Mlogik - Conditions d'utilisation

Conditions d'utilisation

Mlogik vous remercie de votre visite. Merci de bien vouloir nous accorder quelques minutes pour prendre connaissance de nos conditions d'utilisation pour l'utilisation du Service de Mlogik ("Service de Mlogik" ou "le Service") par n'importe quel client (ci-après désigné par "l'Utilisateur").
IMPORTANT: ces termes et conditions sont valides et utilisables contre toute personne accédant au site web de Mlogik, que ce soit une page web ou n'importe quelle autre partie. Si vous n'êtes pas d'accord pour être liés à ces termes et conditions, vous ne pouvez pas utiliser le site web de Mlogik. Une utilisation normale du site de Mlogik a pour effet de lier automatiquement l'utilisateur à cet accord.

EN PLACANT LES PRODUITS MLOGIK SUR UN SITE WEB ET/OU EN ACCEDANT A N'IMPORTE QUELLE PARTIE DU SERVICE DE MLOGIK, L'UTILISATEUR ACCEPTE TOUS LES TERMES ET CONDITIONS DE CE SERVICE, ET CONSENT A ETRE LIE A ET A ETRE PARTIE DE CET ACCORD. DANS LE CAS OU L'UTILISATEUR NE SERAIT PAS DU TOUT D'ACCORD AVEC LES TERMES ET CONDITIONS DE CE SERVICE, OU NE POURRAIT PAS RESPECTER CES TERMES ET CONDITIONS, IL/ELLE DEVRAIT FERMER LA FENETRE DE SON NAVIGATEUR ; METTANT AINSI FIN DE MANIERE VOLONTAIRE AU PROCESSUS D'ENREGISTREMENT, ET ETANT D'ACCORD POUR ARRETER TOUTE UTILISATION DU SERVICE ET RENONCANT A TOUTE AUTORITE POUR UTILISER LE SERVICE.

L'UTILISATEUR ACCEPTE ETRE LIES PAR LES TERMES ET CONDITIONS PUBLIES ICI ET SI UNE CONTRADICTION DEVAIT EXISTER ENTRE DES TERMES ET CONDITIONS SPECIFIQUES A UN PRODUIT, ET LES TERMES ET CONDITIONS GENERAUX, LES TERMES ET CONDITIONS SPECIFIQUES AU PRODUIT DEVRONT S'APPLIQUER.

DEFINITIONS ET INTERPRETATION

Le site web de Mlogik signifie le site web hébergé à sous le domaine mlogik.net, incluant n'importe laquelle des pages, parties ou éléments, appartenant et étant entretenu par Mlogik.

"Mlogik" signifie la société Mlogik, société déclarée au registre du commerce de Port-Louis, République de Maurice, immatriculée: xxx, incluant ses filiales, propriétaires, actionnaires et business units.

"Utilisateur" signifie n'importe quelle personne ou entité qui entre sur ou utilise or site web de Mlogik, sauf dans le cas où cette personne se contente de visiter la page d'accueil du site web.

Les liens hypertextes vers une page de ce domaine sont considérés comme étant soumis aux termes et conditions dans les termes de la section 11(3) du ECT Act.

1. LE SERVICE

Le Service consiste en une interface navigateur, une application de messagerie, un accès à la passerelle SMS, un serveur email, l'encryptage de données, la transmission de données, l'accès à des données, le stocka de données et, le cas échéant, un logiciel de synchronisation. L'Utilisateur est responsable de l'obtention et la maintenance de tous le matériel informatique, les logiciels et les équipements de communication nécessaires pour accéder au Service, et du paiement de tous les coûts d'accès (par ex. les charges du FAI et des télécommunications) inhérents à l'utilisation du Service. Ces coûts seront affichés lors du processus d'inscription. Toutes les charges sont payables par avance, avant que les crédits soient activés.

