrator will be, if the matter in dispute is principally:
15.9 legal matter, an impartial practising advocate or impartial practising attorney of at least 10 (ten) years’ standing;
15.1 accounting matter, an impartial practising chartered accountant of at least 10 (ten) years’ standing;
15.11 technical matter, an impartial telecommunications expert in the relevant telecommunications field of at least 10 (ten) years’ standing;
15.12 other matter, any independent person(s), agreed upon between the Parties to the dispute.
15.13 the Parties to the dispute fail to agree whether the dispute is principally a legal, accounting, technical or other matter, within 7 (seven) days after the Parties’ agreement to refer the dispute to arbitration, the matter will be deemed to be a legal matter.
15.14 the Parties fail to agree on an arbitrator within 10 (ten) days after the matter was referred to arbitration in terms hereof, the appointment shall be made, upon request of either Party, by the Chairperson of AFSA or such person designated by him/her to make such appointment. Upon every or any such reference the cost of and incidental to the references and award shall be borne and paid equally by the Parties unless otherwise provided for in the award.
15.15 Parties will continue to perform all undisputed obligations where possible whilst any dispute is being resolved.
15.16 in this clause will be construed as applying to disputes regarding Intellectual Property rights or Confidential Information.
16.1 The Parties will nominate addresses for the service of notices and in the absence thereof then electronic communication to their standard email addresses will suffice.
17.1 This Agreement and all matters or disputes arising there from or incidental thereto shall be governed and construed in accordance with the laws of an Agreed territory, based on where such services are provided and the locale of the Parties involved in such service, however as a default the governing law will be that of the US State of Delaware for North and South American based business, and South Africa for African based business. Your Clickatell Account Manager will address these items with you during your initial engagement.
Natural Incidents that negate liability on the part of the Parties.
18.1 Neither Party will be liable to the other for failure to fulfil obligations hereunder if such failure is due to causes beyond its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, or viruses which did not result from the acts or omissions of such Party, its employees or agents, strikes, work stoppages or other labour difficulties (outside the control of the applicable Party), outage of a telecommunications data centre or any part of the network of any Telecommunications Vendor (“Force Majeure Event”) or any act or omission of any other Person that provides any part of a Service or upon which Clickatell relies in order to support or facilitate any part of a Service where such Person is itself the subject of a Force Majeure Event. Except for payment of accrued fees, the time for any performance required hereunder will be extended by the delay incurred as a result of such Force Majeure Event. In the event that a Force Majeure Event continues for a period of 30 (thirty) consecutive days, either Party may terminate this Agreement upon written notice to the other Party.
19.1 Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party. Notwithstanding the aforegoing, either Party may assign this Agreement to a successor in interest or title in the event of a reorganization, merger, consolidation or sale of all or substantially all of such Party’s assets or shares, except that neither Party may assign this Agreement to any entity that competes, directly or indirectly, with the non-assigning Party, without the non-assigning Party’s prior written consent. A Party properly assigning this Agreement will provide notice of such assignment within 60 (sixty) days of the effective date of the assignment.
20.1 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
21.1 No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from this Agreement, and no single or partial exercise of any right by either Party under this Agreement, will in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or stop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each provision or term hereof.
22.1 This Agreement does not create a partnership, joint venture or agency between the Parties and neither Party will be liable for the debts of the other Party, howsoever incurred.
23.1 This document embodies the entire agreement between the Parties and no amendment or variation of any of the provisions of this Agreement will be of any force or effect unless reduced to writing and signed by both Parties. This Agreement supersedes all prior agreements, arrangements and understandings between the Parties relating to the subject matter hereof.
24.1 Each Party hereby grants the other Party a non-exclusive, non-transferrable, royalty free license to use authorised trademarks (including word marks, logos and slogans whether registered or not) for use in marketing material, in publications and on its website. Each Party reserves the right to determine the colour, design and content regarding the use of its trademarks.
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