DigitalSMS Terms and Conditions
The following are the terms and conditions for use of the DigitalSMS Service (“DigitalSMS Service” or “the Service”) by any customer (hereafter referred to as “the User”).
These terms and condition are binding and enforceable against all persons that access the DigitalSMS web site or any part thereof (the DigitalSMS web site) in terms of section 11 of the electronic communications and transactions (ECT) act 25 of 2002.
TABLE OF CONTENTS
DEFINITIONS AND INTERPRETATION
"DigitalSMS" means DIGITAL SMS MARKETING CC (CC Reg No. 2006/085972/23) .
"DigitalSMS web site" means the DigitalSMS site located at www.digitalsms.co.za or www.digitalsms.net and includes any part or element thereof.
"User" means any person who enters or uses the DigitalSMS web site, notwithstanding the fact that such a person only visited the home page of the DigitalSMS web site.
Notwithstanding the fact that hyperlinks in these terms and conditions to copyright notices and legislation should be deemed part of these terms and conditions in terms of section 11 of the ECT Act, the fact that some or all of the hyperlinks may be non-operational, shall not play a role in determination of the validity and interpretation of these terms and conditions.
The Service consists of a browser interface, SMS gateway access, e-mail facility, data encryption, data transmission, data access, data storage and, if applicable, synchronization software.
DigitalSMS makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. DigitalSMS reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time and without notice and with immediate effect. All fees paid to DigitalSMS when such termination occurs are addressed in the sections below.
Messages shall be deemed to have been delivered when DigitalSMS has delivered/sent the messages to the immediate destination that DigitalSMS 's gateway is programmed to do. DigitalSMS does not guarantee delivery on behalf of Mobile telephone networks.
To open an account for usage of the Service, the User must complete the registration process by providing DigitalSMS 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.
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. DigitalSMS will not be held liable to any third party claims and/or actions taken with respect to services offered.
The User agrees to notify DigitalSMS immediately of any unauthorized use of its account or any other breach of security.
DigitalSMS shall take all reasonable steps to protect the personal information of Users and for the purpose of this clause, "personal information" shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from: http://www.polity.org.za/html/govdocs/legislation/2000/act2.pdf
DigitalSMS may electronically collect, store and use the following personal information of Users:
name and surname;
DigitalSMS collects, stores and uses the abovementioned information for the following purposes:
communicate requested information to the User; and
Information detailed above is collected either electronically by using cookies or is provided voluntarily by the User. Users may determine cookie use independently through their browser settings.
DigitalSMS may collect, maintain, save, compile, share, disclose and sell any information collected from users, subject to the following provisions:
DigitalSMS shall not disclose personal information from Users unless the User consents thereto;
DigitalSMS owns and retains all rights to non-personal statistical information collected and compiled by DigitalSMS.
THE USER HEREBY GRANTS DIGITALSMS THE RIGHT TO SEND THE USER COMMUNICATION VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT DIGITALSMS DEEMS IMPORTANT FOR THE USER TO KNOW, RELATING TO THE SERVICE.
All transactions will be processed in South African Rands (ZAR).
Fees. In consideration for the use of DigitalSMS's services, the User shall pay to DigitalSMS a transaction for messages delivered or partially delivered using any available delivery method, at the applicable rate then in effect.
Payment. Transaction fees are due and payable at the time of or before DigitalSMS delivers a message to the User's recipients. Payment shall be deemed to have been made as soon as the fee is available in DigitalSMS 's bank account.
The User is free to terminate or cancel this Agreement at any time, and for any reason. The User can request a refund to the value of any message unit credits that may be left over in the User's account. , however there is a 10% charge on all refunds. No refunds will be made for any fees which are not related to SMS message credits.
When you click to make a purchase with us legal obligations arise and your right to refund of monies charged to your credit card or paid in any other way agreed by us, are limited by our terms & conditions. You must not make any purchase through this site unless you understand and agree all our terms and conditions. Once payment is made for the purchase, it is deemed that you have read and understood the terms and conditions for such purchase. If you have any queries please contact us before making any purchase for any service through this website.
Once DigitalSMS has received proof of payment for a purchase, your account will be credited with the applicable amount of message credits.
DigitalSMS shall take all reasonable steps to secure the content of the DigitalSMS web site and the information provided by and collected from Users from unauthorised access and/or disclosure. However, DigitalSMS does not make any warranties or representations that content shall be 100% safe and secure;
DigitalSMS is under no legal duty to encrypt any content or communications from and to the DigitalSMS web site and is also under no legal duty to provide digital authentication of any page on the DigitalSMS web site;
Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, to the DigitalSMS web site or the server and computer network that support the DigitalSMS web site. Notwithstanding criminal prosecution, any person who delivers any damaging code to the DigitalSMS web site, whether on purpose or negligently, shall, without any limitation, indemnify and hold DigitalSMS harmless against any and all liability, damages and losses DigitalSMS and its partners / affiliates may suffer as a result of such damaging code;
Users may not develop, distribute or use any device to breach or overcome the security measures of the Service and DigitalSMS reserves the right to claim damages any and all persons concerned with a security failure or breach; and
Any User who commits any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by DigitalSMS and its partners / affiliates.
Virtual Card Services process all credit card transactions. All credit card transactions are 128 bit Secure Socket Layers (SSL) encrypted. The company registration documents and the site's registered domain name are checked and verified by Thawte, ensuring the cardholder and merchant that nobody can impersonate VCS to obtain confidential information.
Virtual Card Services is committed to providing secure online services. All encryption complies with international standards. Encryption is used to protect the transmission of personal information when completing online transactions.
