SMS Terms and Conditions

Channel Mobile SMS Terms and conditions.

  1. DEFINITIONS
  • In this Agreement, unless the context clearly indicates a contrary intention,
    1. the following words will have the following meanings and cognate expressions will have corresponding meanings:
      • “Agreement” means this agreement and all annexures, addenda and schedules thereto;
      • “Channel Mobile” means Channel Mobile CC;
      • “Charges” means all charges payable by the Client to Channel Mobile in respect of the Services as set out in the Schedule of Charges annexed hereto and as amended from time to time;
      • “Client” means the Party identified in the Client Information Schedule;
      • “Commencement Date” means the commencement date of the Services, as set out in the respective Services Schedules attached hereto;
      • “CPAmeans the Consumer Protection Act 68 of 2008 as amended from time to time.
      • “Effective Date” means the date of signature of this Agreement by the Party signing last in time;
      • “Initial Period” means a period of 3 months calculated from the Effective Date;
      • “Law” means any applicable statute, regulation or subordinate legislation in force from time to time in South Africa, and includes without limitation POPI, the CPA, and any legislation which amends or replaces the aforesaid and the common law as applicable from time to time;
      • “Parties” or “Party” means the Client and Channel Mobile collectively or where the context so indicates, any one or both of them;
      • “POPI” means the Protection of Personal Information Act number 4 of 2013.
      • “Renewal Periods” means 3 months periods each reckoned from the expiry of the Initial Period, alternatively, any prior Renewal Period;
      • “Services” means the services to be supplied by Channel Mobile to the Client subject to the terms and conditions of this Agreement as more fully set out in the Services Schedule hereto;
      • “Signature Date” means the date upon which this Agreement is signed by the Party who signs same last in time;
      • “System” means software supplied by Channel Mobile.
      • “System Operators” means cellular, mobile, fixed line, wireless or similar network operators from time to time;
      • “VAT” means Value-Added Tax payable in terms of the Value-Added Tax Act 1991, as amended.
      • Clause and paragraph headings are for purposes of reference only and will not be used in interpretation.
      • Unless the context clearly indicates a contrary intention, any word denoting

      any gender includes the other gender, the singular includes the plural and vice versa, natural persons includes artificial persons and vice versa and insolvency includes provisional or final sequestration, liquidation or judicial management.

      • The terms of this Agreement have been negotiated. Accordingly, the contra proferentem rule in terms of which an agreement will be interpreted against the party responsible for the drafting and preparation of the agreement will not apply in the interpretation of this Agreement.
      • The euisdem generis rule will not apply and whenever the term “including” is followed by specific examples, such examples will not be construed so as to limit the meaning of that term.
      • Expression defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement, which do not themselves contain their own definitions.

       

      1. DURATION, TERMINATION AND RENEWAL
        • This Agreement shall commence on the Effective Date.
        • This Agreement shall automatically continue as a month to month, unless it is terminated by the Client on 1 (one) calendar month’s written notice to Channel Mobile, provided that this Agreement cannot be terminated whilst there is a valid Services Schedule in operation.
      2. PROVISION AND USE OF SERVICES
        • Channel Mobile undertakes to provide the Services to the Client upon the terms and conditions set out in this Agreement as contained in the Services Schedule.
        • Channel Mobile shall take all reasonable steps to ensure that the Services are provided in accordance with this Agreement, however, Channel Mobile does not warrant or guarantee the Services in any manner whatsoever including but not limited to the quality and/or continuity thereof, if that service is reliant on system operators.
        • The provision of the Services is subject to the availability of Systems to be supplied by System Operators.
      3. CHARGES AND PAYMENT
        • The Charges are as contained in the Schedule of Charges annexed hereto and are, unless otherwise stated, exclusive of VAT which shall be paid for by the Client.
        • Failure to pay your account may result in your Services being suspended.
        • Notwithstanding the Charges contained in the Schedule of Charges hereto, the Client remains liable to make payment for the actual Services rendered if the Services so rendered are in excess of the Services reflected in the Services Schedule and accordingly, the Charges may be amended to incorporate any additional Services rendered at any time.
        • The Charges contained in the Schedule of Charges are subject to amendment should there be any increase or decrease in the costs of the Systems provided by the System Operators, in which event the Charges to the Client will be increased or decreased unilaterally by Channel Mobile pro rata to the increase or decrease in cost of the System to Channel Mobile.
        • In the event of any variation of the Charges on behalf of Channel Mobile, not occassioned by a change in System Operator pricing. Changes then such variations shall be effective from the date specified in the notice provided by Channel Mobile to the Client of such variations. Should the variation in cost be more than an annual CPIX change, then at such time, the contract may be eligible for renegotiation.
        • The Client shall not, for any reason whatsoever, withhold payment of the Charges, or part thereof.
        • The Client shall be liable and shall on demand pay any and all bank transaction fees incurred by Channel Mobile.
        • Should the Client fail to make payment on due date, Channel Mobile shall be entitled, without detracting from its other rights in terms of this Agreement, to charge the Client interest, calculated monthly on any amounts owed to Channel Mobile from the date of non-payment to date of settlement thereof at a rate equal to 2% per month or part thereof, or such other maximum rate as may be prescribed by the National Credit Act, 2005 from time to time.
      4. CERTIFICATE

