These Terms (“Terms”) govern your (“User”) use of the SMS MESSENGER (PTY) LTD (“Provider” or “Supplier”) website located at the domain name www.smsmessenger.co.za (“ Website”). By accessing and using the Website, the User agrees to be bound by the Terms set out in this legal notice. If the User does not wish to be bound by these Terms, the User may not access, display, use, download, or otherwise copy or distributes content obtained at the Website. The provisions of the Electronic Communications and Transactions Act (25 of 2002) is applicable to this website
2 Updating of these Terms
Provider may change, modify, add to or remove from portions or the whole of these Terms. Changes to these Terms will become effective when the changes are posted to this Website. Provider will notify the User of the changes via email or by posting a prominent notice on the Website. The User’s continued use of this Website following the posting of changes or updates will be considered notice of the User’s acceptance of these Terms, including any changes or updates.
3 Supplier of goods or services details
In accordance with the disclosure requirements of the Electronic Communications and Transactions Act (“ECTA”), 25 of 2005, the supplier of goods or services offered for sale, hire or exchange by way of an electronic transaction, makes the following information available to consumers:
3.1 Supplier is:
3.3 Supplier is a member of the supplier’s self-regulatory body, Phone: +27.11.476.7710, Email: waspa.org.za and accredited with Phone: +27.11.476.7710, Email: waspa.org.za
3.4 Supplier subscribes to the suppliers’ code of conduct available at www.waspa.org
The information in this clause is up to date as at the 2013/09/16 and the user is advised to regularly check the website and these terms to ensure that the information contained herein is up to date.
4 Goods or Services:
SMS Messenger is a supplier of bulk SMS gateway and associated services. The provision of the services through the website constitutes a legally binding transaction between SMS Messenger and the user, which transaction shall be governed by these terms.
5 Terms of account with SMS Messenger
5.1 The website allows the user to create an account to use the services of SMS Messenger .
5.2 Goods and services offered through this website by Supplier are strictly on an “as is” basis for and at the cost as more particularly set out on the website or otherwise agreed to between the supplier and the user.
5.3 The user shall create an account, protected by a user name and password which shall give the user access to and serve as the user’s identification for the services provided by the supplier. Once a user name and password has been issued the account will be activated. It remains the responsibility of the user to ensure that the a new user name and password is requested from the supplier in the event that the user suspects that its user name and password has been compromised and is no longer confidential. The supplier shall not be liable for any transactions performed by third parties as the result of the user’s user name and password being used by unauthorized third parties.
5.4. User agrees and understands that SMS Messenger may, with or without notice and in the sole discretion of the SMS Messenger, cease to provide the services supplied to the user, which shall include the right to delete the account or the content of the user contained in such account, as well as the right to terminate the user’s right to access the website as well as the services offered on the website. The supplier is further entitled to cancel any existing orders and terminate the account of the user in terms of the provisions of this clause.
5.5 The User understands that the services provided on the website are not available to minors and acknowledge that by using he services provided on the website the user confirms that he or she is not a minor and capable of entering into a validly binding agreement and that no minors shall be allowed to create an account.
5.6 The User warrants that the information used to create this account is both true and accurate.
Payment can be made online by credit card through a payment system and the supplier shall take all reasonable steps to ensure that the payment is system is secure and that all transactions are securely processed. The supplier shall however not be liable for any security breaches which are in any way caused by the user, including but not limited to failure by the user to ensure that electronic devices used to access the website and payment services are sufficiently secure. The user herewith authorities the supplier to charge the services supplied to the credit card provided by the user for the purpose of payment for such services.
7 Complaints and disputes
7.1 Provider offers Users to file complaints via the “Contact us” service of the website www.smsmessenger.co.za The Provider and user agree that all disputes shall be referred to the highest level of management within the structures of the provider and the parties shall attempt to resolve disputes in good faith between them.
7.2 Should the parties be unable to resolve the dispute, the matter may be referred to arbitration which will be conducted confidentially and in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA).
