TERMS AND CONDITIONS
1.1 For purposes of these Online Terms, the
following terms shall have the following meanings:
1.1.1 "Amendments" means any amendments made from time
to time to these Online Terms or any document prepared
by SMSDirect CC relating thereto;
1.1.2 "Application" means the Online Application
documentation to be completed to be registered for the
Online Services or other Services;
1.1.3 "Client" means the party, registered for the
Online Services or other Services;
1.1.4 "User ID" means the Client user name and/or
number to access the Online Services;
1.1.5 "Digital Signature" means any distinctive mark
in electronic form or any process employed by SMSDirect
CC to authenticate or approve an instruction given
1.1.6 "Guest" means any user of the Website who is not
1.1.7 "Hyperlink" means any graphic, icon or text on
the Website linked by internet protocol technology to
any other website or web page, whether on the Website or
any other website;
1.1.8 "Information" means any information collected by
SMSDirect CC on its own behalf or on behalf and on the
instructions of a Client;
1.1.9 "Instruction" means an instruction given online
or otherwise by a User to SMSDirect CC, for SMSDirect CC
to perform Services;
1.1.10 "Online" means via the Website;
1.1.11 "Online Services" means the services provided by
SMSDirect CC to Users via the Website;
1.1.12 "Online Terms" means these Online terms and
conditions, as amended from time to time;
1.1.13 "PIN" means the User personal identification
number to access the Online Services;
1.1.14 "Services" means any Services performed by
SMSDirect CC, including Online Services;
1.1.15 "Session" means the uninterrupted period during
which the User has access to the Online Services, from
time to time;
1.1.16 "Specified" means displayed on the Website;
1.1.17 "Submit" or "Submission" means a positive act on
the part of a User regarding transmission of information
via the Website or by electronic mail to SMSDirect CC
and shall include the clicking on any icon, "button",
graphic or Hyperlinked text on the Website or any
current or future functionality of similar effect.
1.1.18 "SMSDirect CC" means SMSDirect CC, registration
1.1.19 "SMSDirect CC System" means the information
technology infrastructure underlying the Online
Services, owned or managed by SMSDirect CC;
1.1.20 "User" means a Guest or a Client, as the case
1.1.21 "Website" means this and other websites
(including all its constituent web pages) on which
SMSDirect CC provides its Online Services from time to
time, including all linked pages in respect of whose
content SMSDirect CC exercises control over.
1.2 Whenever inconsistencies arise in the
interpretation of the Entire Agreement as far as it
relates to the Online Services, the provisions of the
Online Terms shall prevail.
1.3 Any reference in these Online Terms to a clause
shall, unless otherwise indicated, refer to such clause
in these Online Terms.
2. EFFECTIVE DATE
2.1 The effective date shall be the date on which
the User signs up for a service.
2.2 The Service will only commence on payment by the
User of the fees for the Service, as detailed in the
3.1 In these Online Terms, all references to User
shall include reference to a Guest, provided that a
Guest shall under no circumstances obtain any of the
rights granted to Users in these Online Terms.
3.2 The rights of a Guest shall be limited to
accessing and viewing such information provided on the
Website for which no User ID and PIN is required.
4. FUNCTION OF ONLINE TERMS
4.1 The Online Terms are confined to the Online
Services. Any access to and use of other Online services
provided by SMSDirect CC are subject to and governed by
whatever terms and conditions apply to such services,
irrespective of the User being able to access and use
such services via the Website, the User ID or PIN.
4.2 In addition to applicable statutory provisions,
the Online Services are governed by and subject to the
provisions of the :
4.2.1 Online Terms; and
4.2.2 any notices or information posted on the Website
governing the Online Services.
4.3 Users are hereby referred to the important
provisions of clause 19 regarding SMSDirect CC's
disclaimer and limitation of liability.
5. ONLINE REGISTRATION
5.1 Users are required to complete and Submit the
Application to become Users;
5.2 SMSDirect CC, in its sole and absolute
discretion and without stating reasons therefore, shall
have the right to reject any Application.
5.3 SMSDirect CC may perform identity checks on
Users from time to time and Users hereby authorise
SMSDirect CC, as far as may be required by law, to
perform such checks.
