:: SmS Farm - Terms & Conditions::

The following are the terms and conditions for use of the Smsfarm Service ("Smsfarm Service" or "the Service") by any customer (hereinafter referred to as "the User").

IMPORTANT: In terms of section 11 of the Electronic Communications and Transactions (ECT) Act 25 of 2002 and the common law of contract, these terms and conditions are valid binding and enforceable against all persons that access the Smsfarm website, web pages or any part thereof. If you do not agree to be bound by these terms and conditions you may not use the Smsfarm website. Reasonable use of the Smsfarm website shall automatically bound the user to this agreement.

BY PLACING SMSFARM PRODUCTS ON A WEBSITE AND/OR ACCESSING ANY PART OF THE SMSFARM SERVICE, THE USER IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT. SHOULD THE USER NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, OR CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, HE/SHE/IT SHOULD CLOSE THE BROWSER WINDOW; THEREFORE TERMINATING THE REGISTRATION PROCESS WILLFULLY, AND AGREEING TO STOP ALL USE OF THE SERVICE AND SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE.

IF THE USER IS DEEMED TO HAVE ORDERED THE SERVICE, SMSFARM'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY SMSFARM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

THE USER AGREES THAT ALL TERMS AND CONDITIONS HEREWITH PUBLISHED SHALL BE BINDING AND THAT SHOULD THERE BE A CONTRADICTION BETWEEN PRODUCT- SPECIFIC TERMS AND CONDITIONS, AND GENERAL TERMS AND CONDITIONS, THE PRODUCT-SPECIFIC TERMS AND CONDITIONS SHALL APPLY
DEFINITIONS AND INTERPRETATION

The Smsfarm website means the Smsfarm website located at www.smsfarm.com including any page, part or element thereof, as owned and operated by Smsfarm. The Smsfarm is part of the New Media Farm, a company registered under the laws of England and Wales under company number 05830080.
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User/User means any person or entity who enters or uses the Smsfarm website, notwithstanding the fact that such person only visits the home page of the Smsfarm website.
Hyperlinks herein should be deemed to be part of these terms and conditions in terms of section 11(3) of the ECT Act.

1. THE SERVICE
The Service consists of a browser interface, message application, SMS gateway access, e-mail facility, data encryption, data transmission, data access, data storage and, if applicable, synchronization software. 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. These costs will be displayed during the registration process. All fees are payable upfront, prior to credits being activated.
Smsfarm makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. Smsfarm reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time with on 14 days notice. All fees paid to Smsfarm when such termination occurs are addressed in the sections below.
Messages shall be deemed to have been delivered when Smsfarm has delivered/sent the messages to the immediate destination that Smsfarm's software is programmed to do, 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. Smsfarm does not guarantee delivery on behalf of Mobile telephone networks of mail servers.
Smsfarm lays no claims to its network coverage. Although Smsfarm focuses on providing extensive coverage aggregation services, mobile networks may choose from time to time to not be part of Smsfarm or its service providers' networks. This may result in messages not being delivered.

2. USE OF PROPRIETARY SOFTWARE
Subject to the terms and conditions of this Service Agreement and UK Law, Smsfarm grants the User an individual, personal, non-sub licensable, non-exclusive and non-transferable license ("the License") to use its proprietary 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 Smsfarm 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 Smsfarm products and/or services. As between the parties, the User acknowledges that Smsfarm, 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 OR User PRIOR TO ENTERING INTO THIS AGREEMENT.

3. MEMBER ACCOUNT, PASSWORD, AND SECURITY
To open an account for usage of the Service, the User must complete the registration process by providing Smsfarm with current, complete and accurate information as prompted by the Membership/registration Form. Inaccurate details will result in suspension. The User will also choose a password and an account name will be assigned. 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. Smsfarm will not be held liable to any third party claims and/or actions taken with respect to services offered.
The User agrees to notify Smsfarm immediately of any unauthorized use of its account or any other breach of security.

4. MEMBER PRIVACY
It is Smsfarm's policy to respect the privacy of the User. Smsfarm will not monitor, edit, or disclose any personal information about the User or the User's Smsfarm account, including its contents, without the User's prior permission unless Smsfarm 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 Smsfarm; (3) enforce this Service Agreement or protect Smsfarm's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by Smsfarm; (4) respond to request for identification in connection with 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. Smsfarm's service transmits the Sender's name (From field) and/or email address with each message that the end-user sends The User agrees that Smsfarm may access its account, including its contents, as stated above or to respond to service or technical issues.

