WinSMS Terms & Conditions
The following are the terms and conditions for use of the WinSMS service (hereinafter referred to as the “service”) by the User.
By registering on the WinSMS web site, and/or by accessing any part of the WinSMS service the User agrees that he/she/it automatically becomes a party to this service agreement and agrees to be bound by all the terms and conditions contained in this service agreement.
Should the User not agree to all the terms and conditions contained in this service agreement, or cannot comply with such terms and conditions, the User should not complete the registration process and should not make use of the WinSMS services.
The User agrees that all terms and conditions as set out in this document [and as varied, amended, or changed as provided for in this document] shall be binding and that should there be a contradiction between product-specific terms and conditions, and the terms and conditions as set out in this document, the product-specific terms and conditions shall apply.
The User understands that the WinSMS product and service is owned and run by Dolsin Business Solutions (Pty) Ltd, registration number 2004/014687/07. All references herein to WinSMS as an entity/company/organisation shall mean “Dolsin Business Solutions (Pty) Ltd”.
WASPA Code of Conduct
WASPA Code of Conduct means the Code of Conduct of the Wireless Application Service Provider Association at www.waspa.org.za.
The User shall only use the WinSMS Services for lawful purposes and warrants that he/she/it shall strictly adhere to the WASPA Code of Conduct.
WinSMS shall not be held liable by the User if some or all services are suspended by the cellular network operator(s) or WASPA or any other regulatory body, or if any agreement with the SP is cancelled due to any illegal activity or activity contravening the laws of South Africa and/or the WASPA rules and guidelines by the User. The onus to keep informed of and review the content of the WASPA Code of Conduct remains on the User.
WinSMS shall have the right to retain any funds payable to the User in the case of pending WASPA or networks fines, or unresolved WASPA complaints directed to the User due to misconduct in the market.
The User shall take full responsibility for any formal responses to any regulating body and WinSMS shall be kept fully informed of the progress of any such proceedings.
The User shall at all times be responsible for payment, upon demand, of any fines or penalties imposed by any regulating or other authority.
WinSMS reserves the right to summarily suspend the services of a User that does not comply with the WASPA Code of Conduct or breach of any terms and conditions in this document without notice. WinSMS shall not be liable for any damages suffered by the User as a result of such suspension.
1. The WinSMS Service
1.1 The service consists of a browser interface, a SMS messaging application, SMS gateway access, data transmission, data access, data storage, a SMS short-code system, and any other means made available from time to time to facilitate the sending and or receiving of SMS messages. 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.
1.2 WinSMS does not warrant or guarantee a continuously available service or any specific feature(s) of the service and the User shall have no claim against WinSMS of whatsoever nature arising from the non-availability of the service or any feature of the service from time to time.
1.3 Messages shall be deemed to have been sent to the relevant recipient when WinSMS has delivered/sent the messages to the immediate destination as provided for by WinSMS software, 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. WinSMS has no obligation to and does not warrant or guarantee that SMS messages sent by WinSMS as provided for by WinSMS software will be delivered to cell phones by Mobile telephone networks.
1.4 WinSMS gives no warranty regarding its network coverage. Although WinSMS focuses on providing extensive coverage, mobile networks may choose from time to time to not be part of WinSMS or its service providers’ networks. This may result in messages not being delivered. The User shall have no claim against WinSMS of whatsoever nature arising from the non-delivery of messages in these circumstances.
1.5 WinSMS reserves the right to change or terminate the service and/or alter the terms and conditions of this agreement at any time without notice and with immediate effect. All fees paid to WinSMS when such termination occurs are addressed in the sections below.
2. Use of the WinSMS Desktop Client Application
Subject to the terms and conditions of this service agreement and South African Law, WinSMS grants the User an individual, personal, non-sub licensable, non-exclusive and non-transferable license (“the License”) to use its 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 WinSMS 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 WinSMS products and/or services.
As between the parties, the User acknowledges that WinSMS, 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 prior to entering into this agreement.
3. User Account, Password, and Security
To open an account for usage of the service, the User must complete the registration process by providing WinSMS with current, complete and accurate information as prompted by the registration form on the WinSMS web site. Inaccurate details will result in suspension. The User will choose an account name and a password will be assigned. The User’s password must be changed by the User by going to the “My Profile” section on the WinSMS web site.