Mlogik ne donne aucune garantie quant à la disponibilité continue du Service ou de n'importe quelle fonction en particulier du Service. Mlogik se réserve le droit de changer ou de terminer le Service et/ou de modifier les termes et conditions de cet Accord à n'importe quel moment moyennant un avertissement 14 jours à l'avance. Toutes les charges payées à Mlogik lorsque le Service se termine ainsi sont traitées dans les sections ci-dessous.

Les messages sont tenus pour délivrés quand Mlogik a déliveré/envoyé les messages à la destination à laquelle le logiciel de Mlogik est relié, incluant les serveurs SMTP, les réseaux de téléphonie mobile, ou tout autre serveur intermédiaire ou API considéré comme le point de distribution du message. Mlogik ne garantit pas la livraison au nom des opérateurs de téléphonie mobile et des serveurs d'email.

Mlogik ne tiendra pas compte des plaintes liées à sa couverture réseau. Bien que Mlogik s'applique à fournir une couverture réseau étendue, les opérateurs mobiles pourraient de temps à autres choisir de ne pas traiter avec Mlogik ou ses réseaux partenaires. Ceci pourrait entrainer la non-délivrance des messages.

2. UTILISATION DE LOGICEL PROPRIETAIRE

D'après les termes et conditions de cet Accord de Service et les lois de la République de Maurice, Mlogik accorde à l'Utilisateur une licence individuelle, personnelle, non-sous licenciable, non-exclusive et non-transférable ("la License") pour utiliser son logiciel propriétaire, uniquement sous forme de code objet, et seulement en accord avec la documentation utilisateur applicable, si elle existe, et ce en accord avec l'Accord de Service de Mlogik. L'Utilisateur ne tentera pas, directement ou indirectement, de faire du reverse engineering, de la décompilation, du désassemblage ou sinon tenter d'établir le code source ou les idées sous-jacentes ou les algorithmes du logiciel; modifier, traduire, ou créer des travaux dérivés basés sur le logiciel/l'application; ou copier (excepté pour des raisons d'archivage), louer, distribuer, assigner, ou sinon transférer les droits du logiciel/de l'application; utiliser le logiciel/l'application pour timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to Mlogik products and/or services. As between the parties, the User acknowledges that Mlogik, 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 Mlogik 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. Mlogik will not be held liable to any third party claims and/or actions taken with respect to services offered.

The User agrees to notify Mlogik immediately of any unauthorized use of its account or any other breach of security.

4. MEMBER PRIVACY

It is Mlogik's policy to respect the privacy of the User. Mlogik will not monitor, edit, or disclose any personal information about the User or the User's Mlogik account, including its contents, without the User's prior permission unless Mlogik 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 Mlogik; (3) enforce this Service Agreement or protect Mlogik's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by Mlogik; (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. Mlogik's service transmits the Sender's name (From field) and/or email address with each message that the end-user sends. For more information, see Mlogik's Privacy Policy.

The User agrees that Mlogik may access its account, including its contents, as stated above or to respond to service or technical issues.

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

5. MO AND PREMIUM RATED SERVICES

Mlogik's services relating to Mobile Originated ("MO") and Bi-directional messaging are described in "Appendix to HTTP, SMTP, FTP, XML et SMPP 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.

Mlogik offre des services MO et SMS surtaxés ("SMS premium") dans certains territoires. Ceci est sujet à changement et peut être confirmé par Mlogik.

Any User wishing to use Mlogik's premium rated services shall do so subject to such terms and conditions as may be imposed by Mlogik in its premium rated application forms ("the application form").

Les coûts associés aux services premium devront etre tels que decrits dans le formulaire de mise en service.

Mlogik will collect MO messages and pass these on to the User in the methods described by Mlogik. 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 Mlogik'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 Mlogik gateway or cause the quality of the MO number lines or Mlogik's service in general to be impaired or interrupted in any manner whatsoever.

Mlogik shall be entitled, at any time, and without liability to the User or any third party, to modify, expand, improve, maintain or repair the Mlogik service or the MO number ranges, notwithstanding that this may require suspending the operation of the Mlogik MO service. Mlogik 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 Republic of South Africa, 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 Mlogik against any claim, action or damage suffered or incurred by Mlogik as a result of a breach by the User of this warranty.