THE USER HEREBY GRANTS SMSFARM THE RIGHT TO SEND THE USER COMMUNICATION VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT SMSFARM DEEMS IMPORTANT FOR THE USER TO KNOW, RELATING TO THE SERVICE.

5. MO AND PREMIUM RATED SERVICES
Smsfarm's services relating to Mobile Originated ("MO") and Bi-directional messaging are described in "Appendix to HTTP, SMTP, FTP, XML, SMPP and COM API 1.9 and 2.0 MO and Bi-directional Messaging Services Only" ("MO terms"). Should there be a discrepancy between the MO Terms and this agreement, this agreement shall prevail.
Smsfarm offers MO and premium rated services ("premium rated services") in certain territories. This is subject to change and can be confirmed with Smsfarm from time to time.
Any User wishing to use Smsfarm's premium rated services shall do so subject to such terms and conditions as may be imposed by Smsfarm in its premium rated application forms ("the application form").
The costs associated with the premium rated services shall be as set out in the application form.
Smsfarm will collect MO messages and pass these on to the User in the methods described by Smsfarm. The User will be responsible for content of the service, as well as the cost of any and all bearer charges to provide the content to the end-client.
The User shall not use, or knowingly allow others to use, the lines (MO Numbers) for any purpose which in Smsfarm's opinion is improper, immoral or unlawful.
The User will not act, or omit to act, in any way likely to injure or damage any person, property or the Smsfarm gateway or cause the quality of the MO number lines or Smsfarm's service in general to be impaired or interrupted in any manner whatsoever.
Smsfarm shall be entitled, at any time, and without liability to the User or any third party, to modify, expand, improve, maintain or repair the Smsfarm service or the MO number ranges, notwithstanding that this may require suspending the operation of the Smsfarm MO service. Smsfarm shall use its reasonable endeavors to provide the User with advance notice of any such suspension and to minimise the duration thereof in so far as this is reasonably practical.
The User warrants that their MO SMS Services do not and will not contravene any laws or regulations of the UK, or the countries in which these services are offered, and in particular any laws relating to privacy, spamming, gaming and gambling and the User indemnifies, holds harmless and shall defend Smsfarm against any claim, action or damage suffered or incurred by Smsfarm as a result of a breach by the User of this warranty.

PLEASE NOTE: In order to ensure that Smsfarm complies with industry codes of conduct, users are obliged to route all MT messages related or associated directly or indirectly with any Smsfarm hosted short code via Smsfarm's messaging gateway. This will enable Smsfarm to ensure that all premium rated- and short code messaging services offer the required confirmation messages as stipulated by the various codes of practice and that such messages can be validated as having been submitted. Smsfarm shall be entitled to immediately terminate the User's services if the User does not comply with the provisions of this clause, without any liability to the User or any third party.
The User will not be entitled to use any of Smsfarm's trademarks (whether registered or unregistered) or to make reference to Smsfarm in any advertising, publication or communication related to the MO or bi-directional SMS Services or otherwise, other than such usage as permitted by Smsfarm in writing.

Should the User's account be used by users for such networks as Smsfarm charges for incoming messages, the User shall be responsible for such costs in full. These charges are published by Smsfarm from time to time, and can be amended by Smsfarm as and when Smsfarm deems it necessary. Smsfarm shall have the right to subtract such message credits as are necessary to redeem the said charges from the User's Smsfarm account at the end of each calendar month.
For message credits subtracted for incoming messages from the User's account by Smsfarm, the User shall at all times ensure that there are enough credits in its account to be subtracted by Smsfarm. Should there not be sufficient credits in the User's account at any time to be subtracted by Smsfarm for the charges owed to Smsfarm, Smsfarm reserves the right to terminate this agreement immediately.
The charges applicable to this service can be requested from Smsfarm via e-mail by the User.

PLEASE NOTE: For shared premium rate numbers, a minimum monthly volume of 500 MO message per network per month will be required before Smsfarm will pass on revenue to its Users.

PLEASE NOTE: For a non-shared premium rate number, some networks require a minimum of 2000 MO messages per number to be sent to that number per month. Should this not be the case, Smsfarm shall be entitled to terminate its agreement with the User on 7 (seven) days' notice.
All messages sent in reply to any MO messages will be charged at our standard MT rates as published form time to time. Any revenue will be paid to Users after 90 days (in some cases more) after receipt thereof by Smsfarm from the network involved. In the event of any difference between either the records of Smsfarm, the records of the User or the network's, the figures from the operators shall be deemed to be correct and binding on the User.