7.3 Should the dispute not be resolved in arbitration it may be referred to the Eastern Cape High Court, Port Elizabeth.
8 Copyright and Intellectual Property Rights
8.1 Provider provides certain information on the Website. Content displayed at the Website is provided by Provider, its affiliates or subsidiary, or any other third party owners of the content (“Content”). All the proprietary works, and the compilation of the proprietary works, belong to the Provider, its affiliates or subsidiary, or any third party owners of the rights (“Owners”), and the Content is protected by South African and international copyright laws. The copyright may extend to the arrangement, coordination or modification of material or content on the website which is not in itself the intellectual property of SMS Messenger.
8.2 The Providers may make any changes to the Website, the Content, or to products or services offered through the Website at any times and without notice to the User. All rights in and to the Content is reserved and retained by the Owners. Except as specified in these Terms, the User is not granted a license or any other right including under Copyright, Trademark, Patent or other Intellectual Property Rights in or to the Content.
9 Limited Licenses to General Users
9.1 Provider grants the User, a non-exclusive, non-transferable, limited and revocable (reversible) right to access, display, use, download and otherwise copy the current and future Content for personal, non-commercial and information purposes only.
9.2 This Website and the Content may not be reproduced or otherwise exploited for any commercial purpose without the express prior written consent of Provider.
9.3 The license does not allow the User to collect product or service listings, descriptions or other information displayed here, and does not allow any derivative (copied or derived) use of this Website or the Content for the benefit of another merchant. The User may not frame the Website or the Content without the express written consent of Provider.
9.4 Provider and the Owners do not offer products or services to minors. If you are under the age of 18, you may act upon any offers on the Website.
9.5 Provider and the Owners, their affiliates or subsidiary reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
9.6 Any unauthorized use terminates this license.
10 Limited Licenses to Registered Users
10.1 Provider allows and processes the registration of certain corporate users (“Registered User”) at the Website.
10.2 Subject to these Terms, a non-exclusive, non-transferable, limited and revocable right is granted to Registered Users to access, display, use, download and otherwise copy the current and future Content for the purposes agreed to by the Registered User and Provider in their respective agreements.
10.3 This Website and the Content may only be:
For the specific purposes set out in this agreement.
10.4 The license does not allow the Registered User to collect product or service listings, descriptions or other information displayed here. It also does not allow any derivative use of this Website or the Content for the benefit of another merchant.
10.5 The Registered User may not frame the Website or the Content without the express written consent of Provider.
10.6 Provider and the Owners, their affiliates or subsidiary reserve the right in their sole discretion to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
10.7 Any unauthorized use terminates this license.
11 Limitation of liability:
11.1 Subject to sections 43(5) and 43(6) of ECTA, and to the extent permitted by law, the Website and all Content on the Website, are provided on an “as is” basis, and may include inaccuracies or typographical errors and Provider, Owners, suppliers, employees, directors partners, affiliates and agents will not be liable for any damage, or loss or liability of any nature incurred by whoever as a result of any action or omission. The Owners make no warranty or representation, whether express or implied as to the availability, accuracy or completeness of the Content, or any third-party content accessible via an Internet link and the website is used entirely at the User’s own risk. This includes but is not limited to implied warranties timelines, fitness for purpose, accuracy correctness, completeness or non-infringement of rights of the website, content or services.
11.2 Neither the Provider nor any holding company, affiliate or subsidiary or any owners or directors of the Provider will be held responsible for any damage of any kind, related to the use of, or the inability to access or use the Content or the Website or any functionality, or of any linked website to the extent permissible by law. Links to other websites are provided for the benefit of the user and is for information purposes only and shall not be construed as an endorsement by SMS Messenger of the content or services contained in linked websites. SMS Messenger shall not be liable for anything whatsoever arising from the linking of websites or the information contained in such linked websites. The linking of websites to the SMS Messenger website without the prior written consent of SMS Messenger is strictly prohibited.
11.3 The Provider furthermore reserves the right to at any time make changes to or discontinue any functionality, feature or aspect of the website or services, which shall include, but not be limited to content, products or services offered as well as the manner in which such products or services are accessed or used, as well as the period of availability of such products, service or the website.
