DEFINITIONS AND INTERPRETATION
The words and phrases listed below shall bear the following meanings in these terms and conditions, unless the context clearly indicates otherwise:
“SMSblast” shall mean LinkIT SMS blast Service or any of its subsidiaries or related SMSblast entities;
“end user” or “recipient” means any person or persons, including both natural and juristic entities who receives or is intended to receive any message sent by a User using SMSblast’s services;
“network operator” means any party licensed to install, operate and maintain a cellular telephony network in the territory, and shall include Telkomsel, Indosat, XL, Axsis, Tri, Esia, Flexi and Mobile-8;
“services” shall mean and include all services offered to Users by SMSblast;
“SMS” means a short message service provided by means of a text or data message to the cellular handset either on request of the handset User or via a pre-configured batch process;
"territory" means the Republic of Indonesia;
“User” shall mean any party who makes use of any of the SMSblast services or who uses or visits the SMSblast website;
Any reference to the singular includes the plural and vice versa.
Any reference to persons includes both natural and juristic persons.
Any reference to a gender includes the other gender.
Any clause headings inserted into these terms and conditions have been inserted for convenience only and shall not be taken into account in interpreting the terms and conditions.
Words and expressions defined in any other part of these terms and conditions shall, for the purposes of that part, bear the meaning assigned to such words and expressions in that part.
APPLICATION OF TERMS AND CONDITIONS
Persons using the SMSBLAST website for any reason whatsoever, subject themselves to and agree to the terms and conditions of SMSBLAST when accessing the website as set out herein.
Users accessing these terms and conditions via the SMSblast website shall accordingly be bound by the terms and conditions and in accordance with the provisions of section 11 of the Electronic Communications and Transactions (ECT) Act 25 of 2002. Registration and use of the SMSblast website and / or services shall automatically bind a User to these terms and conditions. Activation of the services shall be regarded as consent by the User to all of these terms and conditions. Should a User not agree to all the terms and conditions of this service agreement, or cannot comply with these terms and conditions, the User should immediately terminate the registration process. The entity that is filled in under “Company” during online registration is the entity that will be bound to these terms and conditions.
Hyperlinks contained in the online publication of these terms and conditions shall be deemed to be part of these terms and conditions in terms of section 11(3) of the ECT Act.
If a User is deemed to have ordered the service, SMSblast’s acceptance is expressly conditioned upon assent to all the terms and conditions, to the exclusion of all other terms. If these terms are considered an offer by SMSblast, acceptance is expressly limited to these terms.
Users agree that all terms and conditions herewith published shall be binding on the User and that should there be a contradiction between product-specific terms and conditions, and these terms and conditions, the product-specific terms and conditions shall apply.
Neither these terms and conditions nor any information or data on the SMSblast website is an offer, but merely an invitation to do business on such terms and conditions. Accordingly, no agreements shall be concluded merely by sending a data message to the SMSblast website or its owners, valid agreements require an acknowledgement of receipt from the SMSblast website or its owners.
SMSBLAST reserves the right to refuse to accept and/or execute an order or request to do business without giving any reasons therefor. SMSBLAST also reserves the right to cancel orders in whole or in part in SMSBLAST sole and absolute discretion. SMSBLAST shall only be liable to refund monies already paid by the User. By using the SMSblast website or communicating with SMSBLAST by electronic means, the User consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be 'in writing'.
CHANGES AND AMENDMENTS
SMSBLAST expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in these terms and conditions or any information on the SMSblast web site without prior notice.
SMSBLAST reserves the right to change and amend the prices and rates quoted on its website without any notice.
The User undertakes to check the SMSblast website frequently and to acquaint themselves with the changes and/or amendments in the information supplied on the web site.
Users should regularly verify which networks are covered. Changes may occur as to which networks are covered.
The delivery of SMS messages is largely dependent on the effective functioning of network operators’ cellular networks, network coverage and the SMS recipient’s mobile handset. SMSblast cannot guarantee the availability of the service or delivery of SMS messages. SMSblast shall make all reasonable endeavours to ensure uninterrupted and continued use of the service.
Network operators may modify, enhance, develop or discontinue components of their services at any time without prior notice, in which event SMSblast shall be entitled to modify, enhance, develop or discontinue its services to Users without notice.