6.1 These Online Terms become binding on the User on
accessing the Website and be binding in terms of the
provisions of the Electronic Communications and
Transactions Act 25 of 2002. Alternatively, should these
provisions be held to be invalid for whatever reason,
these Online Terms will be deemed to have been accepted
by the User on the occurrence of the first of the
6.1.1 submission of the Application; or
6.1.2 selection of a hyperlink on the Website; or
6.1.3 utilisation of the Online Services in any manner
or form; or
6.1.4 reliance made or action taken based on any
information provided on the Website.
6.2 Without affecting the validity of deemed
acceptance in terms of clause 6.1 and without imposing
any duty on SMSDirect CC, Users may be required to
submit acceptance of the Online Terms and/or Amendments,
from time to time, in writing.
6.3 Whenever contractual terms, disclaimers or
notices are displayed or made accessible on the Website,
not requiring a Submission from the User to be accepted,
such contractual terms, disclaimers or notices shall be
deemed to be accepted by the User unless the User
immediately ends the Session without performing any
further Instruction and informs SMSDirect CC, within 24
hours, of his non-acceptance of the contractual terms,
disclaimer or notice in question.
6.4 By accepting these Online Terms and Conditions,
the user authorizes SMSDirect to send data messages to
his registered mobile number and/or email address.
7. USER ID AND PIN
7.1 On acceptance by SMSDirect CC of the Application
submitted by the User, the User will be supplied with a
User ID and an initial PIN by such means and in such
format as SMSDirect CC may determine from time to time.
7.2 All Online Services are subject to SMSDirect CC
having accepted the application and having issued a User
with a User ID and PIN.
7.3 The User undertakes to ensure that the PIN and
User ID are neither easily accessible nor disclosed to
anyone. Storing the User ID and/or PIN on a computer or
network will be regarded as prima facie negligent for
purposes of evidence with regard to unauthorized
7.4 The User shall report any actual or potential
unauthorised access to or use of the User ID and/or PIN
to SMSDirect CC, without delay, via telephone call and
provide SMSDirect CC with written confirmation thereof
within 24 hours of such notification. On receipt of
telephonic notification, SMSDirect CC reserves the right
7.4.1 reject all Instructions received after such
7.4.2 suspend the processing of all Instructions not
7.4.3 reverse (if possible) all executed Transactions
with effect from such date and time as SMSDirect CC may
reasonably determine the unauthorized use to have
7.4.4 deactivate the User ID and/or PIN in question
without further notice.
7.5 The User shall be obliged to logoff from the
Online Services in the prescribed manner before exiting
the Website. Failure to logoff could result in
unauthorised Transactions for which SMSDirect CC will
not be held liable.
7.6 SMSDirect CC may, in its sole discretion and for
whatever reason, require a User to change his/her User
ID and/or PIN from time to time and the User undertakes
to comply with such requirement unconditionally.
7.7 The User acknowledges that the User ID and PIN
may enable the User to access some or all Online
services of SMSDirect CC and, accordingly, unauthorised
use of the User ID and PIN could expose a User to
unauthorised transactions on other services provided by
8. WARRANTEES GIVEN TO SMSDirect CC
8.1 The User warrants to SMSDirect CC that he/she:
8.1.1 submitted the Application;
8.1.2 is duly authorised to make use of the Online
8.1.3 has complied with all applicable statutory
8.2 The User shall indemnify and hold SMSDirect CC
harmless for damages or losses of whatever kind,
directly or indirectly caused by any breach of the
warranties provided for in this clause 8.
9. TECHNOLOGY NEUTRALITY
SMSDirect CC makes these Online Services available to
Users subject to the principle of technology neutrality,
which principle Users hereby accept. The principle of
technology neutrality means that, unless otherwise
stated in the Online Terms:
9.1 any reference to words in the Entire Agreement,
legislation or regulations traditionally associated with
a non-electronic or non-Online environment, including
the terms "writing" or "document", shall include
electronic or Online forms thereof;
9.2 documents or displays viewed or printed by Users
via the Website shall prima facie be deemed to be "true
copies" of the original;
9.3 a Digital Signature or whatever method utilized
by SMSDirect to indicate acceptance, shall have the same
legal effect as a hand-written signature.
10. AUTHORITY BY USER
10.1 The User hereby designates the Submission of the
User ID and PIN as the User's express authority for
purposes of all subsequent actions performed or
instructions given during a Session.
10.2 In as far as a signature is required for each
Instruction in terms of the Entire Agreement or
applicable legislation, the User hereby designates each
Submission of an Instruction as his written signature
10.3 Whenever required in the Entire Agreement or
applicable legislation, the Submission of the User ID
and PIN, together with the Submission of an Instruction
shall, collectively, constitute and have the same effect
as a written, signed authority.