11.3 The user agrees that the SMS Messenger (including its owner, director, partners, employees, agents, suppliers or any other person representing the Provider) shall be indemnified and held harmless for any liability, claims, damages or other actions of whatsoever nature and howsoever arising from the website and / or services offered and/or content, without limitation, including but not limited to loss of profit, consequential, direct or indirect damages. This shall include the legal or other costs arising from the use of the website or services.
12 Anti-Spam Policy
In line with the “Anti-Spam” policy of the Provider the services shall not be used for sending unsolicited messages or communications, notifications or alerts.
To facilitate the implementation of the anti-spam policy the Provider automatically scans incoming messages for key words (such as “stop” or “delete”) and such messages will be removed to a file location which allows for the user to import the messages back to the user. The User therefore warrants and consents to the use of his / her / its contacts when using the system and indemnifies the Provider from any liability arising out of unsolicited messages, material or other communications.
13 Privacy, access to and use of information
13.1 Provider receives various types of information (“Information”) from Users who access the Website, including personal information as detailed in the Promotion of Access to Information Act (“PAIA”), Act 2 of 2000, and as detailed in section 1 of the ECTA (“Personal Information”).
13.2 Provider may electronically collect, store and use Personal Information, including name, contact details, surfing patterns, email, IP address. Provider voluntarily subscribes to section 51 of the ECTA and endeavors to treat Personal Information received by Provider accordingly.
13.4 Although it is the policy of the Provider to utilize as little personal information as is possible to enable it to provide its services to users and as a result limiting the amount of personal information made available, the user accepts that the use of personal information is required to enable the Provider to supply its services and consents to the use of such personal information as set out herein. The use of the website and services shall be construed as consent by the user that personal information may be so utilized.
13.5 Interception of communications. Despite such undertaking, it is possible for Internet-based communications to be intercepted.
• Without the use of encryption, the Internet is not a secure medium and privacy cannot be ensured. Internet e-mail is vulnerable to interception and forging.
• The Owners will not be responsible for any damages you or any third party may suffer as a result of the transmission of confidential or disclosed information that you make to the Owners or Provider through the Internet, or that you expressly or implicitly authorize the Owners to make, or for any errors or any changes made to any transmitted information.
13.6 To ensure acquaintance with and awareness of the privacy measures and policies of the Provider, the User is urged to take care to read and understand the underlying privacy clauses incorporated in these Terms.
14 Privacy - casual surfing
14.1 The User may visit the Website without providing any personal information.
14.2 The User accordingly grants express written permission for the Website servers in such instances collecting the IP address of the User computer, but not the email address or any other distinguishing information.
14.3 This information is aggregated (added up) to measure the number of visits, average time spent at the Website, pages viewed, etc.
14.4 Provider uses this information to determine use of the Website, and to improve Content.
14.5 Provider assumes no obligation to protect this information, and may copy, distribute or otherwise use the information.
15 Privacy - unsolicited information
15.1 If the User posts unsolicited content or other information (“Information”) to the Website and does not indicate otherwise the User grants to the Owners a:
• perpetual (everlasting);
• irrevocable (irreversible); and
• fully sub-licensable,
right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Information throughout the world in any media.
15.2 The User grants to the Owners the right to use the name that the User submits in connection with such Information, if they choose. The User warrants:
• that the User owns or otherwise controls all of the rights to the Information that the User posts;
• that the Information is accurate;
• that by the supply of the Information to Provider;
• the User does not violate this Policy and does not infringe the rights of any person or entity; and
• that the User indemnifies the Owners for all claims resulting from the receipt by the Provider of the Information the User supplies to it.
15.3 Provider may monitor and edit or remove any Information, where posted to public pages. The Provider takes no responsibility, and assumes no liability for any Information posted by the User or any third party.
16 Privacy-solicited information the User gives to Provider
16.1 Provider requires certain Personal Information necessary to process transactions if the User requires any of Provider’s products or services.
16.2 Provider receives and stores all Information, including Personal Information which the User enters on the Website or gives to Provider, in any other way. The User may choose not to provide certain Personal Information, but that may limit the services or products that the User may wish to obtain from this Provider.