SMSblast shall use its reasonable endeavours to provide the User with advance notice of any modification, suspension or termination of its services and shall endeavour to minimise the duration of any suspension thereof in so far as this is reasonably practicable.
SMSblast reserves the right to change or terminate the services and/ or alter these terms and conditions for provision of the service at any time.
Messages shall be deemed to have been delivered when SMSblast has sent the messages to the immediate destination that it is requested to do including, but not limited to, mobile telephone networks, SMTP or other servers.
USER ACKNOWELDGEMENTS AND UNDERTAKINGS
Users acknowledge and understand that SMSblast acts as a conduit for the provision of information and content. Users acknowledge that SMSblast shall not be responsible or liable for any content transmitted and that full responsibility for content shall rest on the User. Users shall observe all relevant legislation and regulations applicable in their jurisdiction and in the jurisdiction of all persons to whom they cause messages to be delivered. It shall be the sole responsibility of Users to ensure awareness of all applicable laws, regulations and Codes of Conduct to which they may be subject and to ensure compliance therewith.
Users operating in the European Union shall comply with all relevant laws, directives and Codes of Conduct in force and applicable to them, including, but not limited to, EU Directive 2002/58/EC, Directive 2000/31/EC, Directive 95/46/EC, Directive 93/13/EC and all national member state laws promulgated in terms thereof as well as the Mobile Marketing Association Code of Conduct available at http://www.mmaglobal.com.
Users shall furthermore ensure that all information and content produced or generated by a User for transmission or delivery by means of the SMS service shall comply with any relevant code of conduct for the wireless industry to which SMSblast itself subscribes and is bound, including, but not limited to, the WASPA Code of Conduct located at http://www.waspa.org.za/code/codeconduct.shtml. Users shall comply with the provisions of the WASPA code and shall not do, nor omit to do, anything that would result, directly or indirectly, in any breach by SMSblast or by the User of any requirement or provision of the code or any applicable legislation, regulations or network usage policies, failing which SMSblast shall be entitled to immediately suspend or terminate the provision of services to the User and the User shall have no further claim of any nature against SMSblast whatsoever, including claims for re-imbursement, refund, compensation or damages. Users hereby indemnify SMSblast against any fine imposed on SMSblast or any damages suffered by SMSblast as a result of any act or omission of a User that amounts to a breach of the WASPA Code. Upon notification of any such fine or damages, Users agree to immediately pay the amount of such fine or damages to SMSblast. Any amount not paid to SMSblast within 24 hours of notification thereof shall accrue interest at the maximum rate permitted in law.
Users shall ensure that all information and content provided through the SMS service conforms in all respects with the WASPA Code of Conduct and it shall be the responsibility of Users to familiarise themselves with the WASPA Code.
Users may not use, or knowingly allow others to use, the SMS service for any purpose that may bring SMSblast’s name into disrepute, or for any purpose that, in SMSblast’s sole and absolute discretion, is improper, immoral or undesirable.
Users shall not permit, do, nor omit to do, anything which might have the effect of prejudicing or impeding the bona fide activities of SMSblast or the interests or goodwill of SMSblast, nor any network operator
Users may not use SMSblast’s services to send messages without reasonable cause nor for the purpose of causing annoyance, inconvenience or distress to any person.
In the event of any transgression of any applicable law, regulation, code of conduct, or any provision of these terms and conditions, or in the event of any complaint against a User be received by SMSBLAST, then SMSBLAST may in its sole and unfettered discretion remove numbers from the database of a User and/or suspend or terminate services to a User without a refund of credits and without prejudice to any other rights that it may have in law or in terms of these terms and conditions.
Users acknowledge and agree that all messages sent may be stored and can be audited by SMSblast or any other person acting on behalf of SMSblast at any time to ensure compliance with these terms and conditions and any applicable law, regulations or code of conduct.
REGISTRATION AND SECURITY
To register to make use of the services, a User must complete the registration process and must provide SMSblast with up to date, complete and accurate information as requested by SMSblast. Failure to provide accurate and complete information on registration may result in termination of the services. A User may also be required to choose a Username and password. Users are responsible for maintaining the confidentiality of their Usernames and passwords and Users undertake not to divulge their Username and passwords to any other person. A User is entirely responsible for any and all activities that occur under its account and a Users shall be strictly liable to make payment of all charges incurred under its account whether or not these charges are incurred by the User or any other person, authorised or unauthorised, intentionally or unintentionally, or as a result of any virus, hack or security breach.
