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Terms & Conditions

The following are the terms and conditions for use of the Channel Mobile Service ("Channel Mobile 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 Channel Mobile 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 Channel Mobile website. Reasonable use of the Channel Mobile website shall automatically bound the user to this agreement.

BY PLACING CHANNEL MOBILE PRODUCTS ON A WEBSITE AND/OR ACCESSING ANY PART OF THE CHANNEL MOBILE 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, CHANNEL MOBILE'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 CHANNEL MOBILE, 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 Channel Mobile website means the Channel Mobile website located at www.Channel Mobile.co.za including any page, part or element thereof, as owned and operated by Channel Mobile.

Channel Mobile means Channel Mobile (Proprietary) Limited, registration number 2002/13364/07, including its subsidiaries, owners, shareholders and business units.

Users/User means any person or entity who enters or uses the Channel Mobile website, notwithstanding the fact that such person only visits the home page of the Channel Mobile 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 messaging applications, SMS gateway integration and premium line services. 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.

Channel Mobile makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. Channel Mobile reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time within 14 days' notice. All fees paid to Channel Mobile when such termination occurs are addressed in the sections below.

Messages shall be deemed to have been delivered when Channel Mobile has delivered/sent the messages to the immediate destination that Channel Mobile'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. Channel Mobile does not guarantee delivery on behalf of Mobile telephone networks or mail servers.

Channel Mobile lays no claims to its network coverage. Although Channel Mobile focuses on providing extensive coverage aggregation services, mobile networks may choose from time to time to not be part of Channel Mobile 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 South African Law, Channel Mobile 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 Channel Mobile 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 Channel Mobile products and/or services. As between the parties, the User acknowledges that Channel Mobile, 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 Channel Mobile 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. Channel Mobile will not be held liable to any third party claims and/or actions taken with respect to services offered.

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

4. MEMBER PRIVACY

It is Channel Mobile's policy to respect the privacy of the User. Channel Mobile will not monitor, edit, or disclose any personal information about the User or the User's Channel Mobile account, including its contents, without the User's prior permission unless Channel Mobile 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 Channel Mobile; (3) enforce this Service Agreement or protect Channel Mobile's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by Channel Mobile; (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. Channel Mobile'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 Channel Mobile's Privacy Policy.

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

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

5. PREMIUM RATED SERVICES

Channel Mobile offers premium rated services ("premium rated services") in certain territories.   This is subject to change and can be confirmed with Channel Mobile from time to time.

Any User wishing to use Channel Mobile's premium rated services shall do so subject to such terms and conditions as may be imposed by Channel Mobile 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.

The User will not act, or omit to act, in any way likely to injure or damage any person, property or the Channel Mobile gateway or cause the quality of the premium number lines or Channel Mobile's service in general to be impaired or interrupted in any manner whatsoever.

Channel Mobile shall be entitled, at any time, and without liability to the User or any third party, to modify, expand, improve, maintain or repair the Channel Mobile service, notwithstanding that this may require suspending the operation of the Channel Mobile premium service. Channel Mobile shall use its reasonable endeavors to provide the User with advance notice of any such suspension and to minimize the duration thereof in so far as this is reasonably practical.

The User warrants that their Premium SMS Services do not and will not contravene any laws or regulations of the Republic of South Africa and the User indemnifies, holds harmless and shall defend Channel Mobile against any claim, action or damage suffered or incurred by Channel Mobile as a result of a breach by the User of this warranty.

PLEASE NOTE: In order to ensure that Channel Mobile complies with industry codes of conduct, users are obliged to route all messages related or associated directly or indirectly with any Channel Mobile hosted short code via Channel Mobile's messaging gateway. This will enable Channel Mobile 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. Channel Mobile 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 Channel Mobile's trademarks (whether registered or unregistered) or to make reference to Channel Mobile in any advertising, publication or communication related to the Premium SMS Services or otherwise, other than such usage as permitted by Channel Mobile in writing.

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

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

The charges applicable to this service can be requested from Channel Mobile via e-mail by the User.

