SMS.com.na - Terms Of Use

Last updated: 01 August 2018


SMS.com.na provides users with a variety of tools and resources to collect visitor mobile numbers and to create, launch, and manage online SMS campaigns (the “Services”).

This service may not be used for the sending of unsolicited SMS (sometimes called “spam”).

SMS.com.na provides its services to you subject to the following terms and conditions. If you visit or conduct electronic transactions in any way at SMS.com.na, By signing the registration document or after logging in for the first time, you accept these terms and conditions.

The following are the terms and conditions for use of the Services.

1. Services and Support

1.1.The Services are provided subject to this Agreement, as it may be amended by SMS.com.na, and any guidelines, rules or operating policies that SMS.com.na may establish and post from time to time (the “Agreement”).

By posting updated versions of the Agreement at the SMS.com.na web site, or otherwise providing notice to you, SMS.com.na may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.

1.2.The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.

1.3.You may use our Services, on a non-exclusive basis, solely in strict compliance with these Terms which may be updated from time to time, and applicable law, including:

1.4.Using our Services as needed to develop your software applications that interface with our

Services (“Your Applications") or provide Services through Your Applications,

1.5.Making our Services available to End Users of Your Applications in connection with the use of each of Your Applications, and

1.6.Otherwise using our Services solely in connection with and as necessary for your activities under these Terms.

1.7.Both the number of SMS messages sent and the number of characters of data transferred are metered by SMS.com.na. Normal SMS.com.na accounts allow you to send an unlimited number of SMS messages provided your account has enough credit.

1.8.You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify a valid phone number, email address and password for your SMS.com.na account.

1.9.You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. SMS.com.na reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

2. Restrictions and Responsibilities

2.1.This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for business purposes only, strictly no personal use unless prior approval from SMS.com.na given.

2.2.You acknowledge and agree that the Services and the SMS.com.na company names and logos and all related product and service names, design marks and slogans, are the property of SMS.com.na or its affiliates or suppliers (collectively, the “Marks”).

You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of SMS.com.na.

Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in SMS.com.na or its third party suppliers, as the case may be.

2.3.You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, theft, fraud, privacy, obscenity, or defamation).

You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party.

You hereby agree to indemnify and hold harmless SMS.com.na against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services.

Although SMS.com.na has no obligation to monitor the content provided by you or your use of the Services, SMS.com.na may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.4.The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Namibian, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.

2.5.In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to SMS.com.na. SMS.com.na may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.

2.6.SMS.com.na will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties.

2.7.Except as agreed by SMS.com.na and you in writing, we may periodically delete your Customer Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.

2.8.You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if:

(i)we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request,

(ii)to enforce our agreements and policies,

(iii)to protect the security or integrity of our services and products,

(iv)to protect ourselves, our other customers, or the public from harm or illegal activities, or

(v)to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.

2.9.You will comply with Anti-Spam and Privacy legislation and guidelines, applicable to the jurisdictions in which messages are sent and received.

2.10.You may not use SMS.com.na to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.

2.11.You may not use SMS.com.na to send message campaigns that link to or display nudity, obscene content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we may deem inappropriate.

3. Termination

3.1.Terms Period. The period of these Terms will commence on the date these Terms are accepted by you and continue for twelve months. This is called the Initial Period. These Terms will automatically renew for additional one-year periods (each, a “Renewal Period”), unless either you or SMS.com.na provides notice of non-renewal at least thirty (30) days prior to the end of the Initial Period or a Renewal Period.

3.2.Termination and Suspension of Services. Either party may terminate your account for any reason upon 60 days written notice to the other party. Either party may also terminate or suspend your account in the event the other party commits any material breach of these Terms and fails to fix that breach within 15 days after written notice of that breach. If we terminate these Terms due to your material breach, we may terminate or suspend of your account(s) as well.