Users agrees to notify SMSblast immediately of any unauthorized use of its account or any other breach of security.
It is expressly prohibited for any person, business, or entity to gain or attempt to gain unauthorised access to any page on this web site, or to deliver or attempt to deliver any unauthorised, damaging or malicious code to this web site. Any person who delivers or attempts to deliver any unauthorised, damaging or malicious code to this web site or attempts to gain unauthorised access to any page on this web site shall be held criminally liable, and in the event that SMSBLAST should suffer any damage or loss, civil damages will be claimed.
In the event that a company wishes to replace a person/employee using a specific SMSBLAST account, and wishes to prevent this person from accessing the account, the company shall inform SMSBLAST in writing of this change, and change all details on the account accordingly.
In the event that a disgruntled employee has sole access to a SMSBLAST account, and the company wishes to bar this access, it shall provide SMSBLAST with a written "take down notice" including the following:
- -a. the full names and address of the complainant;
- -b. the written or electronic signature of the complainant;
- -c. identification of the right that has allegedly been infringed;
- -d. identification of the material or activity that is claimed to be the subject of unlawful activity;
- -e. the remedial action required to be taken by the service provider in respect of the complaint;
- -f. telephonic and electronic contact details, if any, of the complainant;
- -g. a statement that the complainant is acting in good faith;
- -h. a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct; and
Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for -damages for wrongful take-down.
A service provider is not liable for wrongful take-down in response to a notification.
In the event that a SMSBLAST account is transferred from one company to another, the former company shall inform SMSBLAST in writing of this change, and change all details on the account accordingly. If the Username is the former company name, a new account shall be opened.
In the event that a User forgets his password, and/or his contact details used for password recovery has changed (e-mail address, mobile number), and he requests a password change, mobile number change or e-mail address change, SMSBLAST will do the following: Call or e-mail the existing addresses on the account. If there is a positive response from these, the changes requested will be effected. If there is no response or a negative response, the User may be required to re-register.
SMSblast will not monitor, edit, or disclose any personal information about the User or the User's SMSblast account, phonebook, message content and MSISDN’s, other than in the normal course of the use of the services, without the User's prior permission unless SMSblast has a bona fide belief that such action is necessary to conform to legal requirements or comply with legal process; protect and defend the rights, property or legally protectable interest of SMSblast, the User or other third party; enforce any of the provisions of these terms and conditions or protect SMSblast's business or reputation. The User agrees that SMSblast may access its account, and message contents in order to respond to service or technical issues and may communicate with the User from time to time for purposes including, but not limited to communicating information regarding any updates, upgrades, notices, or other information.
A recipient of a message has the right to know the identity of the sender, and this will be disclosed on request to the recipient.
Users agrees that SMSBLAST may make use of a User's contact information for non-personal statistical purposes, may share User contact information with business partners and that SMSBLAST shall retain the copyright in databases of contact information of Users.
Users agree that they shall not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of end users including but not limited to names, addresses, email addresses, landline and mobile telephone numbers and shall not disclose the personal information of end users to any third party save without the express consent of the end user or where specifically required by law to do so.
Where the personal data of any EU member state subject is transferred to SMSblast in a non-EU member state for processing, SMSblast undertakes to ensure technical and organizational security measures that provide a level of protection appropriate to the risks represented by the processing of such data and in order to protect such data against accidental or unlawful destruction, accidental loss, alteration, unauthorized disclosure or access or any other unlawful form of processing. For further information on SMSblast’s compliance with the provisions of the EU Data Protection Directive 95/46/EC, please request a copy of SMSblast data protection policy for your country.
PAYMENT AND PRICES
SMSblast charges are located online at http://smsblast.linkit360.com/pricing and may be provided as a schedule to any other format of these terms and conditions. Network service providers’ charges for use of their networks and for SMS services may differ in respect of individual network operators and may be varied by network operators from time to time and without prior notice to SMSblast or its Users. SMSblast may vary its charges for SMS messages from time to time and without prior notice to Users. In the event that a network(s) introduce reciprocal charges, SMSBLAST retains the right to increase the number of credits needed per message, for that specific network(s).
Payment security: SMSBLAST use secure third party payment gateways of PayPal, Bank Transfer, and Credit Card.