6. ADVERTISING GUIDELINES: PREMIUM RATED SERVICES
This section is only applicable to Users who use the Smsfarm Premium Rate Service.
For the purposes of this section-
" Network Charges " refer to the tariff charged for the use of the Mobile Network Operators, e.g. SMS, MMS, USSD, GPRS etc; " Content/Value Added Service Charges " refer to the tariff charged for the # (choose applicable word) result/message/event etc delivered by the # (insert relevant ICSTIS service name); This section regulates the manner in which the User must advertise their services If the User does not advertise its service in the manner specified in these rules then Smsfarm will be entitled to withhold the monthly revenue for that service. Revenue will continue to be withheld until the advertising has been remedied to the full satisfaction of Smsfarm. Smsfarm's decision shall be final and binding on the User. Notwithstanding the aforementioned penalty, Smsfarm reserves the right to suspend and/or terminate a service and/or this agreement in the event of a repeated breach of its terms.

As a User you are selling content to an end-client ("the client"). A contract of sale can only be valid if the buyer and seller agree on the price. Thus, at all times, when faced with a transaction a User must know the full retail price of what it is they are going to buy. Smsfarm will not tolerate hiding or obscuring the price so that the client is not fully aware of what they are going to pay. To the extent that it is possible (e.g. on your websites and brochures) the User must include reference to the definitions at the top of this section.

The price stated to the client must state that it is VAT inclusive.
The User must advertise all costs related to the final consumption of the advertised service i.e. network charges as well as content charges. For example if the service is for a polyphonic ringtone, which costs £3 by way of a premium rated SMS, which still has to be downloaded via WAP then the advert must state £3 + any potential download fees".
The client must be advised of the full retail price of the content. For example it is misleading to state that a polyphonic ringtone is £3.00, however in fact the client ends up using two £3 SMS's to get the content resulting in a net charge of £6. Therefore you must either state "£6" or "£3/SMS (2 SMS)."

The font size of the price of content must be in such a size that it is easily visible from the advert. The client must be able to view the price with very little effort. The price must be located on the advert in such a place that it is easily visible to the client. Essentially the client must be able to see the price when looking at the advert without having to search the advert for the price. The price may not be hidden in the terms and conditions. The price may not be stated in some adverts for a service and not in others. Where a client is given the option to unsubscribe for a service, only network charges should be charged to unsubscribe and premium content rates must not apply. Where possible the material terms and conditions must be stated in the advert and only where it is not possible to do so, will incorporation by reference be permitted i.e. where reference is made to the terms and conditions being available on a website.

The User is not allowed to use the Smsfarm logo, trademark, slogan or any other device or form of intellectual property belonging to Smsfarm in your advertising without the prior written consent of Smsfarm.
In all advertising where it is possible to do so, the User's name must be stated so that the client is made aware that it is the User and not Smsfarm that is offering the User's service. Expressions such as "offered by or bought to you by X (Pty) Ltd" are sufficient.

7. MESSAGE AND OTHER LIMITATIONS
Smsfarm assumes no responsibility for the deletion or failure to store information. Smsfarm has set no fixed upper limit on the number of messages the User may send through the Service apart from how many units are left in the User's account; however, Smsfarm reserves the right, at its sole discretion, to determine whether or not the User's conduct is consistent with the letter and spirit of the Service Agreement and may terminate the Service if the User's conduct is found to be inconsistent with the Agreement. Please see POINT 17 below for more information on procedure at termination of the service. Smsfarm may, in the future, with prior notification, limit the amount of storage space available to each Member.

The sender ID that may be sent as part of mobile text messages is not a guaranteed feature and may not be sent without any notification.
Although Smsfarm 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 "delivered".

8. MEMBER CONDUCT
Any unauthorized commercial use of the Service, is expressly prohibited. 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:
i. Use the Service in connection with junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);
ii. Harvest or otherwise collect information about others, including email addresses, without their consent;
iii. Create a false identity mobile phone address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
iv. Transmit through the Service, associate with the Service or publishing with the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
v. Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
vi. Libel, defame or slander any person, or infringe upon any person's privacy rights;
vii. Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
viii. Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
ix. Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
x. Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or
xi. Engage in any other activity that Smsfarm believes could subject it to criminal liability or civil penalty or judgment.