3.3.In addition to suspension of our services for non-payment of fees, we may also suspend our Services immediately for cause if:

3.3.1.you violate (or give us reason to believe you have violated) our Acceptable Use Policy;

3.3.2.there is reason to believe the traffic created from your use of our Services or your use of our Services is fraudulent or negatively impacting the operating capability of our Services;

3.3.3.we determine, in our sole discretion, that providing our Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide our Services; or

3.3.4.subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend our Services to your account, we will make a reasonable attempt to notify you.

3.3.5.If SMS.com.na terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.

3.4.SMS.com.na may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

4. Warranty Disclaimer; Remedies

Use Of The Services And Any Reliance By You Upon The Services, Including Any Action Taken By You Because Of Such Use Or Reliance, Is At Your Sole Risk. Sms.Com.Na Does Not Warrant That The Services Will Be Uninterrupted Or Error Free; Nor Does It Make Any Warranty As To The Results That May Be Obtained From Use Of The Services. The Services Are Provided “As Is” And Sms.Com.Na Disclaims All Warranties, Express Or Implied, Including, But Not Limited To, Implied Warranties Of Merchantability, Fitness For A Particular Purpose And Noninfringement.

Your Sole And Exclusive Remedy For Any Failure Or Non-Performance Of The Services Shall Be For Sms.Com.Na To Use Commercially Reasonable Efforts To Adjust Or Repair The Services.

5. Limitation of Liability

To The Maximum Extent Permitted By Law, Under No Circumstances And Under No Legal Theory, Tort, Contract, Or Otherwise, Shall Sms.Com.Na Or Any Of Its Underlying Service Providers, Business Partners, Information Providers, Account Providers, Licensors, Employees, Distributors Or Agents (Collectively Referred To For Purposes Of This Section As “Sms.Com.Na”) Be Liable To You Or Any Other Person For Any Money Damages, Whether Direct, Indirect, Special, Incidental, Cover, Reliance Or Consequential Damages, Even If Sms.Com.Na Shall Have Been Informed Of The Possibility Of Such Damages, Or For Any Claim By Any Other Party. In The Event That Notwithstanding The Foregoing, Sms.Com.Na Is Found Liable To You For Damages From Any Cause Whatsoever, And Regardless Of The Form Of The Action (Whether In Contract, Tort (Including Negligence), Product Liability Or Otherwise), The Liability Of Sms.Com.Na To You Will Be Limited To The Amount You Paid For The Service. Some Jurisdictions Do Not Allow The Exclusion Or Limitation Of Incidental Or Consequential Damages, So This Limitation And Exclusion May Not Apply To You.

6. SMS Service

6.1.SMS.com.na provides an SMS service that sends messages to mobile phones using established carriers and aggregation companies. The provision of the SMS service is subject to the following Terms of Service.

6.2.You acknowledge that SMS.com.na delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by his subscribed mobile network provider. You acknowledge that, depending on the recipient’s mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully. SMS.com.na neither claims nor guarantees either availability or performance of this service. While SMS.com.na makes every effort to deliver the message promptly, SMS.com.na accepts no liability for transmission delays or message failures.

6.3.SMS.com.na debits transmitted SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if SMS.com.na’ investigations have produced evidence of technical problem or error. Because SMS.com.na cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, SMS.com.na will not refund undeliverable SMS messages to you.

6.4.You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you.

7. Export of Services or Technical Data

You may not remove or export from Namibia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Namibia or any other applicable country.

8. Miscellaneous

8.1.If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2.SMS.com.na and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

8.3.No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind SMS.com.na in any respect whatsoever.

8.4.In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.

8.5.The Agreement shall be governed by the laws of the Namibia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in Namibia courts located in Windhoek, Namibia.

9. System Requirements

It is understood that in order to use SMS.com.na, a Windows PC or Mac with Internet Explorer 7.0, Safari 3.0 and Firefox 2.0 or higher must be used. Additionally, a stable connection to the Internet is recommended. SMS.com.na may work in a limited manner on other platforms, but there is no guarantee of functionality at any time. Additionally, SMS.com.na may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but there is no guarantee of full functionality on any web browsers.