Cooling-off period: Users have the right to return sms credits purchased from this site within 7 days.
The User has the right to review, correct and cancel electronic transactions before the User effects payment and/or places an order.
The number of credits used per message depends on the destination and the messaging route used. This number is subject to change without notice, and is indicated on the "coverage" link. The cost of a credit consists of the message cost (network operator), database, User care and handling cost.
One SMSBLAST credit allows you to send one SMS message, provided that networks do not introduce reciprocal charges. The cost of a credit consists of the message cost (network operator), database, User care and handling cost.
Without prejudice to any other right that it may have in law, SMSBLAST shall have the right to suspend or disable the operation of any User account and the provision of services to any User where payment of all charges have not been made in full by the due date, or where SMSBLAST reasonably suspects that payment has been made or effected by fraudulent means.
USER WARRANTIES AND USER OBLIGATIONS
Users warrant that:
recipients of any commercial messages have a recent prior commercial relationship with the User and would reasonably expect to receive marketing communications from the originator; and/or recipients have either requested the receipt of messages from the User or consented thereto;
they shall comply with all applicable laws, regulations, network operator requirements or code of conduct, including the WASPA code of conduct, which may be applicable in their jurisdiction and the jurisdiction of all persons to whom they cause messages to be delivered;
they shall include their own contact details and identifying particulars in their messages to ensure that complaints are directed at them and not at the network operator;
they shall not send unlawful, abusive, harassing, threatening or obscene messages to any end user or any other person or persons, including both natural and juristic entities.
they shall not engage in any fraudulent act in connection with any of the services offered by SMSblast nor in connection with payment therefor.
Each subscription service, individual program or application administered to an end user must be offered on an "opt-in basis." In addition, each User must also offer a convenient, easy-to-use and conspicuous method for an end user to opt-out from any subscription service, individual program or application.
Where a User breaches any of these terms and conditions, including terms relating to payment of any amount due to SMSBLAST then, without prejudice to any of its legal rights, SMSBLAST shall be entitled to, inter alia:
cancel its agreement with the User;
suspend or terminate the provision of services to the User;
suspend, disable or terminate the User’s account/s;
sue for specific performance by the User; or
Where a User account is suspended or terminated due to any breach of these terms and conditions, SMSBLAST reserves the right to also suspend or terminate all other accounts registered by, or on behalf of, such User, as well as suspend or terminate any account registered by any other person or persons whom SMSBLAST, in its sole and unfettered discretion believes is affiliated with the User concerned.
LIMITATION OF LIABILITY, WARRANTEES AND INDEMNITIES
The provisions of this section specify the entire liability of SMSblast whether arising in contract, delict or otherwise and shall survive termination of this agreement for any reason.
THE USER HEREBY INDEMNIFIES AND HOLDS SMSBLAST HARMLESS AGAINST ANY AND ALL DAMAGES, LIABILITIES, FINES AND RISKS THAT MAY FOLLOW FROM THE TRANSGRESSION OF THESE TERMS AND CONDITIONS.
SMSBLAST SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF WHATSOEVER NATURE ARISING FROM THE USE OR INABILITY TO USE THE SMSBLAST WEBSITE OR THE SERVICES OR CONTENT PROVIDED FROM AND THROUGH THE WEBSITE. FURTHERMORE, SMSBLAST MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLIED OR OTHERWISE, THAT, AMONGST OTHERS, THE CONTENT AND TECHNOLOGY AVAILABLE FROM THE WEBSITE ARE FREE FROM ERRORS OR OMISSIONS OR THAT THE SERVICE WILL BE 100% UNINTERRUPTED AND ERROR FREE.
The SMSblast web site is supplied on an "as is" basis and has not been compiled or supplied to meet the User's individual requirements. It is the sole responsibility of the User to satisfy itself prior to entering into this agreement with SMSBLAST that the service available from and through the website will meet the User's individual requirements and be compatible with the User's hardware and/or software.
Users are fully and exclusively liable for any and all risk resultant from the use of the services.
Users agree to hold SMSblast harmless and indemnify SMSblast fully against any claim by any third party, including message recipients or end users, as a result of any systems failure, message delivery failure, message corruption, interruption or termination of services, breach of privacy or breach of data security.
