Terms and Conditions
The following are the terms and conditions for use of the DiGiMessaging Service ("DiGiMessaging Service" or "the Service") by any customer (hereinafter referred to as "the User").
BY PLACING DiGiMessaging PRODUCTS ON A WEBSITE AND/OR ACCESSING ANY PART OF THE DiGiMessaging 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, DiGiMessaging'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 DiGiMessaging, 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 APPLY
DEFINITIONS AND INTERPRETATION
The DiGiMessaging website means the DiGiMessaging website located at www.DiGiMessaging.com including any page, part or element thereof, as owned and operated by DiGiMessaging.
User/User means any person or entity who enters or uses the DiGiMessaging website, notwithstanding the fact that such person only visits the home page of the DiGiMessaging 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.
DiGiMessaging makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. DiGiMessaging reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time. All fees paid to DiGiMessaging when such termination occurs are addressed in the sections below.
Messages shall be deemed to have been delivered when DiGiMessaging has delivered/sent the messages to the immediate destination that DiGiMessaging'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. DiGiMessaging does not guarantee delivery on behalf of Mobile telephone networks of mail servers.
DiGiMessaging lays no claims to its network coverage. Although DiGiMessaging focuses on providing extensive coverage aggregation services, mobile networks may choose from time to time to not be part of DiGiMessaging 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 English Law, DiGiMessaging 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 DiGiMessaging 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 DiGiMessaging products and/or services. As between the parties, the User acknowledges that DiGiMessaging, 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 DiGiMessaging 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. DiGiMessaging will not be held liable to any third party claims and/or actions taken with respect to services offered.
The User agrees to notify DiGiMessaging immediately of any unauthorized use of its account or any other breach of security.
4. MEMBER PRIVACY
It is DiGiMessaging's policy to respect the privacy of the User. DiGiMessaging will not monitor, edit, or disclose any personal information about the User or the User's DiGiMessaging account, including its contents, without the User's prior permission unless DiGiMessaging 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 DiGiMessaging; (3) enforce this Service Agreement or protect DiGiMessaging's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by DiGiMessaging; (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. DiGiMessaging's service transmits the Sender's name (From field) and/or email address with each message that the end-user sends.
The User agrees that DiGiMessaging may access its account, including its contents, as stated above or to respond to service or technical issues.
THE USER HEREBY GRANTS DiGiMessaging THE RIGHT TO SEND THE USER COMMUNICATION VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT DiGiMessaging DEEMS IMPORTANT FOR THE USER TO KNOW, RELATING TO THE SERVICE.
in violation of the terms and conditions then we will transmit the user details to the other party or the police.
5. MESSAGE AND OTHER LIMITATIONS
DiGiMessaging assumes no responsibility for the deletion or failure to store information. DiGiMessaging 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, DiGiMessaging 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. DiGiMessaging 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 DiGiMessaging 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".
6. 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:
i. Use the Service in connection with junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);
ii. Harvest or otherwise collect information about others, including email addresses, without their consent;
iii. Create a false identity mobile phone header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
iv. 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;
v. Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
vi. Libel, defame or slander any person, or infringe upon any person's privacy rights;
vii. Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
viii. Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
ix. 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;
x. Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or
xi. Engage in any other activity that DiGiMessaging believes could subject it to criminal liability or civil penalty or judgment.
7. FEES, PAYMENT AND YOUR RIGHT FOR REFUND
Fees. In consideration for the use of DiGiMessaging's services, the User shall pay to DiGiMessaging 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. DiGiMessaging 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 DiGiMessaging to add the SMS credits to the User's account.
Payment. Transaction fees are due and payable at the time of or before DiGiMessaging delivers a message to the User's recipients, via every method of de livery based upon the billing plan selected by DiGiMessaging. Payment shall be deemed to have been made as soon as the fee is available in DiGiMessaging's bank account.
Credit Card Payment. If the User has elected to pay for the Service by credit card, and DiGiMessaging does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by DiGiMessaging. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment, when such payment is made. DiGiMessaging 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.
Should there be a cost increase AFTER the User has purchased message units from DiGiMessaging; DiGiMessaging 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 DiGiMessaging 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 DiGiMessaging is dependant on various telecommunications networks and institutions for the delivery of its messages and that DiGiMessaging may adjust its prices and offering, should the prices be adjusted due to reasons which are not in DiGiMessaging's control. DiGiMessaging 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 DiGiMessaging; DiGiMessaging 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 DiGiMessaging 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. DiGiMessaging may extend this period on a case-by-case basis at its sole discretion.