10.4 Subject to the provisions of clause 6, SMSDirect
CC shall be entitled to regard all Instructions as
actually originating and emanating from or authorized by
the User and to act on such Instruction. Under no
circumstances shall SMSDirect CC be held liable for any
actions taken on unauthorized instructions.
11.1 An Instruction becomes irrevocable once
Submitted to SMSDirect CC.
11.2 SMSDirect CC shall not be liable for the User
executing the same Instruction more than once and
neither Instruction shall be reversible.
11.3 Upon receipt of an Instruction by SMSDirect CC
to access Online Services or to perform Services, a User
shall be deemed -
11.3.1 to give SMSDirect CC an irrevocable mandate and
to instruct it to act as its agent (and not in its own
right) in acquiring and making known to the User any
information of whatsoever nature relating to that User
in the performance of the Services;
11.3.2 to authorise and instruct any third party in
possession of any information relating to such User to
immediately release that information to SMSDirect CC for
purposes of performing the Services;
11.3.3 to indemnify and release SMSDirect CC and any
third party contemplated in paragraphs 11.3.1 and 11.3.2
from any claim of whatsoever nature resulting from the
proprietary or confidential nature of such information.
11.4 Any information of a proprietary or confidential
nature acquired by SMSDirect CC in the performance of
any Services in terms of an Instruction by a User shall
not be divulged or made known to any other person
without the express approval of the User to whom such
12. SUBSCRIBER INFORMATION
12.1 All email addresses/mobile numbers for User's
distribution lists, and associated subscriber
information, are never shared with any other User. The
list remains the property of the User at all times.
12.2 All such subscriber information is kept on a
secure database. Where the system does have to
distribute information to other SMSDirect CC servers for
efficient delivery, all information is strongly
encrypted and compressed before being sent over the
12.3 Subscriber information is only ever exported
from the database when the User requests it, or when
SMSDirect CC technical staff deems it necessary (for
tasks such as backups).
12.4 No-one else but authorised list administrators
can add or remove addresses, except in the case of a
subscriber adding or removing him/herself.
13. UNAVAILABILITY OF ONLINE SERVICES
13.1 SMSDirect CC shall at all times and for whatever
reason, have the sole and exclusive right to suspend or
terminate the Online Services without any prior
notification or giving any reasons for such termination
13.2 Users acknowledge and accept that the Online
Services may become unavailable from time to time due to
various circumstances, including: technical failure or
problems with the SMSDirect CC System; technical failure
or problems with third party information technology
systems; unavailability of telecommunication or
electricity services; force majeur or other
circumstances beyond the control of SMSDirect CC.
14. SMS SERVICE
14.1.1 SMSDirect CC will provide the User with the
services of formatting and sending SMS Messages from the
desktop to the cell / mobile phone.
14.1.2 SMSDirect CC reserves the right, at any time, to
modify, enhance, develop or discontinue, and modify
services and contents on its website temporarily or
permanently, or parts thereof at any time without prior
14.1.3 The User agrees that, by definition, access to
the Internet, the GSM network and other communication
media is associated with risks concerning
authentication, data security, privacy, availability of
services, reliability of transmission etc. - The User
agrees to bear full and exclusively responsibility
arising from such risks and consequences of the User's
usage of SMSDirect CC's services.
14.2. ACCESS TO WWW.SMSDIRECT.CO.ZA
SMSDirect CC makes its best efforts to provide SMS
services on the website www.smsdirect.co.za 7 days a
week, 24 hours a day. In order to use the Service, the
User must obtain access to the World Wide Web, either
directly or through devices that access web-based
content, and pay any service fees associated with such
access. In addition, the User must provide all equipment
necessary to make such connection to the World Wide Web,
including a computer and modem or other access device.
14.3. SMS DELIVERY
14.3.1 The User acknowledges that SMSDirect CC delivers
SMS messages via major telecommunications companies and
mobile network providers and can therefore only
influence the delivery and transmission of SMS messages
within the technical constraints imposed by the above
14.3.2 SMS messages submitted via www.smsdirect.co.za
will be transferred to the addressed mobile recipients
within variable times as dictated by congestion,
provided that the recipient's phone is switched on and
located in an area covered by his subscribed mobile
network provider. The User acknowledges that, depending
on the recipient's mobile provider service, it may not
be possible to transmit the SMS message to the recipient
successfully, particularly if the provider does not
support SMS delivery at all.