The User will not be entitled to use any of Mlogik's trademarks (whether registered or unregistered) or to make reference to Mlogik in any advertising, publication or communication related to the MO or bi-directional SMS Services or otherwise, other than such usage as permitted by Mlogik in writing.

Should the User's account be used by users for such networks as Mlogik charges for incoming messages, the User shall be responsible for such costs in full. These charges are published by Mlogik from time to time, and can be amended by Mlogik as and when Mlogik deems it necessary. Mlogik shall have the right to subtract such message credits as are necessary to redeem the said charges from the User's Mlogik account at the end of each calendar month.

For message credits subtracted for incoming messages from the User's account by Mlogik, the User shall at all times ensure that there are enough credits in its account to be subtracted by Mlogik. Should there not be sufficient credits in the User's account at any time to be subtracted by Mlogik for the charges owed to Mlogik, Mlogik reserves the right to terminate this agreement immediately.

The charges applicable to this service can be requested from Mlogik 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 Mlogik will pass on revenue to its Users.

PLEASE NOTE: For a non-shared premium rate number, Vodacom requires a minimum of 2000 MO messages per number to be sent to that number per month. Should this not be the case, Mlogik 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 90 days after receipt thereof by Mlogik from the network involved.

In the event of any difference between either the records of Mlogik, 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 Mlogik Premium Rate Service.

For the purposes of this section Ð

" Network Charges " refer to the tariff charged for the use of the Vodacom Network, 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 WASP 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 Mlogik 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 Mlogik. Mlogik's decision shall be final and binding on the User. Notwithstanding the aforementioned penalty, Mlogik 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. Mlogik 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 R3 by way of a premium rated SMS, which still has to be downloaded via WAP then the advert must state "R3 + 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 Mlogik logo, trademark, slogan or any other device or form of intellectual property belonging to Mlogik in your advertising without the prior written consent of Mlogik.

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 Mlogik 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

Mlogik assumes no responsibility for the deletion or failure to store information. Mlogik 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, Mlogik 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. Mlogik 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 Mlogik 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:

Use the Service in connection with junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);

Harvest or otherwise collect information about others, including email addresses, without their consent;

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;

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;

Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;

Libel, defame or slander any person, or infringe upon any person's privacy rights;

Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;

Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;

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;

Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or

Engage in any other activity that Mlogik 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 Mlogik's services, the User shall pay to Mlogik 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. Mlogik 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 Mlogik to add the SMS credits to the User's account.

Payment. Transaction fees are due and payable at the time of or before Mlogik delivers a message to the User's recipients, via every method of delivery based upon the billing plan selected by Mlogik. Payment shall be deemed to have been made as soon as the fee is available in Mlogik's bank account.

Credit Card Payment. If the User has elected to pay for the Service by credit card, and Mlogik does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by Mlogik. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment, when such payment is made. Mlogik 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 ZAR 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 Mlogik, which will be posted in the Billing Information section or similar location within the Mlogik web site. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to info@mlogik.net .

Should there be a cost increase AFTER the User has purchased message units from Mlogik; Mlogik 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 Mlogik 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 Mlogik is dependant on various telecommunications networks and institutions for the delivery of its messages and that Mlogik may adjust its prices and offering, should the prices be adjusted due to reasons which are not in Mlogik's control. Mlogik 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 Mlogik; Mlogik 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 Mlogik 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. Mlogik 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 Mlogik within 7 days of making any purchase of SMS message credits from Mlogik, provided that there are enough credits in the User's account to be subtracted by Mlogik, 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 Mlogik, which excludes all SMS message credit fees: no refunds will be made for any fees which are not related to SMS message credits.

