Terms and Conditions
Vodacom Messaging Terms and Conditions
1. ACCESS TO THE SERVICE
Vodacom Service Provider Company (Pty) Ltd ("VSP") shall use all
reasonable endeavours to ensure that the short message service ("SMS
service") is available on a 24 (twenty four) hour, 7 (seven) days a week basis.
The customer is responsible for maintaining all devices and services
necessary to enable access to the relevant VSP SMS service and use of such
service.
2. CUSTOMER'S RESPONSIBILITIES AND LIABILITY
2.1 SMS Code of Practice
Customers shall be responsible for familiarising themselves and
adhering to the SMS Code of Practice at all times as approved by
Vodacom (Pty) Ltd ("Vodacom"). In this regard it is recorded that the
SMS Code of Practice is a standard document available on
www.waspa.org.za/code/codeconduct.shtml that was drafted to govern
the provision of SMS services. As such it must read, for the purposes of
these terms and conditions, in the context of the provision of SMS
services, and all references therein to SMS services shall be deemed,
mutatis mutandis, to be reference to SMS services provided pursuant to
these terms. This code may change from time to time and without
notice to the customer.
2.2 Malicious Disruption and Damage
Should the customer engage in malicious disruption or cause damage
to any VSP services, infrastructure or systems the customer shall be
liable for all damages (whether direct or indirect) and associated costs
resultant from such conduct.
2.3 SMS and MMS Content
The customer accepts full responsibility for the content of messages
transmitted by means of the SMS and/or MMS service and agrees not to submit any
messages for transmission via the SMS and/or MMS service the content of which is
improper, immoral and/or unlawful or which contains any violent,
offensive, discriminatory, illegal or pornographic material. The
customer must ensure that the content of SMS and/or MMS messages do not
cause disturbance or harassment to the recipient thereof. The
Customer must further ensure that the necessary consents,
authorisations and permissions are obtained or granted before making
use of the SMS services
2.4 SMS Content Interpretation
VSP and/or the respective GSM Network Operators shall not be
responsible for refunding the cost of any SMS messages if the cell
phone of the recipient interprets any part of the message differently to
that originally intended by the sender; or if any third party application
used in the creation of sending SMS messages interprets the message
content differently to that originally intended by the sender. VSP
advises testing any bulk SMS messages to a single cell number before
sending as bulk, to avoid any complications.
2.5 Spamming
VSP and the respective GSM Network Operators will not tolerate the
sending of unsolicited messages ("spamming") by the customer. The
customer shall ensure that no SMS messages are sent to recipients
who have advised that they do not wish to receive messages of a
particular and or any kind. Failure to abide by the provisions of this
clause will result in the suspension of access to the SMS service,
without recourse to any fees paid to VSP. The customer hereby
indemnifies VSP (including its agents, shareholders, employees,
officers and subsidiaries) against any claims, loss or damage caused
as a consequence of the failure by the customer to abide by the
provisions of this spamming clause. The customer should furthermore
be aware that spamming is against the regulations laid down by ICASA
(South African Telecommunications Regulatory Authority), who in their
own right are lawfully entitled to take action against any party found
guilty of spamming.
2.6 Message Validity
SMS messages submitted for transmission to the recipient shall have
an assigned validity period of 24 (twenty four) hours during which time
the relevant GSM Network Operator shall at regular intervals, attempt
to effect delivery of the SMS messages unless an alternative validity
period is selected by the client, where available. Should the validity of
the message expire prior to successful delivery, all unsent messages
shall be discarded without notice to the customer.
2.7 The Customer shall:
2.7.1 make freely available to the recipient the terms and conditions
upon which the SMS services are provided.
2.7.2 in exercising its rights and meeting its obligations in accordance
with these terms, ensure that it at all times complies with the
terms and conditions of the License and in particular shall:
2.7.2.1 ensure that any information it obtains or receives in
respect of the Recipients is kept confidential and is not
disclosed, communicated or made accessible to any third
parties;
2.7.2.2 comply with Vodacom's Code of Practice for Consumer
Affairs ("VCPCA") and the SMS Code of Practice;
2.7.2.3 develop and enforce guidelines for handling enquiries
and complaints from its customers.
2.8 The Customer shall :
2.8.1 not be entitled to charge the recipients of the SMS messages;
2.8.2 ensure that the appropriate mechanisms exist to enable a
Recipient to withdraw or cancel consent at any time to receive
SMS messages, whereupon the customer shall cease to transmit
such SMS messages to such recipient;
2.8.3 ensure that it is apparent, on all SMS messages, from whom the
SMS message originates.
2.9 Changes to Service Offerings and Content
VSP reserves the right to modify, enhance, discontinue and further
develop the relevant SMS offering, at any time without prior notice.
3. PROHIBITED USES
3.1 The customer shall not use any of the services provided as a high
volume incoming facility as would traditionally be used in industries
such as vehicle tracking.
4. BILLING
4.1 SMS Billing Methodology
The customer agrees to pay to VSP the charges as set out in the
application form. Should there be a disputed transaction, VSP shall
endeavour to make the necessary investigations to the best of its
abilities and attempt to rectify the discrepancy, but should such
investigation prove to be inconclusive, the message transaction logs,
as maintained by VSP and the respective GSM Operators shall be
deemed to be prima facie proof of SMS messages sent. VSP shall not
be liable to refund credit card transactions and reserves the right to do
so at its sole discretion.
4.2 Credit Limit
The customer acknowledges and accepts that although Credit Limits are put in place, the customer is liable for all and any costs that may exceed this limit, through the use of the service.
5. LIMITATION OF LIABILITY
5.1 Message delivery
The customer acknowledges and accepts that the provision of the
relevant VSP SMS service is enabled through VSP agreements and
relationships with various service providers and their agreements with
Network Operators in various countries. VSP is therefore only able to
act under the conditions imposed through such agreements. A list of
relevant SMS Roaming Partners, from time to time, is available on the
VSP SMS website. The delivery of SMS messages is subject to the
availability and performance of the respective service providers' and/or
GSM Network Operators technical systems and network and cannot be
guaranteed by VSP. SMS messages submitted through the relevant
VSP SMS service will be transferred to the recipient's mobile terminal
within times ranging from a few seconds to a few minutes depending on
the conditions prevalent at the time of submission. SMS message
delivery performance is further subject to the recipient's mobile terminal
being switched on and located within an area that is acceptably
covered by the recipient's GSM Network Operator. Consequently, VSP
cannot guarantee the delivery of SMS messages that may be affected
by possible network outages and errors on the part of any GSM
network. VSP shall not be liable to refund the customer for
undeliverable SMS messages. VSP will however make every effort to
ensure that all SMS messages are delivered. Certain Roaming
Partners prevent their subscribers from receiving SMS messages, for
reasons beyond VSP's control, and in such cases the delivery of SMS
messages is not possible. The sender will be charged for all SMS
messages delivered to the respective GSM Network Operator,
regardless of whether the SMS message is, in fact, delivered by such
GSM Network Operator to the recipient.
5.2 Exclusion of VSP's Liability
Due to the nature of the SMS service, VSP cannot be held responsible
for loss incurred through the use of any of the VSP SMS services,
infrastructure or systems as well as all risks associated with data
security, privacy, availability and reliability of message processing and
transmission. Thus, the customer is fully and exclusively liable for any
and all risks resultant from the use of the said service, infrastructure or
systems
The VSP SMS service and all information and other content (including
third party, information and content) provided by, included in or
accessible from the VSP website, are provided "as is" and are subject
to change at any time without notice to the customer. To the fullest
extent permitted by law, VSP 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 and all
information and other content (including third party information and
content) provided by, included or accessible from the VSP website. In
no event shall VSP be liable for any damages whatsoever, including
but not limited to any direct, indirect, special, consequential 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,
unauthorized use, performance or non-performance of the VSP SMS
services infrastructure or systems, even if VSP has been advised
previously of the possibility of such damages and whether such
damages arise in contract, negligence, delict, under statute, in equity,
at law or otherwise.
6. INTELLECTUAL PROPERTY RIGHTS
The information, media, systems and content provided by VSP through the
VSP SMS service for the customer's use, including all intellectual property
rights therein, is the sole property of VSP and/or third party suppliers and the
customer shall not acquire any rights therein or thereto. Unauthorised
reproduction or distribution of the aforesaid or any portion thereof will be
prosecuted to the full extent of the law.
7. TERMINATION
The customer acknowledges that VSP reserves the right at any time during
the tenure of the agreement to at its sole discretion disable, suspend,
terminate or remove any customer's service, without notice, should VSP in its
reasonable opinion believe that the customer has contravened or breached
any provision of these terms and conditions. VSP may also, at its sole
discretion, at any time, cease to provide the SMS service, or any part thereof
and/or effect developments and/or modifications to the SMS service, in which
event, the customer shall have no claims against VSP as a result thereof.
8. GENERAL
The customer shall be bound by these terms and conditions in all aspects and
shall comply with all laws, regulations and restrictions that apply to the
customer. VSP shall be entitled to modify the said terms and conditions in its
sole discretion from time to time. Any delay in the enforcement of any of terms
by VSP shall not be deemed to be a waiver of such right(s).
9. GOVERNING LAW
The terms and conditions are subject to and shall be interpreted in
accordance with the laws of the Republic of South Africa