The User may only register one Main Account for his/her use. If additional accounts are required by the User, the User must create sub-accounts by going to the “Sub Accounts” section of the client zone on the WinSMS web site.
Any attempt by the User to register more than one Main Account, without having received permission from WinSMS, will result in the immediate suspension of the Users account, including any Sub Accounts the User may have created.
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. The User indemnifies WinSMS against any claim of whatsoever nature brought by any third party arising from the services offered.
The User agrees to notify WinSMS immediately of any unauthorized use of its account or any other breach of security.
4. Users Privacy
4.1 It is WinSMS’s policy to respect the privacy of the User. WinSMS will not disclose any personal information about the User or the User’s WinSMS account, including its contents, without the User’s prior permission unless WinSMS 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 WinSMS; (3) enforce this service agreement or protect WinSMS ‘s business or reputation, including without limitation upon termination, cancellation or suspension of this agreement by WinSMS; (4) respond to requests for identification in connection with any 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.
4.2 The User agrees that WinSMS may access its account, including its contents, as stated above in order to respond to service or technical issues.
4.3 The User hereby grants WinSMS the right to send the User communication via e-mail or SMS of any updates, upgrades, notices, or other information that WinSMS deems important for the User to know, relating to the service.
5. Messages and other Limitations
WinSMS assumes no responsibility for the deletion or failure to store information. WinSMS has set no fixed upper limit on the number of messages the User may send through the service apart from how many SMS credits are left in the User’s account; however, WinSMS reserves the right, at its sole discretion, to determine whether or not the User’s conduct is consistent with the letter and spirit of this agreement and may terminate the service if the User’s conduct is found to be inconsistent with the agreement. WinSMS may, in the future, without prior notification, limit the amount of message storage space available to each User.
Although WinSMS 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 “sent”
6. User Conduct
6.1 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:
6.1.1 Use the service in connection with chain letters, junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);
6.1.2 Harvest or otherwise collect information about others, including email addresses, without their consent;
6.1.3 Create a false identity or forged mobile phone address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
6.1.4 Transmit through the service, associate with the service or publishing with the service wrongful, malicious, unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
6.1.5 Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
6.1.6 Libel, defame or slander any person, or infringe upon any person’s privacy rights;
6.1.7 Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
6.1.8 Interfere with or disrupt networks connected to the service or violate the regulations, policies or procedures of such networks;
6.1.9 Attempt to gain unauthorised access to the service, other accounts, computer systems or networks connected to the service, through password mining or any other means;
6.1.10 Interfere with another User’s use and enjoyment of the service or another entity’s use and enjoyment of similar services; or
6.1.11 Engage in any other activity that WinSMS believes could subject it to criminal liability or civil penalty or judgment.
7. Payment, Fees and the Users Right to Cancel
7.1 In consideration for the use of WinSMS’s services, the User shall pay to WinSMS 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. WinSMS 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.
7.2 All fees are payable in advance. Failure to purchase credits in advance will result in suspension of the services. Advance payment refers to payment that is made within a reasonable time so as to allow WinSMS to add the SMS credits to the User’s account.
7.3 Payment. Transaction fees are due and payable when the User places an order for SMS credits from within the “Client Zone” at the WinSMS web site. Payment shall be deemed to have been made as soon as the fee is cleared and available in WinSMS’s bank account.
7.4 Cheque Payment. If the User has elected to pay for SMS credits by cheque, the SMS credits will be allocated to the Users account when the funds have been cleared. Cheque payments may take up to 7 days to clear. International payments may take up to 4 working days to clear.
7.5 Credit Card Payment. If the User has elected to pay for SMS credits by credit card, and WinSMS does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by WinSMS. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment when such payment is made. WinSMS reserves the right to come to other payment arrangements on a case-by-case basis. Agreements with the credit card issuer governs use of the User’s credit card, and the User must refer to that agreement to ascertain its rights and liabilities as a cardholder.
7.6 Termination or Cancellation by the User. The User is free to terminate or cancel this agreement at any time, and for any reason; provided, however, for such termination or cancellation to be effective the User must carry out such termination in accordance with the policies and procedures established by WinSMS. Any questions concerning the appropriate method by which to cancel this agreement, should be addressed to info at dolsin .co.za.