9. FEES, PAYMENT AND YOUR RIGHT TO CANCEL
Fees. In consideration for the use of Smsfarm's services, the User shall pay to Smsfarm 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. Smsfarm 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.
All fees are payable upfront. Failure to purchase credits upfront will result in suspension of the services. Upfront payment refers to a payment that is made within a reasonable time so as to allow Smsfarm to add the SMS credits to the User's account.
Payment. Transaction fees are due and payable at the time of or before Smsfarm delivers a message to the User's recipients, via every method of delivery based upon the billing plan selected by Smsfarm. Payment shall be deemed to have been made as soon as the fee is available in Smsfarm's bank account.
Credit Card Payment. If the User has elected to pay for the Service by credit card, and Smsfarm does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by Smsfarm. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment, when such payment is made. Smsfarm reserves the right to come to other payment arrangements on a case-by-case basis. (Agreements with the credit card issuer govern use of the User's credit card, and the User must refer to that agreement to ascertain its rights and liabilities as a cardholder.) The User is charged in Pound Sterling and conversion rates are worked out once a day against the EURO. This may change the sales price due to currency fluctuations. The final purchase amount is the amount reflected on the Credit Card holder's statement.
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 Smsfarm, which will be posted in the Billing Information section or similar location within the Smsfarm web site. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to support@smsfarm.com .
Should there be a cost increase AFTER the User has purchased message units from Smsfarm; Smsfarm will give the User 14 days' notice of such an increase, which will be applicable to such credits that are still in the User's message unit account. Within this notification period the User may decide to continue with the service and the said increase, or to suspend the service upon which Smsfarm will refund the User to the value of any message unit credits that may be left over in the User's account.
The User acknowledges that Smsfarm is dependant on various telecommunications networks and institutions for the delivery of its messages and that Smsfarm may adjust its prices and offering, should the prices be adjusted due to reasons which are not in Smsfarm's control. Smsfarm undertakes to notify the User of such adjustments in writing, prior to implementing such adjustments. Should there be a cost increase AFTER the User has purchased message units from Smsfarm; Smsfarm will give the User 14 days' notice of such an increase which will be applicable to such credits that are still in the User's message unit account. Within this notification period the User may decide to continue with the service and the said increase, or to suspend the service upon which Smsfarm will refund the User to the value of any message unit credits that may be left over in the User's account. Should the User's account not have any credits left, the said account will automatically expire. The account will be re-activated upon payment for new message units. Any message units purchased must be used up within 120 days from the date on which it had been purchased. Smsfarm may extend this period on a case-by-case basis at its sole discretion.
Refunds for SMS message credits: The User can request a refund of monies paid to Smsfarm within 7 days of making any purchase of SMS message credits from Smsfarm, provided t hat there are enough credits in the User's account to be subtracted by Smsfarm, i.e. all messages sent will be subtracted from the User's account. 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 units sent. There is a 10% charge on all refunds.
Refunds for branding fees, licenses, monthly administration fees, and any other fee that the User pays to Smsfarm, which excludes all SMS mess age credit fees: no refunds will be made for any fees which are not related to SMS message credits.
Credit-based billing principles. Smsfarm is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on Smsfarm's coverage pages from time to time, and Smsfarm charges the published rate when a message is sent through the system. The User may however select the bands or profiles which will apply to specific products, thereby defining the maximum charge per message. The User understands that the number of credits to a specific destination network may change due to various factors, and that Smsfarm may adjust these rates whenever it deems it necessary to do so. Should the User not have selected a specific band or profile that supports delivery to a specific destination, the User understands and accepts that messages sent may not be delivered to such destinations. Conversely, should the User have chosen specific bands which support a higher credit rate per message, and is not aware that a specific route at the time of sending the message to Smsfarm will be charged at the said higher rate, the User accepts that he/she/it will be charged at whichever rate was at that stage applicable to the desired destination network or MSISDN number.

10. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION
Modification of Terms. Smsfarm frequently updates, modifies, and otherwise continually seeks to improve the Smsfarm services and products. Such changes often dictate that Smsfarm simultaneously modify Smsfarm's Terms and Conditions of Use. As such, Smsfarm shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the Smsfarm service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting 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 canceled 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.
Termination, Cancellation and/or Suspension by Smsfarm; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by Smsfarm at any time if, in Smsfarm's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by Smsfarm shall be effective immediately upon notification by Smsfarm to the User in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, Smsfarm 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. Smsfarm reserves the right to suspend the User's service at any stage for any reason it may deem necessary to continue to provide any of its services in a way that may be hindered by the User's status as being an Smsfarm Client, financial status of the User or the content of the messages originating from the User.
In the event that Smsfarm receives complaints from recipients or third parties with respect to the use of the Service, Smsfarm additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its clients and application Users.
Termination or Cancellation by the User. The User is free to terminate or cancel this Agreement at any time, in accordance with Section 7(E).
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 Smsfarm (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 Smsfarm and remove all Smsfarm software and applications on any computer, database, server (local or remote) in your possession or under its control. Smsfarm shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below.
Financial obligations of Smsfarm upon Termination and/or Cancellation. Should the termination of services result in a situation where the User still has credits (or messages that are pre-paid) at any stage, the User shall receive back the monetary value of such credits in full, save any expenses that may be incurred by Smsfarm to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement.

11. NO WARRANTIES OR LIABILITIES
GENERALLY. SUBJECT TO THE PROVISIONS OF SECTIONS 43(5) AND 43(6) OF THE ECT ACT , IF APPLICABLE, AND AS FAR AS ALLOWED BY LAW, SMSFARM (INCLUDING ITS OWNERS, EMPLOYEES, SUPPLIERS, INTERNET SERVICE PROVIDERS, PARTNERS, AFFILIATES AND AGENTS) SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE INCURRED BY WHOMEVER AND RESULTING FROM USE OF THE SERVICE AND THE INTERNET GENERALLY, ACCESS TO THE SMSFARM WEBSITE, ACCESS TO WEBSITES LINKED TO T HE SMSFARM WEBSITE, INABILITY TO ACCESS THE SMSFARM WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE SMSFARM WEBSITE, CONTENT AVAILABLE ON THE SMSFARM WEBSITE, SERVICES AVAILABLE FROM THE SMSFARM WEBSITE, PRODUCTS AVAILABLE FROM THE SMSFARM WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE SMSFARM WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO SMSFARM'S GROSS NEGLIGENCE AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT SMSFARM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. SMSFARM WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SMSFARM AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRA NTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS SMSFARM AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
Whilst Smsfarm will ensure that the service is reasonably available at all times, and will at all times endeavor to maintain connections to as many aggregators, gateways and Carriers as are, in its discretion, commercially viable and make all upgrades to the Smsfarm API available to The User in a commercially reasonable and timely manner, the User acknowledges that Smsfarm cannot guarantee the availability of a Carrier's SMSC. Thus User expressly acknowledges and agrees that use of the service and the internet generally is at its own risk and that Smsfarm is provided "as is" and "as available" without any warranties whatsoever, express or implied. Smsfarm will use commercially reasonable efforts to make access to Smsfarm available to the User, through the required access protocols, but makes no warranty or guarantee that the User will be able to access Smsfarm at any particular time or any particular location.
Information, ideas and opinions expressed on the Smsfarm website should not be regarded as professional advice or the official opinion of Smsfarm, and Users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the Smsfarm website.
Smsfarm does not make any warranties or representations that the Smsfarm website shall be available at all times. Users acknowledge that the Smsfarm website may be unavailable due to updates or other causes beyond the reasonable control of Smsfarm, including, but not limited to virus infection, unauthorised access (hacking), power failure or other "acts of God".

Smsfarm does not make any warranties or representation that content and services available from the Smsfarm website shall in all cases be true, correct or free from any errors. Smsfarm shall take all reasonable steps to ensure the quality and accuracy of content available from the Smsfarm website.
ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), Smsfarm and its affiliates, agents, content providers, service providers, and licensors:
(i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF SMSFARM GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPER ATION OF SMSFARM GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
(ii) 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 SMSFARM PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE);
WITHOUT IN ANY WAY LIMITING THE FOREGOING, SMSFARM 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.
HIGH RISK ACTIVITIES. THE SMSFARM 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 SMSFARM 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, SMSFARM 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.
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, SMSFARM'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.

12. THIRD PARTY BENEFICIARIES
Notwithstanding anything to the contrary contained herein, the provisions for "No Warranties and Liabilities" set forth in Section 9 herein, are for the benefit of Smsfarm 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.

13. INDEMNIFICATION
The User agrees to indemnify, hold harmless, and defend Smsfarm 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 your 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. Smsfarm reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User.

