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The following are the terms and conditions for use of the ClickSMS.info Service ("ClickSMS.info Service" or "the Service") by any customer (hereinafter referred to as "the User"). IMPORTANT: These terms and conditions are valid binding and enforceable against all persons that access the ClickSMS.info website, web pages or any part thereof. If you do not agree to be bound by these terms and conditions you may not use the ClickSMS.info website. Reasonable use of the ClickSMS.info website shall automatically bound the user to this agreement. BY PLACING ClickSMS.info PRODUCTS ON A WEBSITE AND/OR ACCESSING ANY PART OF THE ClickSMS.info SERVICE, THE USER IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT. SHOULD THE USER NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, OR CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, HE/SHE/IT SHOULD CLOSE THE BROWSER WINDOW; THEREFORE TERMINATING THE REGISTRATION PROCESS WILLFULLY, AND AGREEING TO STOP ALL USE OF THE SERVICE AND SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE. IF THE USER IS DEEMED TO HAVE ORDERED THE SERVICE, ClickSMS.info'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY ClickSMS.info, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THE USER AGREES THAT ALL TERMS AND CONDITIONS HEREWITH PUBLISHED SHALL BE BINDING AND THAT SHOULD THERE BE A CONTRADICTION BETWEEN PRODUCT- SPECIFIC TERMS AND CONDITIONS, AND GENERAL TERMS AND CONDITIONS, THE PRODUCT-SPECIFIC TERMS AND CONDITIONS SHALL APPLYDEFINITIONS AND INTERPRETATION The ClickSMS.info website means the ClickSMS.info website located at www.ClickSMS.info.com including any page, part or element thereof, as owned and operated by ClickSMS.info. ClickSMS.info means ClickSMS.info (Offshore Coronet LLC), registration number ..., including its subsidiaries, owners, shareholders and business units. User/User means any person or entity who enters or uses the ClickSMS.info website, notwithstanding the fact that such person only visits the home page of the ClickSMS.info website. 1. THE SERVICE The Service consists of a browser interface, message application, SMS gateway access, e-mail facility, data encryption, data transmission, data access, data storage and, if applicable, synchronization software. The User is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Service. These costs will be displayed during the registration process. All fees are payable upfront, prior to credits being activated. ClickSMS.info makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. ClickSMS.info reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time with on 14 days ' notice. All fees paid to ClickSMS.info when such termination occurs are addressed in the sections below. Messages shall be deemed to have been delivered when ClickSMS.info has delivered/sent the messages to the immediate destination that ClickSMS.info's software is programmed to do, including SMTP servers, Mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message. ClickSMS.info does not guarantee delivery on behalf of Mobile telephone networks of mail servers. ClickSMS.info lays no claims to its network coverage. Although ClickSMS.info focuses on providing extensive coverage aggregation services, mobile networks may choose from time to time to not be part of ClickSMS.info or its service providers' networks. This may result in messages not being delivered. 2. USE OF PROPRIETARY SOFTWARE Subject to the terms and conditions of this Service Agreement and United States (Delaware) Law, ClickSMS.info grants the User an individual, personal, non-sub licensable, non-exclusive and non-transferable license ("the License") to use its proprietary software and/or application service, in object code form only, and only in accordance with the applicable end user documentation, if any, and only in conjunction with the ClickSMS.info Service Agreement. The User will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/ application; or copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to ClickSMS.info products and/or services. As between the parties, the User acknowledges that ClickSMS.info, and its licensors retain ownership of all propriety applications, software, intellectual property "IP" (Intellectual Property) and any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate and the User shall destroy and cease to use all software and applications. THE SOFTWARE IS PROVIDED AND APPLICATIONS ARE OFFERED, "AS IS" AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THIS SERVICE AGREEMENT AND SUBJECT TO TESTING BY THE USER OR User PRIOR TO ENTERING INTO THIS AGREEMENT. 3. MEMBER ACCOUNT, PASSWORD, AND SECURITY To open an account for usage of the Service, the User must complete the registration process by providing ClickSMS.info with current, complete and accurate information as prompted by the Membership/registration Form. Inaccurate details will result in suspension. The User will also choose a password and an account name will be assigned. The User is entirely responsible for maintaining confidentiality with regard to its password and account information. Furthermore, the User is entirely responsible for any and all activities that occur under its account. ClickSMS.info will not be held liable to any third party claims and/or actions taken with respect to services offered. The User agrees to notify ClickSMS.info immediately of any unauthorized use of its account or any other breach of security. 