Refunds for SMS message credits: The User agrees that no refund is payable whatsoever.
Refunds for branding fees, licenses, monthly administration fees, and any other fee that the User pays to DiGiMessaging, 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. DiGiMessaging is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on DiGiMessaging's coverage pages from time to time, and DiGiMessaging 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 DiGiMessaging 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 DiGiMessaging 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.
8. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION
Modification of Terms. DiGiMessaging frequently updates, modifies, and otherwise continually seeks to improve the DiGiMessaging services and products. Such changes often dictate that DiGiMessaging simultaneously modify DiGiMessaging's Terms and Conditions of Use. As such, DiGiMessaging shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the DiGiMessaging 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 DiGiMessaging; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by DiGiMessaging at any time if, in DiGiMessaging DiGiMessaging's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by DiGiMessaging shall be effective immediately upon notification by DiGiMessaging 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, DiGiMessaging 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. DiGiMessaging 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 DiGiMessaging Client, financial status of the User or the content of the messages originating from the User.
In the event that DiGiMessaging receives complaints from recipients or third parties with respect to the use of the Service, DiGiMessaging 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 DiGiMessaging (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 DiGiMessaging and remove all DiGiMessaging software and applications on any computer, database, server (local or remote) in your possession or under its control. DiGiMessaging shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below.
Financial obligations of DiGiMessaging 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 DiGiMessaging to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement.
9. NO WARRANTIES OR LIABILITIES
IF APPLICABLE, AND AS FAR AS ALLOWED BY LAW, DiGiMessaging
(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 DiGiMessaging WEBSITE, ACCESS TO WEBSITES LINKED TO T HE DiGiMessaging WEBSITE, INABILITY TO ACCESS THE DiGiMessaging WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE DiGiMessaging WEBSITE, CONTENT AVAILABLE ON THE DiGiMessaging WEBSITE, SERVICES AVAILABLE FROM THE DiGiMessaging WEBSITE, PRODUCTS AVAILABLE FROM THE CLICK ATELL WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE DiGiMessaging WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO DiGiMessaging'S GROSS NEGLIGENCE AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT DiGiMessaging IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. DiGiMessaging WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO DiGiMessaging AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRA NTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS DiGiMessaging AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
Whilst DiGiMessaging 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 DiGiMessaging API available to The User in a commercially reasonable and timely manner, the User acknowledges that DiGiMessaging 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 DiGiMessaging is provided "as is" and "as available" without any warranties whatsoever, express or implied. DiGiMessaging will use commercially reasonable efforts to make access to DiGiMessaging available to the User, through the required access protocols, but makes no warranty or guarantee that the User will be able to access DiGiMessaging at any particular time or any particular location.
Information, ideas and opinions expressed on the DiGiMessaging website should not be regarded as professional advice or the official opinion of DiGiMessaging, and Users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the DiGiMessaging website.
DiGiMessaging does not make any warranties or representations that the DiGiMessaging website shall be available at all times. Users acknowledge that the DiGiMessaging website may be unavailable due to updates or other causes beyond the reasonable control of DiGiMessaging, including, but not limited to virus infection, unauthorised access (hacking), power failure or other "acts of God".
DiGiMessaging does not make any warranties or representation that content and services available from the DiGiMessaging website shall in all cases be true, correct or free from any errors. DiGiMessaging shall take all reasonable steps to ensure the quality and accuracy of content avail able from the DiGiMessaging website.
ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), DiGiMessaging 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 DiGiMessaging GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPER ATION OF DiGiMessaging 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 DiGiMessaging 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, DiGiMessaging 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 DiGiMessaging 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 DiGiMessaging 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, DiGiMessaging 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.
10. 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 DiGiMessaging 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.
The User agrees to indemnify, hold harmless, and defend DiGiMessaging 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. DiGiMessaging reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User.