14. MISCELLANEOUS
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.
The Smsfarm website is hosted, controlled and operated from the UK and therefore the UK law enforced by the UK courts, subject to the arbitration provisions elsewhere in this document, governs the use or inability to use the Smsfarm website, its content, services, products and these terms and conditions. Thus this Agreement shall be governed by and construed and interpreted in accordance with the law of the UK.
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 Smsfarm 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. All notices under this Service Agreement will b e in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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 Smsfarm and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

15. SMSFARM API SPECIFIC TERMS & CONDITIONS
Smsfarm offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to Smsfarm's Gateway. These terms do not exclude the aforegoing terms in this agreement.
i. Smsfarm reserves the right to approve clients and API connections at its sole discretion.
ii. Smsfarm encourages the use and publicity of anti-spam policies.
iii. The User will be supplied with a login and password and will need to specify what IP Address range the messages will be posted from. This will ensure that the connection is at all times secure from Smsfarm's side. Security measures over and above this will be the User's responsibility.
iv. Although Smsfarm 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 Smsfarm informing the User that it has changed. It is the User's sole responsibility to test the specifications thoroughly on a regular basis, as Smsfarm will not accept responsibility for specifications that may be incorrect or incomplete.

16. ECT ACT
Access to the services, content, software and downloads available from the Smsfarm website may be classified as "electronic transactions: as defined in terms of the ECT Act and therefore users have the rights detailed in Chapter 7 of the ECT Act and Smsfarm has, amongst others the duty to disclose the following information:
i. The full name and legal status of the website owner: Smsfarm which is part of The New Media Farm Limited, a company registered under the laws of England and Wales under company number 05830080.
ii. Directors
iii. Street Address: P.O. Box 584, Waltham Cross, Hertfordshire, England , EN8 1AX
iv. Postal Address: P.O. Box 584, Waltham Cross, Hertfordshire, England , EN8 1AX
v. Physical Address for receipt of legal service: P.O. Box 584, Waltham Cross, Hertfordshire, England , EN8 1AX
vi. Main Business: http://www.Smsfarm.com
vii. Website Address of the Smsfarm website: http://www.smsfarm.com
viii. Official email address of the Smsfarm website is: support@smsfarm.com
ix. Membership of self-regulatory or accreditation bodies: ICSTIS
Although the time and place of the agreement detailed herein, are concluded and governed by what follows hereunder, the time and place agreements for the sale of goods and/or the provision of services (as advertised on the Smsfarm website) are governed by this clause and shall be deemed to have been concluded in the UK; and Smsfarm may refuse an offer if the User, amongst others, fails to meet the conditions of Smsfarm's credit referencing procedure.
Users may lodge complaints concerning the Smsfarm website with Smsfarm at support@smsfarm.com
The User and Smsfarm agree that:
i. the User shall be bound to these terms and conditions and such agreement is concluded in Smsfarm (UK) at the time the User enters the Smsfarm website for the first time;
ii. data messages (as defined in the ECT Act ) addressed by the User to Smsfarm shall only be deemed to have been received if and when responded to, or when receipt is acknowledged. Notwithstanding section 23(1)(b) of the ECT Act Smsfarm shall not be deemed to have received a data message if such data messages are blocked and/or filtered and/or destroyed by Smsfarm's content filtering and virus security systems;
iii. data messages (as defined in the ECT Act ) addressed to the User by Smsfarm shall be deemed to be received by the User as detailed in section 23(1)(b) of the ECT Act ;
iv. data messages (as defined in the ECT Act ) addressed to the User by Smsfarm shall be deemed to be sent from the location(s) as detailed in section 23(1)(c) of the ECT Act
v. data messages (as defined in the ECT Act ) addressed by the User to Smsfarm shall be deemed to have been created and sent by the User from within the geographical boundaries of UK; and
vi. electronic signatures, encryption and/or authentication are not required for valid electronic communications between the User and Smsfarm.