4. MEMBER PRIVACY It is ClickSMS.info's policy to respect the privacy of the User. ClickSMS.info will not monitor, edit, or disclose any personal information about the User or the User's ClickSMS.info account, including its contents, without the User's prior permission unless ClickSMS.info has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of ClickSMS.info; (3) enforce this Service Agreement or protect ClickSMS.info's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by ClickSMS.info; (4) respond to request for identification in connection with claim of copyright or trademark infringement by the User, or a claim by a third party that the User is using the Service in connection with an infringing, illegal or improper activity; or (5) act to protect the interests of the User or others. ClickSMS.info's service transmits the Sender's name (From field) and/or email address with each message that the end-user sends. For more information, see ClickSMS.info's Privacy Policy . The User agrees that ClickSMS.info may access its account, including its contents, as stated above or to respond to service or technical issues. THE USER HEREBY GRANTS ClickSMS.info THE RIGHT TO SEND THE USER COMMUNICATION VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT ClickSMS.info DEEMS IMPORTANT FOR THE USER TO KNOW, RELATING TO THE SERVICE. 5. MO AND PREMIUM RATED SERVICES ClickSMS.info's services relating to Mobile Originated ("MO") and Bi-directional messaging are described in "Appendix to HTTP, SMTP, FTP, XML, SMPP and COM API 1.9 and 2.0 MO and Bi-directional Messaging Services Only" ("MO terms"). Should there be a discrepancy between the MO Terms and this agreement, this agreement shall prevail. ClickSMS.info offers MO and premium rated services ("premium rated services") in certain territories. This is subject to change and can be confirmed with ClickSMS.info from time to time. Any User wishing to use ClickSMS.info's premium rated services shall do so subject to such terms and conditions as may be imposed by ClickSMS.info in its premium rated application forms ("the application form"). The costs associated with the premium rated services shall be as set out in the application form. ClickSMS.info will collect MO messages and pass these on to the User in the methods described by ClickSMS.info. The User will be responsible for content of the service, as well as the cost of any and all bearer charges to provide the content to the end-client. The User shall not use, or knowingly allow others to use, the lines (MO Numbers) for any purpose which in ClickSMS.info's opinion is improper, immoral or unlawful. The User will not act, or omit to act, in any way likely to injure or damage any person, property or the ClickSMS.info gateway or cause the quality of the MO number lines or ClickSMS.info's service in general to be impaired or interrupted in any manner whatsoever. ClickSMS.info shall be entitled, at any time, and without liability to the User or any third party, to modify, expand, improve, maintain or repair the ClickSMS.info service or the MO number ranges, notwithstanding that this may require suspending the operation of the ClickSMS.info MO service. ClickSMS.info shall use its reasonable endeavors to provide the User with advance notice of any such suspension and to minimise the duration thereof in so far as this is reasonably practical. The User warrants that their MO SMS Services do not and will not contravene any laws or regulations of the Republic of South Africa, or the countries in which these services are offered, and in particular any laws relating to privacy, spamming, gaming and gambling and the User indemnifies, holds harmless and shall defend ClickSMS.info against any claim, action or damage suffered or incurred by ClickSMS.info as a result of a breach by the User of this warranty. PLEASE NOTE: In order to ensure that ClickSMS.info complies with industry codes of conduct, users are obliged to route all MT messages related or associated directly or indirectly with any ClickSMS.info hosted short code via ClickSMS.info's messaging gateway. This will enable ClickSMS.info to ensure that all premium rated- and short code messaging services offer the required confirmation messages as stipulated by the various codes of practice and that such messages can be validated as having been submitted. ClickSMS.info shall be entitled to immediately terminate the User's services if the User does not comply with the provisions of this clause, without any liability to the User or any third party . The User will not be entitled to use any of ClickSMS.info's trademarks (whether registered or unregistered) or to make reference to ClickSMS.info in any advertising, publication or communication related to the MO or bi-directional SMS Services or otherwise, other than such usage as permitted by ClickSMS.info