7.7 The User acknowledges that WinSMS is dependant on various telecommunication networks and institutions for the delivery of its messages and that WinSMS may adjust its prices as and when necessary, should these telecommunication networks and institutions adjust their pricing. WinSMS undertakes to notify the User of such adjustments in writing via e-mail, prior to implementing such adjustments. Should there be a cost increase after the User has purchased message credits from WinSMS, WinSMS reserves the right to adjust the Users’ remaining credit balance accordingly.
7.8 – 30 Day Money Back Guarantee
WinSMS offers a 30 day money back guarantee, this means that the User shall be entitled to request a refund of monies paid to WinSMS, within 30 (thirty) days of making their first purchase from WinSMS, provided that the amount requested for refund is an amount equivalent to the number of message credits left in the User’s account, i.e. all messages sent will be subtracted from the User’s credit balance. Further to that the User will receive back the amount which fits in with the corresponding volume-option – i.e. on the cost-scale equivalent to the amount of message credits used. Refunds are only applicable for the user’s first purchase of credits.
8. Credit-based billing principles for messages sent to International destinations.
WinSMS is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on WinSMS’s coverage pages from time to time, and WinSMS charges the published rate when a message is sent through the system. The User understands that the number of credits to a specific destination network may change due to factors beyond the control of WinSMS, and that WinSMS may adjust these rates whenever it deems it necessary to do so.
9. Modification of Terms; Termination, Cancellation, and Suspension
9.1 Modification of Terms. WinSMS frequently updates, modifies, and otherwise continually seeks to improve the WinSMS services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, WinSMS shall have the right to modify the terms of this agreement and to change or discontinue any aspect or feature of the WinSMS service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting on its website 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 cancelled 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.
9.2 Termination, Cancellation and/or Suspension by WinSMS; Disclosure of Information. This agreement and the license granted here under may be terminated, cancelled and/or suspended by WinSMS at any time if, in WinSMS’s sole discretion, the User breaches these Terms of service. Such termination, cancellation and/or suspension by WinSMS shall be effective immediately upon notification by WinSMS to the User in any reasonable manner, including but not limited to, notification by e-mail or SMS. Upon, during, and/or after any such breach, WinSMS 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 event(s) giving rise to the suspension, termination or cancellation. WinSMS reserves the right to suspend the User’s service at any stage for any reason it may deem necessary, including but not limited to the, financial status of the User or the content of the messages originating from the User
9.3 In the event that WinSMS receives complaints from recipients or third parties with respect to the use of the service, WinSMS additionally reserves the right, in its sole discretion, to disclose any and all User information to the complainant, applicable authorities or any other party involved in the complaint.
9.4 Termination or Cancellation by the User; 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 WinSMS (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 WinSMS and remove all WinSMS software and applications on any computer, database, server (local or remote) in Users possession or under its control.
9.5 Upon termination of this service agreement, WinSMS shall have no financial or other obligation to the User of whatsoever nature, except as arises from point 9.6 below.
9.6 Financial obligations of WinSMS upon Termination and/or Cancellation by WinSMS; Should the termination of services result in a situation where the User still has credits (or messages that are pre-paid), the User shall only be entitled to request a refund of monies pre-paid to WinSMS within the last 7 days prior to the cancellation or termination of the agreement, provided that the amount requested for refund is an amount equivalent to the number of message credits left in the User’s account and such refund, if any, shall be subject to the provisions of paragraph 7.7 and also the deduction of any expenses that may be incurred by WinSMS to facilitate the refund, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement, provided the User requests any such refund due, in writing, within seven days of notification of termination and/or cancellation. There is a minimum administration charge of 10% on all refunds.
10. No Warranties Or Liabilities
10.1 Generally. The User expressly acknowledges and agrees that the use of the service and the internet generally is at its own risk and that the service is provided “as is” and “as available” without any warranties or conditions whatsoever, express or implied. WinSMS will use commercially reasonable efforts to make access to WinSMS available to the User through the required access protocols, but makes no warranty or guarantee that the User will be able to access WinSMS at any particular time or any particular location.