16.3 Provider provides its products and services in conjunction with its affiliates and subsidiaries. In this regard and unless specifically restricted by the User from the license below, the User and when entering into the specific transactions in question expressly grants in writing to the Owners and the Provider a:
• irrevocable; and
• fully sub-licensable,
right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Information throughout the world in any media including (insert purposes, eg transact with user, registration of user etc).
16.4 The User’s Information that is required by affiliates and subsidiaries to give effect to transactions that the User choose to enter into, is shared with those entities.
17 Privacy - promotional information
Provider aspires to provide first-class service to its customers, which requires Provider providing information to the User about new services or special offers. In each instance, the User is provided an opportunity to opt-out of such information circulars.
18 Privacy- business transfers
Provider may enter into business arrangements and its customer base is one of the more valued assets. In such an event, customer Information will be one of the transferable assets.
19 Privacy- lawful purposes
When the Provider is served with due legal process requiring the delivery of Personal Information, it has the legal duty to abide by that demand, and will do so. Provider may also impart Personal Information if permitted or required to do so by law. The Provider may also disclose information to protect SMS Messenger’s content, website, equipment as well as its rights and the rights of employees.
20 Privacy-surveys and statistical profiles
20.1 Provider understands that efficiency and customer care translates to good service. Provider may periodically conduct online customer care surveys to enable the updating of service standards.
20.2 When it conducts a survey, Provider must inform the User how the information gathered will be used, and provide the User with the opportunity to opt-out from such surveys.
20.3 Despite terms to the contrary, Provider may chose to use Personal Information to compile profiles for statistical purposes and may choose to trade with such profiles and statistical data, as long as the profiles or statistical data cannot be linked to any specific data subject, including the User, by a third party.
21 Privacy- storage
Personal Information will be stored for as long as it is used and for a period of one year, together with a record of the Personal Information and the specific purposes it was collected for. Personal Information will be destroyed once it has become obsolete (out of date or unusable).
22 Privacy- interception
Subject to the Regulation of Interception of Communications Act (“RIC”), Act 70 of 2002, the User agrees that the Provider may intercept, block, read, delete, disclose and use all communications sent or otherwise communicated to the Provider, its employees, directors and agents. User agrees that his or her consent satisfies the requirements of ECTA and RIC for consent in “writing” as defined.
23 Choice of Law
23.1 This Website is controlled, operated and administered by Provider from its offices as set out herein before within the Republic of South Africa.
23.2 These Terms will be governed by the laws of the Republic of South Africa, and the User shall not use this website or services in contravention of South African law.
23.3 The user acknowledges that access to and use of the website and services provided thereon, outside of South Africa and in countries or territories where the use of the services provided is illegal, is prohibited.
23.4 The User shall further ensure that the use of any services provided by the Provider shall comply with law applicable to the recipient of such services or communication and shall not violate the rights of the recipient. This includes compliance with all relevant European Union and national member state laws and directives and codes of conduct, including the Mobile Marketing Association, in the event of users operating within the European Union. Users shall comply with any further relevant code of conduct for the wireless communication industry, to which the Provider is subject, including Wireless Applicators Service Providers Association (WASPA).
23.5 If any of the provisions of these Terms are found by a court of competent jurisdiction to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the intent of these Terms, and the remainder of these Terms will continue in full force.
23.6 These Terms constitutes the entire agreement between the Provider and the User with regard to the use of the Content and this Website.
24 Unauthorized Use
24.3 Use of the website and services of the Provider in a way which is or can reasonably be construed as obscene, offensive, defamatory, misleading, fraudulent or resulting in harassment, including but not limited to content of a sexual, racist, discriminatory or sexist nature is unauthorized.
24.4 The unauthorized use of the website and services may result in termination of your account.
25 Contact Details
In the event that you need to contact Provider for purposes related to these Terms and Conditions, please use the following:
076 725 5715
© SMS MESSENGER (PTY) LTD
2013/09/16 This Website was most recently updated on the 2013/09/16