14.4. SMS STORAGE
SMS messages are assigned a life time of 24 hours. SMS
messages which could not be delivered successfully to
the recipient's mobile phone within this period will be
discarded without notice.
14.5. SMS PRIVACY
14.5.1 SMSDirect CC's handling of User-related
information, including SMS message content, is subject
to South African communication and privacy laws.
14.5.2 The User acknowledges that SMSDirect CC is
obliged by law to store all message content and activity
logs for six months, and that SMSDirect CC can be
required by law to disclose details about a User's
activity and SMS transmissions to government and law
enforcement officials on explicit request.
14.5.3 The User acknowledges that SMS message content
is transmitted unencrypted and that eavesdropping of
mobile phone communications, including SMS delivery, by
third parties is possible.
14.5.4 All data hosted by SMSDirect CC on behalf of its
Users is for the sole use of that User and may not be
used by either SMSDirect CC or other SMSDirect CC Users.
Access to the data is strictly restricted to the
management of SMSDirect CC and the respective User.
14.6. SMS CONTENT
14.6.1 The User assumes full responsibility for the
content of SMS messages transmitted by himself or by a
third party on his request.
14.6.2 The User agrees to abide to all laws and
regulations applicable to the content and intent of SMS
messages transmitted by him.
14.6.3 The User assumes liability for all consequences
and costs arising out of offenses against such
14.6.4 The User must ensure that his SMS delivery does
not cause disturbance or harassment of a recipient or
other third party.
14.6.5 The User agrees to refrain from sending SMS
messages containing offensive, violent, pornographic, or
discriminatory, or otherwise illegal content.
14.6.6 The User is not permitted to send SMS messages
to recipients who have made clear that they do not wish
to receive SMS messages or advertisements via SMS.
14.6.7 The User agrees to indemnify and hold SMSDirect
CC, and its subsidiaries, affiliates, officers, agents,
co-branders or other partners, and employees, harmless
from any claim or demand, including reasonable
attorneys' fees, made by any third party due to or
arising out of Content the User transmit through the
Service, the User's use of the Service, the User's
connection to the Service, the User's violation of the
Terms of Usage, or the User's violation of any rights
14.7. SMS ORIGINATOR
Each SMS message transmitted must contain an existing
and authorized User service phone number belonging to
the User or authorized for use as such by the owner of
the phone number. SMSDirect CC will not deliver SMS
messages without originator information.
14.8. SMS NOTICES
SMSDirect CC reserves the right to include in each
message sent by a list owner a notice similar to the
following: "Powered by SMSDirect CC".
14.9. SMS SERVICE BACKUPS
While SMSDirect CC will make every reasonable effort to
protect and backup data for the list owner on a regular
basis, SMSDirect CC is not responsible for the list
owner's data residing on the SMSDirect CC servers. List
owners are responsible for keeping current copies of
members and their related information. To this end, an
export facility is available to all SMSDirect CC Users.
14.10. SMS SERVICE MEMBER PRIVACY
14.10.1 It is SMSDirect CCs policy to respect the
privacy of its users. The User agrees that SMSDirect CC
may access and disclose any information, including
usernames and other information, if SMSDirect CC
believes in good faith that such action is reasonably
necessary to comply with applicable laws and lawful
government requests, to operate its systems properly, or
to protect itself, its members, or others.
14.10.2 In addition, please be aware that due to the
nature of the Internet and other factors, privacy in
your communications cannot be guaranteed, and you should
bear this in mind when deciding whether to transmit
confidential information or any other information via
14.11. SMS SERVICE MEMBER CONDUCT
14.11.1 The opinions and views expressed in the mailing
lists do not reflect those of SMSDirect CC. The contents
of mailing lists are based on data submitted by Users,
and SMSDirect CC does not review, screen or edit
messages sent via the SMSDirect CC system.
14.11.2 Nonetheless, SMSDirect CC reserves the right but
not the duty to monitor and remove any information
transmitted or received through the service, to
terminate the User's account and use of SMSDirect CC,
or to remove any list from SMSDirect CC at any time,
without notice, at SMSDirect CC's sole discretion.
15. FEES AND CHARGES
15.1 The fees and charges payable by the User to
SMSDirect CC for the Service will be determined in
accordance with the schedule of fees and charges as
published from time to time by SMSDirect CC.