10.2 Additional Limitations. Without limiting the generality of the terms set forth in Section 10.1, and the other provisions of this agreement relating to warranties, WinSMS and its affiliates, agents, content providers, service providers, and licensors:
10.2.1 Hereby disclaim all express and implied warranties as to the accuracy, completeness, non-infringement, merchantability or fitness for particular purpose of WinSMS generally, and any content or services contained therein, as well as all express and implied warranties that the operation of WinSMS generally and any content or services contained therein will be uninterrupted or error-free;
10.2.2 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 whole or in part by failures, delays or interruptions of the service generally, and any aspect ancillary thereto; (the User agrees to indemnify WinSMS pursuant to point 12 hereof for any and all third party claims arising from such failures, delays or interruptions in connection with regard to use of the service);
10.2.3 Without in any way limiting the foregoing, WinSMS shall in no event have (in the aggregate) any liability whatsoever in connection with this agreement in excess of an amount equal to two times 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.
10.2.4 High risk activities. the WinSMS service 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, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of WinSMS could lead directly to death, personal injury, or severe physical or environmental damage (“high risk activities”). in addition to the other disclaimers and limitations contained within this agreement, WinSMS 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.
10.2.5 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, WinSMS’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.
11. Third Party Beneficiaries
Notwithstanding anything to the contrary contained herein, the provisions for “No Warranties and Liabilities” set forth in Section 10 herein are for the benefit of WinSMS 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 hereby indemnifies, holds harmless, and defends WinSMS and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (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 the 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. WinSMS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User. This indemnity shall be in addition to and not be affected by other indemnities given by the User elsewhere in this agreement.
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. 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 WinSMS 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 on an attorney and own client scale. All notices under this service agreement will be in writing and will be deemed to have been duly given, when posted on this website, when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail or SMS; 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 WinSMS and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
14. WinSMS API Specific Terms & Conditions
WinSMS offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to WinSMS’s Gateway. These terms do not exclude the foregoing terms in this agreement.
14.1 WinSMS reserves the right to approve Users of API connections at its sole discretion.
14.2 WinSMS encourages the use and publicity of anti-spam policies.
14.3 The User will be supplied with a login and password which will ensure that the connection is at all times secure from WinSMS’s side. Security measures over and above this will be the User’s responsibility.
14.4 Although WinSMS 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 WinSMS informing the User that it has changed. It is the User’s sole responsibility to test the specifications thoroughly on a regular basis, as WinSMS shall have no responsibility and incur no liability for specifications that may be incorrect or incomplete.
15. WinSMS Short Code Specific Terms & Conditions
WinSMS offers the facility for individuals or businesses to receive incoming messages via a dedicated five digit number referred to as a short code. These terms do not exclude the foregoing terms in this agreement.
Service Description: A standard rate short code 5 digit number for MO (Mobile Originating) SMS.
Clients are charged at their normal Contract or Pre-Paid rates per incoming SMS message. Free SMS messages do not apply.
SMS messages sent to this number will be stored in an online in-box in the WinSMS Client Zone and can be accessed by logging into the WinSMS Client Zone and then clicking on the “MO SMS” link under “Message Logs”, where they can be viewed or download as a CSV file.
The following routing options can be applied to inbound messages and can be configured via the “Manage Short Code” page in the WinSMS Client Zone: 1) Forward to another cell number. 2) Forward to an email address. 3) Forward to a website URL. 4) Auto-response message.
The provisioning of a number can take up to 14 days but is normally done within a week.
The setup fee plus the first month’s rental fee (pro rata) is payable on receipt of Invoice.
The monthly rental fee is payable in advance at the beginning of each subsequent month.
The short code number can only be used in South Africa, i.e. only on SA networks.
Standard WinSMS rates apply for all outgoing messages (e.g. if the option to forward to another cell number is selected or if there is an auto-response message configured).
Costs: There is a setup and provisioning fee as well as a monthly rental fee. The current fees are listed on the order form.
This is a monthly service agreement that can be cancelled at any time by giving one calendar months’ notice in writing.
Failure to pay any monies due will result in the immediate suspension of the short code service as well as the suspension of the user account that is connected to the short code service.