Vodacom Messaging Terms and Conditions

1. ACCESS TO THE SERVICE

Vodacom  (Pty) Ltd ("Vodacom") 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 Vodacom SMS service and use of such service.

2. CUSTOMER'S RESPONSIBILITIES AND LIABILITY

2.1 WASPA Code of Conduct

Customers shall be responsible for familiarising themselves and adhering to the WASPA Code of Conduct (“the Code”) at all times. In this regard it is recorded that the  Code is a standard document available on www.waspa.org.za/code/codeconduct.shtml that was drafted to to ensure that members of the public can use mobile services with confidence, assured that they will be provided with accurate information about all services and the pricing associated with those services.s. 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 Vodacom 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

Vodacom 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. Vodacom advises testing any bulk SMS messages to a single cell number before sending as bulk, to avoid any complications.

2.5 Spamming

Vodacom 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 Vodacom. The customer hereby indemnifies Vodacom (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 (Independent Communications Authority of South Africa), 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 the Code;

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

Vodacom 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 Vodacom the charges as set out in the application form. Should there be a disputed transaction, Vodacom 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 Vodacom and the respective GSM Operators shall be deemed to be prima facie proof of SMS messages sent. Vodacom 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 Vodacom SMS service is enabled through Vodacom agreements and relationships with various service providers and their agreements with Network Operators in various countries. Vodacom 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 Vodacom 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 Vodacom. SMS messages submitted through the relevant Vodacom 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, Vodacom cannot guarantee the delivery of SMS messages that may be affected by possible network outages and errors on the part of any GSM network. Vodacom shall not be liable to refund the customer for undeliverable SMS messages. Vodacom 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 Vodacom'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 Vodacom's Liability

Due to the nature of the SMS service, Vodacom cannot be held responsible for loss incurred through the use of any of the Vodacom 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 Vodacom SMS service and all information and other content (including third party, information and content) provided by, included in or accessible from the Vodacom website, are provided "as is" (to the extent allowed by law) and are subject to change at any time without notice to the customer. To the fullest extent permitted by law, Vodacom 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 Vodacom website. In no event shall Vodacom 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 Vodacom SMS services infrastructure or systems, unless the aforementioned was caused by Vodacom;’s gross negligence.

6. INTELLECTUAL PROPERTY RIGHTS

The information, media, systems and content provided by Vodacom through the Vodacom SMS service for the customer's use, including all intellectual property rights therein, is the sole property of Vodacom 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 Vodacom 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 Vodacom in its reasonable opinion believe that the customer has contravened or breached any provision of these terms and conditions. Vodacom 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 Vodacom 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. Vodacom 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 Vodacom 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