in writing. Should the User's account be used by users for such networks as ClickSMS.info charges for incoming messages, the User shall be responsible for such costs in full. These charges are published by ClickSMS.info from time to time, and can be amended by ClickSMS.info as and when ClickSMS.info deems it necessary. ClickSMS.info shall have the right to subtract such message credits as are necessary to redeem the said charges from the User's ClickSMS.info account at the end of each calendar month. For message credits subtracted for incoming messages from the User's account by ClickSMS.info, the User shall at all times ensure that there are enough credits in its account to be subtracted by ClickSMS.info. Should there not be sufficient credits in the User's account at any time to be subtracted by ClickSMS.info for the charges owed to ClickSMS.info, ClickSMS.info reserves the right to terminate this agreement immediately. The charges applicable to this service can be requested from ClickSMS.info via e-mail by the User. PLEASE NOTE: For shared premium rate numbers, a minimum monthly volume of 500 MO message per network per month will be required before ClickSMS.info will pass on revenue to its Users. PLEASE NOTE: For a non-shared premium rate number, Vodacom requires a minimum of 2000 MO messages per number to be sent to that number per month. Should this not be the case, ClickSMS.info shall be entitled to terminate its agreement with the User on 7 (seven) days' notice. All messages sent in reply to any MO messages will be charged at our standard MT rates as published form time to time. Any revenue will be paid to Users 90 days after receipt thereof by ClickSMS.info from the network involved. In the event of any difference between either the records of ClickSMS.info, the records of the User or the network's, the figures from the operators shall be deemed to be correct and binding on the User. 6. ADVERTISING GUIDELINES: PREMIUM RATED SERVICES This section is only applicable to Users who use the ClickSMS.info Premium Rate Service. For the purposes of this section- " Network Charges " refer to the tariff charged for the use of the Vodacom Network, e.g. SMS, MMS, USSD, GPRS etc; " Content/Value Added Service Charges " refer to the tariff charged for the # (choose applicable word) result/message/event etc delivered by the # (insert relevant WASP service name); This section regulates the manner in which the User must advertise their services If the User does not advertise its service in the manner specified in these rules then ClickSMS.info will be entitled to withhold the monthly revenue for that service. Revenue will continue to be withheld until the advertising has been remedied to the full satisfaction of ClickSMS.info. ClickSMS.info's decision shall be final and binding on the User. Notwithstanding the aforementioned penalty, ClickSMS.info reserves the right to suspend and/or terminate a service and/or this agreement in the event of a repeated breach of its terms. As a User you are selling content to an end-client ("the client"). A contract of sale can only be valid if the buyer and seller agree on the price. Thus, at all times, when faced with a transaction a User must know the full retail price of what it is they are going to buy. ClickSMS.info will not tolerate hiding or obscuring the price so that the client is not fully aware of what they are going to pay. To the extent that it is possible (e.g. on your websites and brochures) the User must include reference to the definitions at the top of this section. The price stated to the client must state that it is VAT inclusive. The User must advertise all costs related to the final consumption of the advertised service i.e. network charges as well as content charges. For example if the service is for a polyphonic ringtone, which costs R3 by way of a premium rated SMS, which still has to be downloaded via WAP then the advert must state "R3 + download fees". The client must be advised of the full retail price of the content. For example it is misleading to state that a polyphonic ringtone is R3.00, however in fact the client ends up using two R3 SMS's to get the content resulting in a net charge of R6. Therefore you must either state "R6" or "R3/SMS (2 SMS)." The font size of the price of content must be in such a size that it is easily visible from the advert. The client must be able to view the price with very little effort. The price must be located on the advert in such a place that it is easily visible to the client. Essentially the client must be able to see the price when looking at the advert without having to search the advert for the price. The price may not be hidden in the terms and conditions. The price may not be stated in some adverts for a service and not in others. Where a client is given the option to unsubscribe for a service, only network charges should be charged to unsubscribe and premium content rates must not apply. Where possible the material terms and conditions must be stated in the advert and only where it is not possible to do so, will incorporation by reference be permitted i.e. where reference is made to the terms and conditions being available on a website. The User is not allowed to use the ClickSMS.info logo, trademark, slogan or any other device or form of intellectual property belonging to ClickSMS.info in your advertising without the prior written consent of ClickSMS.info. In all advertising where it is possible to do so, the User's name must be stated so that the client is made aware that it is the User and not ClickSMS.info that is offering the User's service. Expressions such as "offered by or bought to you by X (Pty) Ltd" are sufficient. 