Credit-based billing principles. Mlogik is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on Mlogik's coverage pages from time to time, and Mlogik 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 Mlogik 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 Mlogik 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. Mlogik frequently updates, modifies, and otherwise continually seeks to improve the Mlogik services and products. Such changes often dictate that Mlogik simultaneously modify Mlogik's Terms and Conditions of Use. As such, Mlogik shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the Mlogik 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 Mlogik; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by Mlogik at any time if, in MlogikÔs sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by Mlogik shall be effective immediately upon notification by Mlogik to the User in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, Mlogik 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. Mlogik 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 a Mlogik Client, financial status of the User or the content of the messages originating from the User.

In the event that Mlogik receives complaints from recipients or third parties with respect to the use of the Service, Mlogik 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 Mlogik (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 Mlogik and remove all Mlogik software and applications on any computer, database, server (local or remote) in your possession or under its control. Mlogik shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below.

Financial obligations of Mlogik 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 Mlogik 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, MLOGIK (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 Mlogik WEBSITE, ACCESS TO WEBSITES LINKED TO THE Mlogik WEBSITE, INABILITY TO ACCESS THE Mlogik WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE Mlogik WEBSITE, CONTENT AVAILABLE ON THE Mlogik WEBSITE, SERVICES AVAILABLE FROM THE Mlogik WEBSITE, PRODUCTS AVAILABLE FROM THE Mlogik WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE Mlogik WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO Mlogik'S GROSS NEGLIGENCE AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT Mlogik IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. Mlogik WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO Mlogik AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS Mlogik AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.

Whilst Mlogik 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 Mlogik API available to The User in a commercially reasonable and timely manner, the User acknowledges that Mlogik 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 Mlogik is provided "as is" and "as available" without any warranties whatsoever, express or implied. Mlogik will use commercially reasonable efforts to make access to Mlogik available to the User, through the required access protocols, but makes no warranty or guarantee that the User will be able to access Mlogik at any particular time or any particular location.

Information, ideas and opinions expressed on the Mlogik website should not be regarded as professional advice or the official opinion of Mlogik, and Users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the Mlogik website.

Mlogik does not make any warranties or representations that the Mlogik website shall be available at all times. Users acknowledge that the Mlogik website may be unavailable due to updates or other causes beyond the reasonable control of Mlogik, including, but not limited to virus infection, unauthorised access (hacking), power failure or other "acts of God".

Mlogik does not make any warranties or representation that content and services available from the Mlogik website shall in all cases be true, correct or free from any errors. Mlogik shall take all reasonable steps to ensure the quality and accuracy of content available from the Mlogik website.

ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), Mlogik 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 Mlogik GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF Mlogik 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 Mlogik 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, Mlogik 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 Mlogik 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 Mlogik 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, Mlogik 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, Mlogik'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 Mlogik 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 Mlogik 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. Mlogik 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 Mlogik website is hosted, controlled and operated from the Republic of South Africa and therefore the South African law enforced by the South African courts, subject to the arbitration provisions elsewhere in this document, governs the use or inability to use the Mlogik 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 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 Mlogik 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 be 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 Mlogik and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

15. MLOGIK API SPECIFIC TERMS & CONDITIONS

Mlogik offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to Mlogik's Gateway. These terms do not exclude the aforegoing terms in this agreement.

15.1 Mlogik reserves the right to approve clients and API connections at its sole discretion.

15.2 Mlogik encourages the use and publicity of anti-spam policies.

15.3 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 Mlogik's side. Security measures over and above this will be the User's responsibility.

15.4 Although Mlogik 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 Mlogik informing the User that it has changed. It is the User's sole responsibility to test the specifications thoroughly on a regular basis, as Mlogik 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 Mlogik 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 Mlogik has, amongst others the duty to disclose the following information:

The full name and legal status of the website owner: Mlogik registration number xxx.

Directors: http://www.mlogik.net/brochure/company_info.php

Addresse : Port Louis, Mauritius

Main Business: http://www.mlogik.net/brochure/company_info.php

Website Address of the Mlogik website: http://www.Mlogik.net

Official email address of the Mlogik website is: webmaster@mlogik.net

Membership of self-regulatory or accreditation bodies: WASPA; GSM ; http://www.mlogik.net/brochure/members.php

Codes of conduct to which Mlogik subscribes:

SMS Code: http://www.smscode.co.za/

UK code of practice for the self-regulation of new forms of content on mobiles: http://www.o2.co.uk/abouto2/ukcodeofpractice.html

ICTIS code of practice: http://www.icstis.org.uk/icstis2002/default.asp?Node=5

The manual published in terms of the Promotion of Access to Information Act 2 of 2000 of the owner of the Mlogik website may be downloaded from: http://www.mlogik.net/brochure/information_act/manual/download.php

Management: http://www.mlogik.net/brochure/company_info.php

Description of goods and/or services: http://www.mlogik.net/brochure/product_guide.php

Manner of payment: All products have the following payment options available: Credit card Ð our on line payment system [ Login Required ], Direct Wire Transfer Ð Preferred method of payment for larger purchase amounts - Preferred method of payment for South African clients.

Special terms related to certain goods and/or services: From the main page click on the individual product and/or services and click on the reference to associated terms (if applicable).

Access to, saving and printing of terms: These terms may be saved by users by clicking on the save or print buttons on the browser/Word/Acrobat Reader Toolbar (as the case may be). Terms specific to certain products and/or services, may be printed and saved by opening the web page that details the terms and clicking on the browser/Word/Acrobat Reader Toolbar (as the case may be).

Dispatch and delivery: Upon the conclusion of a transaction, a pop-up notice informs the User of the applicable dispatch.

The manner and period within which Users may access and maintain a full record of transactions: A full record of each transaction shall be disclosed to the User, and Users are encouraged to print and/or save this information. Transaction records will also be disclosed to Users on request for a limited period from the date of the transaction.

Duration of the agreement: The minimum duration of transactions and/or periods are detailed on the associated product specific terms.

Alternative Dispute resolution: Subject to urgent and/or interim relief, all disputes in connection with, or arising from, access to the Mlogik website, inability to access the Mlogik website, the service and content available on the Mlogik website and these terms and conditions shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of Southern Africa and such arbitration proceedings shall be conducted in Cape Town and in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as (agreed, ?) between attorney and own client.

Cooling-off period: Users may return goods and/or services within 7 (seven) days as detailed in section 44 of the ECT Act and only if such goods or services are not detailed in section 42(2) of the ECT Act .

Beginning of the Service: Remote activation of goods and/or services by Mlogik shall be regarded as consent by the User as required by the provision of section 42(2)(d) of the ECT Act .

Time and place of contracting and nature of information on the Mlogik website:

The time and place data messages, such as e-mail communications between the User and Mlogik, are deemed to have been sent and received and the location from which such data messages originate are governed by what follows below.

The information, goods and/or services advertised on the Mlogik website are NOT an offer, but merely and invitation to do business;

By selecting goods and/or services and by submitting the necessary payment and/or delivery information, the User makes an offer to Mlogik, which may be accepted and/or declined at Mlogik's sole and absolute discretion;

A binding agreement between the User and Mlogik for the sale of goods, or the provision of services, is only concluded upon Mlogik's acceptance of the User's offer detailed above;

Mlogik's acceptance or refusal of an offer will be communicated to the User within a reasonable time from receipt of the User's offer by Mlogik;

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 Mlogik website) are governed by this clause and shall be deemed to have been concluded in Cape Town; and

Mlogik may refuse an offer if the User, amongst others, fails to meet the conditions of Mlogik's credit referencing procedure.

Users may lodge complaints concerning the Mlogik website with Mlogik at webmaster@mlogik.net

The User and Mlogik agree that:

the User shall be bound to these term and conditions and such agreement is concluded in Mlogik (South Africa) at the time the User enters the Mlogik website for the first time;

data messages (as defined in the ECT Act ) addressed by the User to Mlogik 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 , Mlogik shall not be deemed to have received a data message if such data messages are blocked and/or filtered and/or destroyed by Mlogik's content filtering and virus security systems;

data messages (as defined in the ECT Act ) addressed to the User by Mlogik shall be deemed to be received by the User as detailed in section 23(1)(b) of the ECT Act ;

data messages (as defined in the ECT Act ) addressed to the User by Mlogik shall be deemed to be sent from the location(s) as detailed in section 23(1 )(c) of the ECT Act

data messages (as defined in the ECT Act ) addressed by the User to Mlogik shall be deemed to have been created and sent by the User from within the geographical boundaries of South Africa; and

electronic signatures, encryption and/or authentication are not required for valid electronic communications between the User and Mlogik.

17. USE OF SITE

Mlogik licenses the User to view, download, save and print the content of the Mlogik 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 Mlogik website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of Mlogik.

Users may only access, browse and use the Mlogik website for legitimate personal or commercial purposes and may not use the Mlogik website or any Mlogik services and/or products for:

harmful purposes;

illegal purposes;

disclosing, sharing or publishing material that may be offensive, defamatory, regulated, prohibited, infringing or damaging to any person; and/or

the creation, storage and sending of unsolicited commercial communications.

The caching of the Mlogik website shall only be allowed if:

the purpose of the caching is to make the onward transmission of the content from the Mlogik website more efficient;
the cached content is not modified in any manner whatsoever;
the cached content is updated at least every 12 (twelve) hours; and
the cached content is removed or updated when so required by Mlogik.

If any User uses content from the Mlogik website in breach of the provisions detailed herein:

Mlogik reserves the right to claim damages from the User;

Mlogik reserves the right to institute criminal proceedings against the User; and
Mlogik 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 Mlogik website from any other source shall be directed at the home page of the Mlogik website. Links beyond the Mlogik home page may only be used with Mlogik's prior written consent.

Mlogik 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 Mlogik website, if such content, products or services was accessed through a hyperlink not directed at the home page of the Mlogik website. Persons that wish to link to pages beyond the home page of the Mlogik website without Mlogik's prior written consent shall do so at their own risk and indemnify Mlogik against any loss, liability or damage that may result from the use of such hyperlinks. Mlogik'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 Mlogik website and only if such a quote is placed in inverted commas and acknowledged.

No person may, without the prior written consent of Mlogik, frame the Mlogik website in any manner whatsoever.

Apart from bona-fide search engine operators and use of the search facility provided on the Mlogik 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 Mlogik website for any purpose whatsoever, without the prior written consent of Mlogik.

E-mail addresses, names, telephone numbers and fax numbers published on the Mlogik 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 Mlogik website may be used to communicate unsolicited communications to Mlogik 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 Mlogik at any time without prior notice or reasons.
18. CODES OF CONDUCT

Mlogik may provide hyperlinks to websites not controlled by Mlogik ("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. Mlogik 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

Mlogik shall take all reasonable steps to secure the content of the Mlogik website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, Mlogik 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 South African Revenue Service from time to time, if applicable, Mlogik 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 Mlogik 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 Mlogik website or the server and computer network that support the Mlogik website.

Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Mlogik website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Mlogik harmless against any and all liabilities, damages, risks and losses that Mlogik 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 Mlogik website and Mlogik 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 Mlogik 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 Mlogik's right to intercept, block, filter read, delete, disclose and use all communications (including all Ôdata messages" as defined in the ECT Act ) send or posted by the User to the Mlogik 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:

United Kingdom
ICSTIS Code:
http://www.icstis.org.uk/icstis2002/pdf/code_tenth_edition_january_2004.pdf

South Africa
WASPA SMS Code:
http://www.waspa.org.za/code/index.shtml

United State of America
Code of Conduct as per the Mobile Marketing Association (source MMA) USA:
http://www.mmaglobal.com/modules/content/index.php?id=5

Mlogik offers various SMS services and other text messaging solutions for businesses and individuals, focusing on bulk SMS, and SMS gateway integration. Additionally the company is a provider of SMS marketing products, wireless communications, corporate SMS and other turnkey text messaging solutions for web sites and businesses. Mlogik's products all utilise our SMS API or text message gateway, the heart of Mlogik's SMS server, allowing users to send bulk SMS messages globally.

Email: legal@mlogik.net