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 DiGiMessaging 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 DiGiMessaging 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 DiGiMessaging 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 be 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 DiGiMessaging and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
13. DiGiMessaging API SPECIFIC TERMS & CONDITIONS
DiGiMessaging offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to DiGiMessaging's Gateway. These terms do not exclude the aforegoing terms in this agreement.
i. DiGiMessaging reserves the right to approve clients and API connections at its sole discretion.
ii. DiGiMessaging encourages the use and publicity of anti-spam policies.
iii. The User will be supplied with a login and password and will need to specify what IP Address range the messages will be posted from. This will ensure that the connection is at all times secure from DiGiMessaging's side. Security measures over and above this will be the User's responsibility.
iv. Although DiGiMessaging will provide API connection specifications and will attempt to keep the specifications accurate and up to date, these specifications may be incomplete and may change from time to time without DiGiMessaging informing the User that it has changed. It is the User's sole responsibility to test the specifications thoroughly on a regular basis, as DiGiMessaging will not accept responsibility for specifications that may be incorrect or incomplete.
14. USE OF SITE
Content from the DiGiMessaging website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of DiGiMessaging.
Users may only access, browse and use the DiGiMessaging website for legitimate personal or commercial purposes and may not use the DiGiMessaging website or any DiGiMessaging services and/or products for:
i. harmful purposes;
ii. illegal purposes;
iii. disclosing, sharing or publishing material that may be offensive, defamatory, regulated, prohibited, infringing or damaging to any person; and/or
iv. the creation, storage and sending of unsolicited commercial communications.
The caching of the DiGiMessaging website shall only be allowed if:
i. the purpose of the caching is to make the onward transmission of the content from the DiGiMessaging website more efficient;
ii. the cached content is not modified in any manner whatsoever;
iii. the cached content is updated at least every 12 (twelve) hours; and
iv. the cached content is removed or updated when so required by DiGiMessaging.
If any User uses content from the DiGiMessaging website in breach of the provisions detailed herein:
i. DiGiMessaging reserves the right to claim damages from the User;
ii. DiGiMessaging reserves the right to institute criminal proceedings against the User; and
iii. DiGiMessaging shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the User or any third party who obtained any content from the User.
Hyperlinks to the DiGiMessaging website from any other source shall be directed at the home page of the DiGiMessaging website. Links beyond the DiGiMessaging home page may only be used with DiGiMessaging's prior written consent.
DiGiMessaging 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 DiGiMessaging website, if such content, products or services was accessed through a hyperlink not directed at the home page of the DiGiMessaging website. Persons that wish to link to pages beyond the home page of the DiGiMessaging website without DiGiMessaging's prior written consent shall do so at their own risk and indemnify DiGiMessaging against any loss, liability or damage that may result from the use of such hyperlinks. DiGiMessaging'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 DiGiMessaging website and only if such a quote is placed in inverted commas and acknowledged.
No person may, without the prior written consent of DiGiMessaging, frame the DiGiMessaging website in any manner whatsoever.
Apart from bona-fide search engine operators and use of the search facility provided on the DiGiMessaging 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 DiGiMessaging website for any purpose whatsoever, without the prior written consent of DiGiMessaging.
E-mail addresses, names, telephone numbers and fax numbers published on the DiGiMessaging 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 DiGiMessaging website may be used to communicate unsolicited communications to DiGiMessaging and all rights detailed in 45 of the ECT Act are reserved.
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 DiGiMessaging at any time without prior notice or reasons.
15. EXTERNAL LINKS
DiGiMessaging may provide hyperlinks to websites not controlled by DiGiMessaging ("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. DiGiMessaging 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.
DiGiMessaging shall take all reasonable steps to secure the content of the DiGiMessaging website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, DiGiMessaging does not make any warranties or representations that content shall be 100% safe or secure.
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 DiGiMessaging website or the server and computer network that support the DiGiMessaging website.
Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the DiGiMessaging website, whether on purpose or negligently, shall, without any limitation, indemnify and hold DiGiMessaging harmless against any and all liabilities, damages, risks and losses that DiGiMessaging 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 DiGiMessaging website and DiGiMessaging 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.
17. INTERCEPTION OF COMMUNICATION
The User agrees to DiGiMessaging's right to intercept, block, filter read, delete, disclose and use all send or posted by the User to the DiGiMessaging website, its staff and employees.
18. RIGHTS OF SERVICE PROVIDER ON FRAUDS
The User bears full responsibility for using the Sender ID function. DiGiMessaging reserves the right to cancel, suspend, terminate service in view of reasonable cause for any illegal activity exhibited by the User, including but not limited to sending phishing messages containing malicious contents or links to such contents, with or without representing a third party's name as the Sender ID.
The User agrees that DiGiMessaging does not provide any guarantee towards the compatibility or the ability to deliver to any network, especially to CDMA networks or to countries where special system exist to disallow sending of SMS with spoofed Sender ID across.