17. USE OF SITE
Smsfarm licenses the User to view, download, save and print the content of the Smsfarm website, provided that such content is used for private, personal, educational and/or non-commercial purposes only or to view, download, save and print this agreement for legal and/or evidential purposes as detailed in section 11(3) of the ECT Act .
Content from the Smsfarm website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of Smsfarm.
Users may only access, browse and use the Smsfarm website for legitimate personal or commercial purposes and may not use the Smsfarm website or any Smsfarm services and/or products for:
i. harmful purposes;
ii. illegal purposes;
iii. disclosing, sharing or publishing material that may be offensive, defamatory, regulated, prohibited, infringing or damaging to any person; and/or
iv. the creation, storage and sending of unsolicited commercial communications.
The caching of the Smsfarm website shall only be allowed if:
i. the purpose of the caching is to make the onward transmission of the content from the Smsfarm website more efficient;
ii. the cached content is not modified in any manner whatsoever;
iii. the cached content is updated at least every 12 (twelve) hours; and
iv. the cached content is removed or updated when so required by Smsfarm.
If any User uses content from the Smsfarm website in breach of the provisions detailed herein:
i. Smsfarm reserves the right to claim damages from the User;
ii. Smsfarm reserves the right to institute criminal proceedings against the User; and
iii. Smsfarm shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the User or any third party who obtained any content from the User.
Hyperlinks to the Smsfarm website from any other source shall be directed at the home page of the Smsfarm website. Links beyond the Smsfarm home page may only be used with Smsfarm's prior written consent.
Smsfarm shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of content, products or services available from the Smsfarm website, if such content, products or services was accessed through a hyperlink not directed at the home page of the Smsfarm website. Persons that wish to link to pages beyond the home page of the Smsfarm website without Smsfarm's prior written consent shall do so at their own risk and indemnify Smsfarm against any loss, liability or damage that may result from the use of such hyperlinks. Smsfarm's non-liability for deep linking is based on the fact that deep links bypass these terms and conditions.
Users may quote small and reasonable amounts of content available from the Smsfarm website and only if such a quote is placed in inverted commas and acknowledged.
No person may, without the prior written consent of Smsfarm, frame the Smsfarm website in any manner whatsoever.
Apart from bona-fide search engine operators and use of the search facility provided on the Smsfarm website by Users, no person may use or attempt to use any technology or applications (including web crawlers, robots or web spiders) to search, collect or copy content from the Smsfarm website for any purpose whatsoever, without the prior written consent of Smsfarm.
E-mail addresses, names, telephone numbers and fax numbers published on the Smsfarm website may not be incorporated into any database, used for electronic marketing or similar purposes. No permission is given or should be implied that information on the Smsfarm website may be used to communicate unsolicited communications to Smsfarm and all rights detailed in 45 of the ECT Act are reserved.
All licenses and/or permissions granted in terms of this section are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Smsfarm at any time without prior notice or reasons.

18. EXTERNAL LINKS
Smsfarm may provide hyperlinks to websites not controlled by Smsfarm ("target sites") and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or services of such target sites. Smsfarm does not editorially control the content, products and/or services on target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use, inability to use or content available on or through target sites.

19. SECURITY
Smsfarm shall take all reasonable steps to secure the content of the Smsfarm website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, Smsfarm does not make any warranties or representations that content shall be 100% safe or secure.
Subject to the provisions of sections 43(5) and 43(6) of the ECT Act and the requirements for a valid electronic invoice issued by the UK Revenue Service from time to time, if applicable, Smsfarm is under no legal duty to encrypt any content or communications from and to Users and is also under no legal duty to provide digital authentication of any pages on the Smsfarm website.
Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, robots or spyware, to the Smsfarm website or the server and computer network that support the Smsfarm website.
Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Smsfarm website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Smsfarm harmless against any and all liabilities, damages, risks and losses that Smsfarm and its partners/affiliates may suffer as a result of such delivery, attempt or damaging code.
Users may not develop, distribute or use any device or programme designed to breach or overcome the security measures of the restricted pages, products and services on the Smsfarm website and Smsfarm reserves the right to claim damages from any and all persons involved, directly and indirectly, in the development, use and distribution of such devices or programmes.
Users who commit any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liabilities, losses, destruction or damages suffered and/or incurred by Smsfarm and its partners/affiliates due to or related to these illegal actions.

20. INTERCEPTION OF COMMUNICATION
Subject to the provisions of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the User agrees to Smsfarm's right to intercept, block, filter read, delete, disclose and use all communications (including all "data messages" as defined in the ECT Act ) send or posted by the User to the Smsfarm website, its staff and employees.
The User agrees and acknowledges that the consent provided by the User above satisfies the "writing" requirement as detailed in the ECT Act and the RIC Act .

21. CODES OF CONDUCT
The User warrants that it will comply with the following codes of conduct as required by all services providers who operated service in any of the following territories. The codes of conduct are incorporated herein as is specifically stated: