1. Introduction

1.1. These terms and conditions are made between the Clickatell Group (“Clickatell”) and you or your organization (“Customer”) and govern the provision of certain defined and limited API by Clickatell and the Customers subsequent use thereof through Clickatell’s Integrations functionality (“Agreement”).

1.2. This Agreement is made subject to Clickatell’s Master Terms of Service, available online or in certain instances where a Customer has entered into a separate contract with Clickatell for the provision of services, such contract shall prevail in the event of any conflicting terms.

1.3. By utilizing the Integration functionality (the “Service”), the Customer acknowledges and agrees that the Customer has read these Terms and will be bound by them.

2. Use of Integration functionality

2.1. Clickatell hereby grants to the Customer a non-exclusive, revokable, limitable, and non-transferable right to access the Service, as further described herein.

2.2. The Customer will be able to gain access to the Service through Clickatell’s proprietary Unity platform. Full use of the Integration feature shall require the Customer to have or to acquire the use of third-party software (following such requirements as set out by those individual third-party providers).

2.3. To obtain access to the Service, the Customer must have concluded an agreement with Clickatell for either of the following proprietary products:

2.3.1. Chat Flow

2.3.2. Chat Desk

2.4. Clickatell reserves the right to amend any of the products listed in 2.3 above, at its sole discretion and on reasonable notice to the Customer.

2.5. Clickatell further reserves the right to amend, through removal, addition or limited integration, the list of third-party services available for integration on its platform at its sole discretion and on reasonable notice to the Customer.

2.6. The Customer warrants and represents that it has the right to use the third-party software and that it will use the third party software in accordance with the third party’s terms of service.

3. Third-party software

3.1. In order to utilize the Service, the Customer will require the access and/or a subscription to third party software. The Customer will be solely responsible for the act of procuring such access and the related costs for procuring such third-party software.

3.2. Clickatell has no affiliation or connection to the Third Party and its software, Clickatell makes no representations or warranties as to the suitability or reliability of the third-party software and cannot be held liable for any damages, liability, loss or any other consequence, direct or indirect, the Customer may suffer as a result of the Customers use of the third-party software.

3.3. The Customer acknowledges that

3.3.1. its use of any third-party software is done at its own risk and is beyond the scope and control of Clickatell. As such Customer indemnifies and holds Clickatell harmless for any liabilities, loss, damages, expenses or any other costs which may be incurred, through the Customers use or misuse of the third-party software.

3.3.2. its use of the third-party software is solely independent of its relationship with Clickatell and the use of Clickatell’s services. The Customer will therefore be solely responsible and liable for resolving any and all disputes which may arise between the Customer and the third party in relation to the Customer’s use of the third party’s services.

3.4. All support services required in relation to the third-party software must be directed to the applicable third party.

4. Intellectual Property

4.1. Each Party reserves their rights to their lawful intellectual property and no transfer of such rights is agreed or implied herein.

4.2. Nothing contained in this Agreement will be construed to confer or be deemed to confer on either Party the Intellectual Property rights of the other Party.

4.3. Without limiting the generality of the foregoing, each Party acknowledges the validity of the Intellectual Property of the other. Each Party agrees not to challenge the validity thereof or to claim any ownership interest therein. 

5. Term, duration and termination

5.1. This Agreement will commence on the date the Customer first accesses the Integration function and will continue indefinitely or until such time that it is terminated by either Party / will continue for a period of 1 (one) year (“Initial Period”), whereafter it will automatically renew for subsequent periods of 1 (one) year (“Renewal Period”) unless the Customer provides Clickatell with notice of non-renewal at least 30 days prior to the expiry of the Initial Period or Renewal Period, as the case may be.

5.2. Clickatell may, without cause and without penalty, terminate the agreement on 90 (ninety) days’ notice to the Customer.

5.3. The Customer may not terminate the Agreement during the Initial Period, save for where Clickatell is in breach of the provisions of this Agreement and has failed to remedy such breach within 14 business days of being made aware thereof. After the expiry of the Initial Period, the Customer may terminate the Agreement on 90 (ninety) days written notice.

6. Payment terms

6.1. Access to the Integration will be provided to Customers on Clickatell’s Unity Platform free of charge, subject to usage costs. Clickatell reserves the right to amend its pricing from time to time and will provide the Customer with reasonable written notice of such price change.

6.2. The Customer will be liable to pay the costs as set out in Schedule A hereto for its usage of the Integration services.

6.3. The costs will be included on the Customer’s service invoice as a separate line item and subject to the same payment terms as is agreed in the Master Terms of Service or the applicable agreement.

6.4. If, upon termination of the Customers account for any reason, there is a credit balance on the Customers account, such balance will be forfeited by the Customer.

6.5. All costs set out herein are separate and independent from the costs associated with acquiring the third-party software and is solely for the cost of the Customer as governed by the Customers relationship with that third party.

7. Confidentiality

7.1. The Parties will strictly protect any confidential information shared between one another as if such were their own confidential information (subject to lawful agreed exclusions).

7.2. Neither party will without the prior written consent of the other disclose or publish for any purposes the terms of this Agreement, or disclose, publish or make use of, for its own or any purposes, any Confidential Information concerning the other which may come to its knowledge as a result of the discussions leading to this Agreement, or anything done pursuant to it.

8. Indemnification and limitation on liability

8.1. The Customer hereby agrees to indemnify and defend Clickatell, its Affiliates and their respective officers, directors, employees, agents and suppliers (each an “Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party, including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against an Indemnified Party arising out of or resulting from third party claims concerning, but not limited to:

8.1.1. the Services or any content transmitted via Clickatell’s systems;

8.1.2. a material breach of the Customer’s representations, warranties or obligations hereunder;

8.1.3. any action, commission and/or omission by the Customer that constitutes a breach or contravention of any applicable law

8.1.4. the negligent acts or wilful misconduct of the Customer, its employees, contractors or agents;

8.1.5. the fraudulent or unauthorised use of the Customer’s username and/or password, loss thereof, or a failure by the Customer to update the email address and other details applicable to the Customer’s account; and/or

8.1.6. that the Customer’s use of the Services or the content transmitted by the Customer infringes or misappropriates any third-party Intellectual Property right.

8.2. the Customer acknowledges and agrees that it will be responsible for answering and defending any complaints received by Clickatell from any relevant regulatory body in connection with the Customer’s use of any of Clickatell’s Services. Clickatell undertakes to forward any such complaints to the Customer within 2 (two) Business Days of receipt of same. The Customer undertakes to follow the applicable complaint procedures and to respond to each such complaint within the timeframes specified by the relevant regulatory body in respect of the relevant complaint and will forward a copy of its response to Clickatell at the time of response. The Customer further agrees that it will be liable for any fines and/or penalties imposed by any such regulatory body on it and/or Clickatell or any of Clickatell’s Affiliates resulting from the Customer’s use of any of Clickatell’s Services in contravention of any of the provisions of this Agreement.

8.3. Clickatell hereby agrees to indemnify and defend the Customer, its officers, directors and employees (each an “Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against the Indemnified Party) from third party claims arising out of or resulting from:

8.3.1. the grossly negligent acts or wilful misconduct of Clickatell, its employees, contractors or agents; and/or

8.3.2. Clickatell’s systems infringing or misappropriating any third-party Intellectual Property right.

8.4. The obligations set forth in this clause 14 (Indemnification) are contingent upon (a) the Indemnified Party giving 10 (ten) days’ prompt written notice to the indemnifying Party of any indemnified claim, (b) the Indemnified Party allowing the indemnifying Party the sole control of the defence and related settlement negotiations for such claim, provided that the Indemnified Party will have the right to approve or disapprove any settlement or compromise, provided its approval will not be unreasonably withheld or delayed. The Indemnified Party will fully assist and cooperate in the defence and settlement negotiations as requested by the indemnifying Party so long as the indemnifying Party pays the Indemnified Party’s out-of-pocket expenses associated with such assistance and cooperation.

8.5. Clickatell assumes no liability for any copyright, trademark, patent, trade secret or other property rights infringement claims to the extent that they arise from (a) the Services being used outside the scope of this Agreement, or (b) the combination of Clickatell’s systems or Services and the way in which such systems or Services are used by the Customer. The Customer assumes no liability for any copyright, trademark, trade secret or other property rights infringement claims to the extent they arise from Clickatell’s systems or the Service.

8.6. Exclusive remedies. The provisions of this clause (“indemnification”) state the entire liability and obligation of Clickatell and the sole and exclusive remedy of customer with respect to any actual or alleged infringement of any patent, copyright, trademark or other intellectual property right or misappropriation of a trade secret.

8.7. The aggregate liability of either Party for all claims under these Terms will be limited to direct damages up to the amount paid under the Agreement for a period of 12 (twelve) months preceding the claim.

9. Data protection

10. General

10.1. Notices

10.1.1. The Parties will nominate addresses for the service of notices and in the absence thereof then electronic communication to their standard email addresses will suffice.

10.2. Governing Law

10.2.1. This Agreement and all matters or disputes arising there from or incidental thereto will be governed and construed in accordance with the laws of the applicable Jurisdiction.

10.3. Entire agreement

10.3.1. This document embodies the entire agreement between the Parties in relation to the Services set out herein and no amendment or variation of any of the provisions hereto will be of force or effect unless reduced to writing and signed by the authorized representatives of both Parties.

10.3.2. Notwithstanding the above, Clickatell reserves the right to amend these terms and conditions from to time and will communicate such amendment on Clickatell’s website.

11. Definitions

*All pricing listed herein is subject to change and is provided as a mere indicative illustration of the pricing to be applied (as at March 2023). In each instance the Customer is advised to engage with the Clickatell Sales division in respect of the latest pricing update(s).

Please note – at the expiry of each month, unused credits will fall away and not be carried over to the subsequent month(s).s