Users indemnify and hold SMSblast harmless against all damages, awards, penalties or legal costs claimed or imposed by any party as a result of any action, commission or omission by a User that constitutes a breach or contravention of any legislation, regulations, code of conduct (including the WASPA Code of Conduct) or network provider codes of practice or acceptable usage policies.
Users indemnify and hold SMSblast harmless against any claims, actions or damages from any party as a result of the fraudulent or unauthorised use of the User’s Username and password or loss thereof.
SMSblast shall not be liable to Users in any circumstances for any indirect, contingent or consequential loss (including, but without being limited to, loss of revenue, loss of business or loss of profits) sustained or incurred by the User, howsoever arising.
SMSblast services are provided "as is" and are subject to change at any time without notice to Users. To the fullest extent permitted by law, SMSblast disclaims all representations and warranties (express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, and non-infringement of proprietary rights) as to the services.
Without derogating from the aforegoing, in no event shall SMSblast be liable for any damages whatsoever, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, 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, whether such damages arise in contract, delict, under statute, in equity, at law or otherwise.
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 these terms and conditions is found to be unenforceable or invalid, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall not be affected by such unenforceability or invalidity and shall remain enforceable and applicable.
ECT ACT AND DISCLOSURE OF INFORMATION
Access to the services, content, software and downloads available from the SMSblast 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 SMSblast has, amongst others the duty to disclose the following information:
The full name and legal status of the website owner: PT. LinkIT
These terms and conditions apply to all websites operated by SMSblast including the following websites: http://www.SMSblast.com; http://SMSblast.2way.co.za; http://www.titbits.co.za; http://www.SMSblast.co.uk; http://usa.SMSblast.com; http://www.SMSblast.com/int/; http://SMSblast.com.es and http://SMSblast.de and including any page or part thereof.
Main business: SMS Messaging services and solutions.
Records of transactions: Records of transactions may be obtained from Celerity Systems on request, or online at the relevant Credit History page.
All content, trademarks and data on this web site, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to SMSBLAST, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to the User herein, all other rights to all intellectual property on this site is expressly reserved.
SMSblast shall grant a 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 SMSblast services. The User may 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 SMSblast products and/or services. The User acknowledges that SMSblast, 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 services 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 elsewhere in these terms and conditions. It is the responsibility of the User to test the software and services should they wish prior to entering into this agreement.
Content from the SMSblast website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of SMSblast.
LINKING AND FRAMING
Any third party site may link to this web site provided that such a link is directed at the home page of this web site. It is expressly prohibited for any person, business, entity or web site to link to any page other than the home page of this web site, without the prior written approval of SMSBLAST.
SMSBLAST may provide links to the User only as a convenience and the inclusion of any link does not imply SMSBLAST's endorsement of such sites.
Linked web sites or pages are not subject to the control of SMSBLAST. SMSBLAST shall not be held responsible or liable, directly or indirectly, in any way for the contents, use, or inability to use or access any linked web sites or any links contained in a linked web site
It is expressly prohibited for any person, business, entity, or web site to frame any page on this web site, including the home page, in any way whatsoever, without the prior written approval of SMSBLAST.
Apart from bona-fide search engine operators and use of the search facility provided on the SMSblast 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 SMSblast website for any purpose whatsoever, without the prior written consent of SMSblast.
The use of non-malicious search technology, such as 'web-crawlers' or 'web-spiders', to search and gain information from this web site is not permitted if such technology will result in slowing down this web site's server or copyright infringement of any data and information available from this web site. Data and information may only be used as provided for in these terms and conditions. E-mail addresses, names, telephone numbers and fax numbers published on the SMSblast 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 SMSblast website may be used to communicate unsolicited communications to SMSblast and all rights detailed in 45 of the ECT Act are reserved.
INTERCEPTION OF COMMUNICATION
Subject to the provisions of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the User agrees to SMSblast's right to intercept, block, filter read, delete, disclose and use all communications (including all Ôdata messages" as defined in the ECT Act ) send or posted by the User to the SMSblast website, its staff and employees.
These terms and conditions shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa. The SMSblast website is controlled and operated from the Republic of South Africa, and thus South African Law governs the use or inability to use the web site.
These terms and conditions constitute the entire agreement between SMSBLAST and the User.
Any failure by SMSBLAST to exercise or enforce any right or provision of these terms and conditions shall in no way constitute a waiver of such right or provision.