15.2 SMSDirect CC shall be entitled to increase the
monthly fees and charges, provided that SMSDirect CC
shall notify all existing Users of such an increase
16. PAYMENT PROVISIONS
The User undertakes to effect payment of all amounts due
to SMSDirect CC arising out of this agreement prior to
activation of the service by SMSDirect CC.
The User agrees to indemnify and hold SMSDirect CC and
its Members, directors and employees harmless from any
claim, demand or damage, including reasonable
attorneys' fees, asserted by any third party due to or
arising out of the User's use of the Service.
18. PROPRIETARY RIGHTS TO CONTENT
The User acknowledges that the content, including but
not limited to text, software, music, sound,
photographs, video, graphics or other material contained
or made available to the User via the Service is
protected by copyrights, trademarks, patents or other
proprietary rights and laws and the User undertakes not
to infringe such rights.
19. DISCLAIMER & LIMITATION OF LIABILITY
19.1 THIS WEBSITE AND THE ONLINE SERVICES ARE
PROVIDED "AS IS" AND SMSDirect CC MAKES NO EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES WITH REGARD
THERETO. WITHOUT LIMITING THE GENERALITY OF THE
19.1.1 SMSDirect CC DOES NOT WARRANT THAT THE WEBSITE
OR ONLINE SERVICES WILL BE ERROR-FREE OR WILL MEET ANY
PARTICULAR CRITERIA OF ACCURACY, COMPLETENESS OR
RELIABILITY OF INFORMATION, PERFORMANCE OR QUALITY.
19.1.2 SMSDirect CC EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE, YEAR 2000-COMPLIANCE, NON-INFRINGEMENT,
COMPATIBILITY, SECURITY AND ACCURACY.
19.2 USE OF THIS WEBSITE AND THE ONLINE SERVICES IS
ENTIRELY AT A USER'S OWN RISK AND USERS ASSUME FULL
RESPONSIBILITY AND RISK OF LOSS RESULTING FROM THE USE
THEREOF. NEITHER SMSDirect CC, ITS MEMBERS, AGENTS,
CONSULTANTS OR EMPLOYEES WILL BE LIABLE FOR ANY DAMAGES
WHATSOEVER RELATING TO THE USE OF THIS WEBSITE, THE
ONLINE SERVICES OR THE INFORMATION CONTAINED THEREIN,
INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,
WHETHER ARISING OUT OF CONTRACT, STATUTE, DELICT OR
OTHERWISE. WITHOUT DEROGATING FROM THE GENERALITY OF
THE FOREGOING, SMSDirect CC SHALL NOT BE LIABLE FOR:
19.2.1 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER
FAILURE OF THE WEBSITE OR ONLINE SERVICES, THE SMSDirect
CC SYSTEM, DATABASES OR ANY COMPONENT PART THEREOF FOR
19.2.2 ANY LOSS OR DAMAGE WITH REGARD TO USER DATA OR
OTHER DATA DIRECTLY OR INDIRECTLY CAUSED BY MALFUNCTION
OF THE SMSDirect CC SYSTEM, POWER FAILURES, UNLAWFUL
ACCESS TO OR THEFT OF DATA, COMPUTER VIRUSES;
PROGRAMMING DEFECTS; NEGLIGENCE ON THE PART OF SMSDirect
CC OR CAUSED BY THE YEAR 2000 COMPUTER PROBLEM.
19.2.3 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER
FAILURE OF GOODS OR SERVICES PROVIDED BY THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, THE PUBLIC SWITCHED
TELECOMMUNICATION SERVICE PROVIDERS (CURRENTLY TELKOM),
INTERNET SERVICE PROVIDERS, ELECTRICITY SUPPLIERS
(CURRENTLY ESKOM), LOCAL AUTHORITIES AND CERTIFICATION
19.2.4 AN EVENT OF VIS MAJOR OR ANY OTHER EVENT
20. TERMINATION OF SERVICE
SMSDirect CC may, at its sole discretion, terminate the
Service provided to the User without notice, for any
reason, including, without limitation, if the User has
acted inconsistently with the letter or spirit of this
All communication media and systems associated with the
website www.smsdirect.co.za and the underlying services
remain the property of SMSDirect CC or other parties. By
using the services, the User does not obtain any rights
in the infrastructure, content or software associated
with the services.
These Terms of Usage are governed by
South African jurisdiction.
23. CHANGE OF POLICY
SMSDirect CC reserves the right to change this privacy
policy from time to time, and will notify all SMSDirect
CC Users of such changes or additions.