      A certificate signed by any duly authorised representative of Channel Mobile (whose appointment and authority shall not be necessary to prove) as to the amount of any indebtedness of the Client to Channel Mobile in terms of and pursuant to this Agreement, shall constitute prima facie proof for the purposes of obtaining provisional sentence, default judgement or summary judgement or the equivalent in any court of competent jurisdiction.

      1. ACKNOWLEDGEMENTS AND WARRANTIES
        • The Client acknowledges and/or warrants that:
          • the signatory to this Agreement on behalf of the Client is duly authorised to enter into this Agreement;
          • it has not relied on any representations or undertakings by Channel Mobile in entering into this agreement;
          • the System operated by the System Operator is not under the control of Channel Mobile;
          • Channel Mobile is entitled to make enquiries about the Client’s credit history and credit records with any credit reference agency within the Republic of South Africa;
          • Channel Mobile is entitled to provide regular reports in respect of Client’s payment conduct to credit reference agencies in the Republic of South Africa.
        • The Client warrants further that it will familiarise itself with the WASPA Code of Conduct available at waspa.org.za and that will utilise the Services only in accordancewith the provisions of such Code of Conduct.
        • The Client undertakes and warrants that it will at all times comply with all Laws in their utilisation of the Services.
        • Unless otherwise specified, Channel Mobile has made no representations and/or warranties and disclaims liability in respect of the System, the Services and the availability and accuracy thereof for any particular purpose.
        • The Client accepts all liability arising from any claims in respect of the Services.
      2. INDEMNITY
        • Channel Mobile shall not be liable to the Client in any circumstances whatsoever for any loss, injury or damage of any nature whatsoever or howsoever arising and whether in contract or in delict, including loss of profit or any other special damages, indirect or consequential loss or damages which the Client or any other person may sustain, whether as a result of any negligence, non-compliance and/or breach of this Agreement by Channel Mobile or the System Operators or their respective employees and contractors or whether caused directly or indirectly by the System and/or the Services or the use thereof and the Client hereby indemnifies Channel Mobile, its directors, agents, employees and servants and holds it harmless against any such claims by the Client or any other persons.
        • Channel Mobile shall not be liable for any unavailability, suspension or termination or any other performance issues caused by factors outside of its reasonable control, including any force majeure event whether it results from any actions or inactions on behalf of the Client or any third party or failure of any equipment, software or other technology of the Client or any third party.
      3. SUSPENSION OF SERVICES

      Channel Mobile reserves the right to suspend the services in whole or in part with reasonable notice of 24 hours to conduct routine maintenance or modification of the system, without incurring any liability whatsoever in respect of such suspension.

      Channel Mobile reserves the right to suspend the Services in whole or in part, without notice to the Client and without incurring any liability whatsoever in respect of such suspension in the event that:

      • Channel Mobile is unable to provide the Services in whole or in part due to force majeure or otherwise through no fault of its own;
      • suspension due to repair or similar works conducted in respect of the Services and/or the System;
      • the Client fails to make payment in terms of the provisions of clause 4 above;
      • the Client fails to comply with and/or breaches any terms of this Agreement;
      • if the Services are suspended in terms of this provision, Channel Mobile may in its sole discretion provide an alternative service to the Client.
      1. BREACH
        • Should the Client breach any terms of this Agreement and fail to remedy such breach within 7 (seven) days after dispatch of a written notice calling upon the Client to do so, Channel Mobile shall be entitled, but not obliged, and without detracting from any rights that Channel Mobile may have in law or in terms of this Agreement to:
          • cancel this Agreement; or
          • claim specific performance of all the Client’s obligations in terms of this Agreement; and/or
          • suspend the Services in whole or in part; and/or
          • notify any credit reference agencies in the Republic of South Africa; and/or
          • claim any damages which Channel Mobile may have suffered as a result of such breach.
        • Notwithstanding anything to the contrary stated in this Agreement, should this Agreement terminate prior to the expiry of either the Initial Period or any subsequent Renewal Period, as the case may be, Channel Mobile shall be entitled to claim immediate payment of all amounts payable in terms of this Agreement as if this Agreement had terminated on the expiry of the said Initial Period or subsequent Renewal Period, whether or not such amounts are due at the time of the Client’s breach.
      2. JURISDICTION
        • This Agreement and its termination shall be governed by the Laws of the Republic of South Africa and for purposes of all or any proceedings hereunder, the Parties consent to the jurisdiction of the Magistrate’s Court, notwithstanding that such proceedings are otherwise beyond its jurisdiction.
        • This clause shall constitute the required consent in terms of section 34 of the Magistrate’s Court Act, 1944, provided, nevertheless that any Party shall have the right at its sole option and discretion to institute proceedings in any other competent court.
      3. NOTICES AND DOMICILIA
        • The Parties choose as their domicilium citandi et executandi the following respective addresses:
          • Channel Mobile at 35 on Rose, Office 3, Rose Street, Bo Kaap, 8000, telefax number 021 424 9309;
          • the Client at the address and telefax number contained in the Client Information Schedule hereto;

      for all purposes arising out of or in connection with this Agreement at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.

      • Either Party may vary its domicilium citandi et executandi to such other address in the Republic of South Africa, not being a post office or post restante, of which the Party concerned may notify the other in writing.
      • Any notice given in terms of this Agreement shall be in writing and shall:-
        • if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
        • if transmitted by facsimile be deemed to have been received by the addressee 24 hours after dispatch;
        • if sent by registered post be deemed to have been duly received by the addressee 7 days after the posting thereof.
      • Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of facsimile transmission shall be adequate written notice or communication to such Party.
      1. CESSION
        • Channel Mobile shall be entitled to cede, assign, delegate and/or transfer any or all of its rights and/or obligations in terms of this Agreement to a third party without the consent of the Client.
        • The Client shall not be entitled to cede, assign, delegate or transfer any of its rights and/or obligations in terms of this Agreement without the prior written consent of Channel Mobile.
        • Should the Client be a company, close corporation or trust, and should more than 25% of the issued share capital, members’ interest or beneficial interest be transferred, this shall be deemed to be a cession and assignment of this clause.
      2. General ProvisioNS
        • No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.
        • This document contains the entire Agreement between the Parties and no Party shall be bound by any undertakings representations, warranties, promises or the like not recorded in this Agreement.
        • No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice or preclude the Party granting any such indulgence, leniency or extension of time from exercising any of its rights in the future.
        • The Client warrants the correctness of all material information supplied to Channel Mobile including but not limited to all personal and company information contained in the Client Information Schedule hereto and in the event of any of the aforesaid information being incorrect, the signatory shall be personally liable to Channel Mobile for all the obligations of the Client and Channel Mobile shall be entitled to enforce its rights in terms of this Agreement against the said signatory.
        • The signatory by signing this Agreement warrants that he/she is authorised to enter into this Agreement and in the event of the Client challenging the authority of the signatory to sign this Agreement, or in the event that any information provided by the signatory is incorrect, the signatory shall be personally, jointly and severally liable as co-principal debtor with the Client for due and proper performance of all obligations by the Client to Channel Mobile in terms of this Agreement.
        • All terms and provisions of this Agreement are deemed to be independent of each other and accordingly, if any term is found to be invalid, unlawful or unenforceable, such term or provision shall be deemed to be pro non scripto and the remainder of the Agreement shall continue to be of full force and effect.
        • This Agreement may be signed in separate counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. A counterpart of this Agreement in telefax form shall be conclusive evidence of the original signature and shall be as effective in law as the counterparts in original form showing the original signatures.
      3. COSTS

      The Client shall be liable to pay on demand, all costs incurred by Channel Mobile in enforcing the terms of this Agreement which shall include but not be limited to:

      • legal fees on an attorney and own client scale;
      • all disbursements incurred including sheriff’s fees and costs of counsel;
      • tracing costs; and
      • collection costs at 10% of each payment made in reduction of the outstanding amount, interest and costs.

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