10.Compliance rules for sending messages.

All SMS.com.na customers must follow the rules of the MTC SMS Code of Conduct when sending messages through the service. Accordingly, we require the following of messages sent through the SMS.com.na system: These guidelines will help ensure that SMS.com.na maintains its reputation and white-listing status with a number of major carriers and whitelisting programs. If at any time your campaign is flagged as SPAM by a carriers subscribers, SMS.com.na reserves the right to cancel your account without notice.

11. Message and Permission Practices

11.1.Messages that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your message campaigns do not generate a number of abuse complaints in excess of industry norms. SMS.com.na, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

11.2.SMS.com.na, at its own discretion, may immediately disable your access without refund to the Services if SMS.com.na believes in its sole discretion that you have violated any of the message and permission practices listed above, or the SMS.com.na Anti-Spam Policy.

12.SMS Message Character Charges

A standard SMS message has a maximum of 160 characters. Longer messages are definitely possible, however please be aware that exceeding 160 characters will constitute a ‘second’ message. The end user will see this as 1 long message on their handset.

When a message is longer than 160 characters, this is referred to as a multi-part message as it contains multiple messages (or multiple-parts). The total SMS limit then becomes 153 characters per ‘part’ as the 7 characters are used up by invisible headers and footers which denote which part of the message is being sent (i.e. Part 1 of 2). For example:

If a message is longer than 6 message parts, it will be truncated (see below). If a message contains any characters that aren’t in the GSM 03.38 character set, the message type will be treated as unicode. (https://en.wikipedia.org/wiki/GSM_03.38).

Standard English Characters:

Non-GSM (Unicode) characters:

1 – 160 characters = 1 Message

1 – 70 characters = 1 Message

161 – 306 characters = 2 Messages

71 – 134 characters = 2 Messages

307 – 459 characters = 3 Messages

135 – 201 characters = 3 Messages

460 – 612 characters = 4 Messages

202 – 268 characters = 4 Messages

613 – 765 characters = 5 Messages

269 – 335 characters = 5 Messages

766 – 918 characters = 6 Messages

336 – 402 characters = 6 Messages

13.Pricing and Payment Terms

13.1.You agree to pay the usage fees set forth in your “Rate Schedule or accepted quotation” (which is either our standard schedule of fees, as may be updated from time to time, and/or any other order forms for our Services ordered by you and accepted in writing by us).

13.2.In addition, you agree to pay any applicable support fees in connection with your order of any support services pursuant to our Support Terms. All message delivery prices are subject to change at any time. You are responsible for reviewing the price schedule from time to time and remaining aware of the prices charged by SMS.com.na. SMS.com.na will immediately advise you of price changes by email or SMS. Any objections must be raised within 24 hours for special consideration.

13.3.Taxes. Unless otherwise stated in your Rate Schedule, you are responsible for and shall pay all applicable taxes particularly VAT.

13.4.Payment Terms. Subject to certain credit requirements as determined by us, we may let you pay amounts due under these Terms in arrears. SMS.com.na will invoice the Client on a monthly basis for the previous months’ use of the Product by the Client and any Customers. The Client must pay the invoice within thirty (30) days of the date of the invoice

13.5.Unless you and SMS.com.na agree otherwise in writing, all fees due under these Terms are payable in Namibian dollars. Payment obligations can’t be cancelled and fees paid are non- refundable. if you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee.

The late fee will be either 5% per month, or the maximum amount allowable by law, whichever is less. following the overdue notice, we may also suspend our Services to your account until you pay the amount you are overdue plus the late fee.

13.6.Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.

13.7.Suspension. If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you under this Agreement, we may suspend our Services associated with your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section.

13.8.The Client must pay SMS.com.na’s legal costs (on an indemnity basis) of enforcing any of SMS.com.na’s rights under this Agreement. The Client must also pay fees and expenses payable to any debt collection agency engaged by SMS.com.na to obtain or attempt to obtain payment of account due by the Client.

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