Virtual Card Services Internet servers are protected by firewalls and intrusion detection systems.
DigitalSMS does not have access to credit details.
Virtual Card Services continually reviews and enhances its security in line with technological changes.
The User is free to terminate or cancel thi Agreement at any time, and for any reason. The User can request a refund to the value of any message unit credits that may be left over in the User's account. , however there is a 10% charge on all refunds. No refunds will be made for any fees which are not related to SMS message credits.
Cooling-off period: Users may return goods and/or services within 7 (seven) days as detailed in section 44 of the ECT Act and only if such goods or services are not detailed in section 42(2) of the ECT Act .
Beginning of the Service: Remote activation of goods and/or services by DigitalSMS shall be regarded as consent by the User as required by the provision of section 42(2)(d) of the ECT Act .
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 DigitalSMS and its partners pride themselves 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".
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:
Use the Service in connection with junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);
Harvest or otherwise collect information about others, including email addresses, without their consent;
Create a false identity mobile phone address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
Transmit through the Service, associate with the Service or publishing with the Service unlawful, harassing, libelous , abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
Libel, defame or slander any person, or infringe upon any person's privacy rights;
Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots , or any other harmful or deleterious programs;
Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or
Engage in any other activity that DigitalSMS believes could subject it to criminal liability or civil penalty or judgment.
GENERALLY. SUBJECT TO THE PROVISIONS OF SECTIONS 43(5) AND 43(6) OF THE ECT ACT , IF APPLICABLE, AND AS FAR AS ALLOWED BY LAW, DIGITALSMS (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 DIGITALSMS WEBSITE, ACCESS TO WEBSITES LINKED TO THE DIGITALSMS WEBSITE, INABILITY TO ACCESS THE DIGITALSMS WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE DIGITALSMS WEBSITE, CONTENT AVAILABLE ON THE DIGITALSMS WEBSITE, SERVICES AVAILABLE FROM THE DIGITALSMS WEBSITE, PRODUCTS AVAILABLE FROM THE DIGITALSMS WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE DIGITALSMS WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO DIGITALSMS 'S GROSS NEGLIGENCE AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT DIGITALSMS IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. DIGITALSMS WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO DIGITALSMS AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS DIGITALSMS AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
The User acknowledges that DigitalSMS cannot guarantee the availability of a Carrier's SMSC. Thus the User expressly acknowledges and agrees that the use of the Service and the Internet generally is at its own risk and that DigitalSMS is provided “as is” and “as available” without any warranties whatsoever, express or implied.
Modification of Terms. DigitalSMS frequently updates, modifies, and otherwise continually seeks to improve the DigitalSMS services and products. Such changes often dictate that DigitalSMS simultaneously modify DigitalSMS 's Terms and Conditions of Use. As such, DigitalSMS shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the DigitalSMS 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 cancelled 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 DigitalSMS ; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by DigitalSMS at any time if, at DigitalSMS 's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by DigitalSMS shall be effective immediately upon notification by DigitalSMS 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, DigitalSMS 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.
DigitalSMS 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 DigitalSMS Client, financial status of the User or the content of the messages originating from the User.
In the event that DigitalSMS receives complaints from recipients or third parties with respect to the use of the Service, DigitalSMS 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.
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 DigitalSMS (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 DigitalSMS and remove all DigitalSMS software and applications on any computer, database, server (local or remote) in your possession or under its control. DigitalSMS shall have no obligation to the User after any termination or cancellation of this Service Agreement.
Access to the services, content, software and downloads available from the DigitalSMS website may be classified as "electronic transactions: as defined in terms of the ECT Act and therefore users have the rights detailed in Chapter 7 of the ECT Act and DigitalSMS has, amongst others the duty to disclose the following information:
The full name and legal status of the website owner: DIGITAL SMS MARKETING CC (CC Reg. No. 2006/085972/23)
Street Address: 11 Morris Street, Hillsboro, Bloemfontein, 9301
Postal Address: 11 Morris Street, Hillsboro, Bloemfontein, 9301
Physical Address for receipt of legal service: 11 Morris Street, Hillsboro, Bloemfontein, 9301
Main Business: SMS Messaging solutions.
Official email address of the DigitalSMS website is: firstname.lastname@example.org
The manual published in terms of the Promotion of Access to Information Act 2 of 2000 of the owner of the DigitalSMS website may be downloaded from: http://www.polity.org.za/html/govdocs/legislation/2000/act2.pdf
Manner of payment: All products have the following payment options available: Credit card and Direct Wire Transfer
Access to, saving and printing of terms: These terms may be saved by users by clicking on the save or print buttons on the browser/Word/Acrobat Reader Toolbar (as the case may be). Terms specific to certain products and/or services, may be printed and saved by opening the web page that details the terms and clicking on the browser/Word/Acrobat Reader Toolbar (as the case may be).
Dispatch and delivery: Upon the conclusion of a transaction, a pop-up notice informs the User of the applicable dispatch.
The manner and period within which Users may access and maintain a full record of transactions: A full record of each transaction shall be disclosed to the User, and Users are encouraged to print and/or save this information. Transaction records will also be disclosed to Users on request for a limited period from the date of the transaction.
Alternative Dispute resolution: Subject to urgent and/or interim relief, all disputes in connection with, or arising from, access to the DigitalSMS website, inability to access the DigitalSMS website, the service and content available on the DigitalSMS website and these terms and conditions shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of Southern Africa and such arbitration proceedings shall be conducted in Bloemfontein and in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as agreed between attorney and own client.
APPLICABLE AND GOVERNING LAW