7. MESSAGE AND OTHER LIMITATIONS ClickSMS.info assumes no responsibility for the deletion or failure to store information. ClickSMS.info has set no fixed upper limit on the number of messages the User may send through the Service apart from how many units are left in the User's account; however, ClickSMS.info reserve s the right, at its sole discretion, to determine whether or not the User's conduct is consistent with the letter and spirit of the Service Agreement and may terminate the Service if the User's conduct is found to be inconsistent with the Agreement. Please see POINT 17 below for more information on procedure at termination of the service. ClickSMS.info may, in the future, with prior notification, limit the amount of storage space available to each Member. The sender ID that may be sent as part of mobile text messages is not a guaranteed feature and may not be sent without any notification. Although ClickSMS.info prides itself on speedy delivery of messages, messages may be delivered late due to queuing or network traffic. This will still result in the message being seen as "delivered". 8. MEMBER CONDUCT Any unauthorized commercial use of the Service, is expressly prohibited. The User agrees to abide by all applicable local, national and international laws and regulations and is solely responsible for all acts or omissions that occur under its account or password, including the content of any transmissions through the Service. By way of example, and not as a limitation, the User agrees not to:
9. FEES, PAYMENT AND YOUR RIGHT TO CANCEL Fees. In consideration for the use of ClickSMS.info's services, the User shall pay to ClickSMS.info a transaction or subscription fee (as appropriate) for messages delivered or partially delivered using any available delivery method, at the applicable rate then in effect. ClickSMS.info may from time to time offer limited time "Free Trial" or similar promotions during which no transaction fees or reduced transaction fees shall apply. Such promotions are intended for Users to test the capabilities of the Service and/or for casual, personal use only. During such promotions, all provisions of this Agreement shall remain in full force and effect. All fees are payable upfront. Failure to purchase credits upfront will result in suspension of the services. Upfront payment refers to a payment that is made within a reasonable time so as to allow ClickSMS.info to add the SMS credits to the User's account. Payment. Transaction fees are due and payable at the time of or before ClickSMS.info delivers a message to the User's recipients, via every method of de livery based upon the billing plan selected by ClickSMS.info. Payment shall be deemed to have been made as soon as the fee is available in ClickSMS.info's bank account. Credit Card Payment. If the User has elected to pay for the Service by credit card, and ClickSMS.info does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by ClickSMS.info. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment, when such payment is made. ClickSMS.info reserves the right to come to other payment arrangements on a case-by-case basis. (Agreements with the credit card issuer govern use of the User's credit card, and the User must refer to that agreement to ascertain its rights and liabilities as a cardholder.) The User is charged in ZAR and conversion rates are worked out once a day against the EURO. This may change the sales price due to currency fluctuations. The final purchase amount is the amount reflected on the Credit Card holder's statement. Termination or Cancellation by the User. The User is free to terminate or cancel this Agreement at any time, and for any reason; provided, however, for such termination or cancellation to be effective, the User must carry out such termination in accordance with the policies and procedures established by ClickSMS.info, which will be posted in the Billing Information section or similar location within the ClickSMS.info web site. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to info@ClickSMS.info.com . Should there be a cost increase AFTER the User has purchased message units from ClickSMS.info; ClickSMS.info will give the User 14 days' notice of such an increase, which will be applicable to such credits that are still in the User's message unit account. Within this notification period the User may decide to continue with the service and the said increase, or to suspend the service upon which ClickSMS.info will ref und the User to the value of any message unit credits that may be left over in the User's account. The User acknowledges that ClickSMS.info is dependant on various telecommunications networks and institutions for the delivery of its messages and that ClickSMS.info may adjust its prices and offering, should the prices be adjusted due to reasons which are not in ClickSMS.info's control. ClickSMS.info undertakes to notify the User of such adjustments in writing, prior to implementing such adjustments. Should there be a cost increase AFTER the User has purchased message units from ClickSMS.info; ClickSMS.info will give the User 14 days' notice of such an increase which will be applicable to such credits that are still in the User's message unit account. Within this notification period the User may decide to continue with the service and the said increase, or to suspend the service upon which ClickSMS.info will refund the User to the value of any message unit credits that may be left over in the User's account. Should the User's account not have any credits left, the said account will automatically expire. The account will be re-activated upon payment for new message units. Any message units purchased must be used up within 120 days from the date on which it had been purchased. ClickSMS.info may extend this period on a case-by-case basis at its sole discretion. Refunds for SMS message credits: The User can request a refund of monies paid to ClickSMS.info within 7 days of making any purchase of SMS message credits from ClickSMS.info, provided t hat there are enough credits in the User's account to be subtracted by ClickSMS.info, i.e. all messages sent will be subtracted from the User's account. Further to that the User will receive back the amount which fits in with the corresponding volume-option - i.e. on the cost-scale equivalent to the amount of message units sent. There is a 10% charge on all refunds. Refunds for branding fees, licenses, monthly administration fees, and any other fee that the User pays to ClickSMS.info, which excludes all SMS mess age credit fees: no refunds will be made for any fees which are not related to SMS message credits. Credit-based billing principles. ClickSMS.info is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on ClickSMS.info's coverage pages from time to time, and ClickSMS.info charges the published rate when a message is sent through the system. The User may however select the bands or profiles which will apply to specific products, thereby defining the maximum charge per message. The User understands that the number of credits to a specific destination network may change due to various factors, and that ClickSMS.info may adjust these rates whenever it deems it necessary to do so. Should the User not have selected a specific band or profile that supports delivery to a specific destination, the User understands and accepts that messages sent may not be delivered to such destinations. Conversely, should the User have chosen specific bands which support a higher credit rate per message, and is not aware that a specific route at the time of sending the message to ClickSMS.info will be charged at the said higher rate, the User accepts that he/she/it will be charged at whichever rate was at that stage applicable to the desired destination network or MSISDN number. 10. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSIONModification of Terms. ClickSMS.info frequently updates, modifies, and otherwise continually seeks to improve the ClickSMS.info services and products. Such changes often dictate that ClickSMS.info simultaneously modify ClickSMS.info's Terms and Conditions of Use. As such, ClickSMS.info shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the ClickSMS.info service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. Any use by the User of the Service after any such change has been posted, shall constitute the acceptance of any such changes. If the User does not agree with any such changes, the Service may be canceled in accordance with the procedures for cancellation set forth in this Agreement. The User acknowledges its responsibility to review this Agreement from time to time and to be aware of any such changes. Termination, Cancellation and/or Suspension by ClickSMS.info; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by ClickSMS.info at any time if, in ClickSMS.info ClickSMS.info's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by ClickSMS.info shall be effective immediately upon notification by ClickSMS.info to the User in any reasonable mann er, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, ClickSMS.info may elect to suspend, terminate and/or cancel this Agreement and/or recover any and all damages from the User arising from or relating to the e vent(s) giving rise to the suspension, termination or cancellation. ClickSMS.info reserves the right to suspend the User's service at any stage for any reason it may deem necessary to continue to provide any of its services in a way that may be hindered by the User's status as being a ClickSMS.info Client, financial status of the User or the content of the messages originating from the User. In the event that ClickSMS.info receives complaints from recipients or third parties with respect to the use of the Service, ClickSMS.info additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its clients and application Users. Termination or Cancellation by the User. The User is free to terminate or cancel this Agreement at any time, in accordance with Section 7(E). Obligations Upon Termination and/or Cancellation. Upon any termination, cancellation and/or suspension of this Service Agreement, the User is responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. Payment and other obligations under this Service Agreement are not suspended, stayed, or otherwise affected by a suspension of access to/or use of ClickSMS.info (in whole or in part) where said suspension arises from the User's failure to comply with, or violation of, the terms of this Service Agreement or of any law or legal obligation. Upon termination and/or cancellation, for any reason, the User agrees to immediately cease using ClickSMS.info and remove all ClickSMS.info software and applications on any computer, database, server (local or remote) in your possession or under its control. ClickSMS.info shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below. Financial obligations of ClickSMS.info upon Termination and/or Cancellation. Should the termination of services result in a situation where the User still has credits (or messages that are pre-paid) at any stage, the User shall receive back the monetary value of such credits in full, save any expenses that may be incurred by ClickSMS.info to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement. 11. NO WARRANTIES OR LIABILITIES GENERALLY. AS FAR AS ALLOWED BY LAW, ClickSMS.info (INCLUDING ITS OWNERS, EMPLOYEES, SUPPLIERS, INTERNET SERVICE PROVIDE RS, PARTNERS, AFFILIATES AND AGENTS) SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE INCURRED BY WHOMEVER AND RESULTING FROM USE OF THE SERVICE AND THE INTERNET GENERALLY, ACCESS TO THE ClickSMS.info WEBSITE, ACCESS TO WEBSITES LINKED TO T HE ClickSMS.info WEBSITE, INABILITY TO ACCESS THE ClickSMS.info WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE ClickSMS.info WEBSITE, CONTENT AVAILABLE ON THE ClickSMS.info WEBSITE, SERVICES AVAILABLE FROM THE ClickSMS.info WEBSITE, PRODUCTS AVAILABLE FROM THE CLICK ATELL WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE ClickSMS.info WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO ClickSMS.info'S GROSS NEGLIGENCE AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT ClickSMS.info IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. ClickSMS.info WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO ClickSMS.info AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRA NTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS ClickSMS.info AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION. Whilst ClickSMS.info will ensure that the service is reasonably available at all times, and will at all times endeavor to maintain connections to as many aggregators, gateways and Carriers as are, in its discretion, commercially viable and make all upgrades to the ClickSMS.info API available to The User in a commercially reasonable and timely manner, the User acknowledges that ClickSMS.info cannot guarantee the availability of a Carrier's SMSC. Thus User expressly acknowledges and agrees that use of the service and the internet generally is at its own risk and that ClickSMS.info is provided "as is" and "as available" without any warranties whatsoever, express or implied. ClickSMS.info will use commercially reasonable efforts to make access to ClickSMS.info available to the User, through the required access protocols, but makes no warranty or guarantee that the User will be able to access ClickSMS.info at any particular time or any particular location. Information, ideas and opinions expressed on the ClickSMS.info website should not be regarded as professional advice or the official opinion of ClickSMS.info, and Users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the ClickSMS.info website. ClickSMS.info does not make any warranties or representations that the ClickSMS.info website shall be available at all times. Users acknowledge that the ClickSMS.info website may be unavailable due to updates or other causes beyond the reasonable control of ClickSMS.info, including, but not limited to virus infection, unauthorised access (hacking), power failure or other "acts of God". ClickSMS.info does not make any warranties or representation that content and services available from the ClickSMS.info website shall in all cases be true, correct or free from any errors. ClickSMS.info shall take all reasonable steps to ensure the quality and accuracy of content avail able from the ClickSMS.info website. ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), ClickSMS.info and its affiliates, agents, content providers, service providers, and licensors: (i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF ClickSMS.info GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPER ATION OF ClickSMS.info GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; (ii) SHALL IN NO EVENT BE LIABLE TO The USER OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOL E OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICE GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (The User AGREES TO INDEMNIFY ClickSMS.info PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR IN TERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE); WITHOUT IN ANY WAY LIMITING THE FOREGOING, ClickSMS.info SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TI MES THE LOWEST MONTHLY TRANSACTION FEE APPLICABLE TO SUCH ACCOUNT AND/OR CLAIM IN EFFECT FOR THE MONTHLY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY The User AND/OR The User ALLEGING LIABILITY. HIGH RISK ACTIVITIES. THE ClickSMS.info SER VICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCR AFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF ClickSMS.info COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVIT IES"). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, ClickSMS.info AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES INCLUDING EMERGENCY NOTIFICATION SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, CLIC KATELL'S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. 12. THIRD PARTY BENEFICIARIES Notwithstanding anything to the contrary contained herein, the provisions for "No Warranties and Liabilities" set forth in Section 9 herein, are for the benefit of ClickSMS.info and its affiliates, agents, content providers and service providers and each shall have the right to assert and enforce such provisions directly on its own behalf. 13. INDEMNIFICATION The User agrees to indemnify, hold harmless, and defend ClickSMS.info and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expense s (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates the terms of this Service Agreement or otherwise violates any law, rule, or regulation and (ii) any claims made by third parties arising from your use of the Service, including without limitation any and regulation all third party claims arising from or related to any failure, delay or interruption to the Service. The User agrees to cooperate as fully as reasonably required in the defense of any claim. ClickSMS.info reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User. 14. MISCELLANEOUS The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. In this Agreement, any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa and any reference to a gender includes the other genders. The ClickSMS.info website is hosted, controlled and operated from the Republic of South Africa and therefore the South African law enforced by the South African courts, subject to the arbitration provisions elsewhere in this document, governs the use or inability to use the ClickSMS.info website, its content, services, products and these terms and conditions. Thus this Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and the User does not have any authority of any kind to bind ClickSMS.info in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Service Agreement will b e in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These terms and conditions constitute the whole agreement between ClickSMS.info and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein. 15. ClickSMS.info API SPECIFIC TERMS & CONDITIONS ClickSMS.info offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to ClickSMS.info's Gateway. These terms do not exclude the aforegoing terms in this agreement.
16. ACT Access to the services, content, software and downloads available from the ClickSMS.info website may be classified as "electronic transactions" and therefore users have the rights has, amongst others the duty to disclose the following information:
The time and place data messages, such as e-mail communications between the User and ClickSMS.info, are deemed to have been sent and received and the location from which such data messages originate are governed by what follows below. The information, goods and/or services advertised on the ClickSMS.info website are NOT an offer, but merely and invitation to do business;
Although the time and place of the agreement detailed herein, are concluded and governed by what follows hereunder, the time and place agreements for the sale of goods and/or the provision of services (as advertised on the ClickSMS.info website) are governed by this clause and shall be deemed to have been concluded in Cape Town; and ClickSMS.info may refuse an offer if the User, amongst others, fails to meet the conditions of ClickSMS.info's credit referencing procedure. Users may lodge complaints concerning the ClickSMS.info website with ClickSMS.info at webmaster@ClickSMS.info.com The User and ClickSMS.info agree that:
17. USE OF SITE ClickSMS.info licenses the User to view, download, save and print the content of the ClickSMS.info website, provided that such content is used for private, personal, educational and/or non-commercial purposes only or to view, download, save and print this agreement for legal and/or evidential purposes. Content from the ClickSMS.info website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of ClickSMS.info. Users may only access, browse and use the ClickSMS.info website for legitimate personal or commercial purposes and may not use the ClickSMS.info website or any ClickSMS.info services and/or products for:
The caching of the ClickSMS.info website shall only be allowed if:
If any User uses content from the ClickSMS.info website in breach of the provisions detailed herein:
Hyperlinks to the ClickSMS.info website from any other source shall be directed at the home page of the ClickSMS.info website. Links beyond the ClickSMS.info home page may only be used with ClickSMS.info's prior written consent. ClickSMS.info shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of content, products or services available from the ClickSMS.info website, if such content, products or services was accessed through a hyperlink not directed at the home page of the ClickSMS.info website. Persons that wish to link to pages beyond the home page of the ClickSMS.info website without ClickSMS.info's prior written consent shall do so at their own risk and indemnify ClickSMS.info against any loss, liability or damage that may result from the use of such hyperlinks. ClickSMS.info's non-liability for deep linking is based on the fact that deep links bypass these terms and conditions. Users may quote small and reasonable amounts of content available from the ClickSMS.info website and only if such a quote is placed in inverted commas and acknowledged. No person may, without the prior written consent of ClickSMS.info, frame the ClickSMS.info website in any manner whatsoever. Apart from bona-fide search engine operators and use of the search facility provided on the ClickSMS.info website by Users, no person may use or attempt to use any technology or applications (including web crawlers, robots or web spiders) to search, collect or copy content from the ClickSMS.info website for any purpose whatsoever, without the prior written consent of ClickSMS.info. E-mail addresses, names, telephone numbers and fax numbers published on the ClickSMS.info website may not be incorporated into any database, used for electronic marketing or similar purposes. No permission is given or should be implied that information on the ClickSMS.info website may be used to communicate unsolicited communications to ClickSMS.info. All licenses and/or permissions granted in terms of this section are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by ClickSMS.info at any time without prior notice or reasons. 18. EXTERNAL LINKS ClickSMS.info may provide hyperlinks to websites not controlled by ClickSMS.info ("target sites") and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or services of such target sites. ClickSMS.info does not editorially control the content, products and/or services on target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use, inability to use or content available on or through target sites. 19. SECURITY ClickSMS.info shall take all reasonable steps to secure the content of the ClickSMS.info website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, ClickSMS.info does not make any warranties or representations that content shall be 100% safe or secure. ClickSMS.info is under no legal duty to encrypt any content or communications from and to Users and is also under no legal duty to provide digital authentication of any pages on the ClickSMS.info website. Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, robots or spyware, to the ClickSMS.info website or the server and computer network that support the ClickSMS.info website. Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the ClickSMS.info website, whether on purpose or negligently, shall, without any limitation, indemnify and hold ClickSMS.info harmless against any and all liabilities, damages, risks and losses that ClickSMS.info and its partners/affiliates may suffer as a result of such delivery, attempt or damaging code. Users may not develop, distribute or use any device or programme designed to breach or overcome the security measures of the restricted pages, products and services on the ClickSMS.info website and ClickSMS.info reserves the right to claim damages from any and all persons involved, directly and indirectly, in the development, use and distribution of such devices or programmes. Users who commit any of the offences shall, notwithstanding criminal prosecution, be liable for all resulting liabilities, losses, destruct ion or damages suffered and/or incurred by ClickSMS.info and its partners/affiliates due to or related to these illegal actions.20. INTERCEPTION OF COMMUNICATION the User agrees to ClickSMS.info's right to intercept, block, filter read, delete, disclose and use all communications (including all "data messages") send or posted by the User to the ClickSMS.info website, its staff and employees. The User agrees and acknowledges that the consent provided by the User above satisfies the "writing" requirement. 21. CODES OF CONDUCT The User warrants that it will comply with the following codes of conduct as required by all services providers who operated service in any of the following territories. The codes of conduct are incorporated herein as is specifically stated: United Kingdom South Africa WASPA SMS Advertisi ng Guidelines: United State of America
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