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

For the purposes of this section-

" 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

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. Channel Mobile 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.

  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 Channel Mobile logo, trademark, slogan or any other device or form of intellectual property belonging to Channel Mobile in your advertising without the prior written consent of Channel Mobile.

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 Channel Mobile 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

Channel Mobile assumes no responsibility for the deletion or failure to store information. Channel Mobile 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, Channel Mobile 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 10 below for more information on procedure at termination of the service. Channel Mobile may, in the future, with prior notification, limit the amount of storage space available to each Member.

Although Channel Mobile 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 Channel Mobile 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 Channel Mobile's services, the User shall pay to Channel Mobile 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. Channel Mobile 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 Channel Mobile to add the SMS credits to the User's account.

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

Credit Card Payment. If the User has elected to pay for the Service by credit card, and Channel Mobile does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by Channel Mobile. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment, when such payment is made. Channel Mobile 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. Sales price may change 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 Channel Mobile. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to info@channelmobile.co.za.

The User acknowledges that Channel Mobile is dependant on various telecommunications networks and institutions for the delivery of its messages and that Channel Mobile may adjust its prices and offering, should the prices be adjusted due to reasons which are not in Channel Mobile's control. Channel Mobile undertakes to notify the User of such adjustments in writing, prior to implementing such adjustments. Any message units purchased must be used up within 180 days from the date on which it had been purchased. Channel Mobile may extend this period on a case-by-case basis at its sole discretion.

Refunds for branding fees, licenses, monthly administration fees, and any other fee that the User pays to Channel Mobile, which excludes all SMS message credit fees will be reviewed on a case-by-case basis at Channel Mobile’s sole discretion. No refunds will be made for any fees which are not related to SMS message credits.

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

In the event that Channel Mobile receives complaints from recipients or third parties with respect to the use of the Service, Channel Mobile 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 Channel Mobile’s terms.

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 Channel Mobile (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 Channel Mobile and remove all Channel Mobile software and applications on any computer, database, server (local or remote) in your possession or under its control. Channel Mobile shall have no obligation to the User after any termination or cancellation of this Service Agreement. Unused SMS credits will not be refunded by Channel Mobile.

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, CHANNEL MOBILE (INCLUDING ITS OWNERS, EMPLOYEES, SUPPLIERS, INTERNET SERVICE PROVIDE RS, 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 CHANNEL MOBILE WEBSITE, ACCESS TO WEBSITES LINKED TO T HE CHANNEL MOBILE WEBSITE, INABILITY TO ACCESS THE CHANNEL MOBILE WEBSITE; INABILITY TO ACCESS WEBSITES LINKED TO THE CHANNEL MOBILE WEBSITE, CONTENT AVAILABLE ON THE CHANNEL MOBILE WEBSITE, SERVICES AVAILABLE FROM THE CHANNEL MOBILE WEBSITE, PRODUCTS AVAILABLE FROM THE CLICK ATELL WEBSITE, DOWNLOADS AND USE OF CONTENT FROM THE CHANNEL MOBILE WEBSITE, AND/OR ANY OTHER REASON NOT DIRECTLY RELATED TO CHANNEL MOBILE'S GROSS NEGLIGENCE   AND THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IS AT ITS OWN RISK AND THAT CHANNEL MOBILE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. CHANNEL MOBILE WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO CHANNEL MOBILE AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRA NTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS CHANNEL MOBILE AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.

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

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

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

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

ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), Channel Mobile 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 CHANNEL MOBILE GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPER ATION OF CHANNEL MOBILE 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 WHOL E OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICE GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (The User AGREES TO INDEMNIFY CHANNEL MOBILE PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR IN TERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE);

WITHOUT IN ANY WAY LIMITING THE FOREGOING, CHANNEL MOBILE SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TI MES 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 CHANNEL MOBILE 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 CHANNEL MOBILE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVIT IES"). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, CHANNEL MOBILE 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, CLIC KATELL'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 Channel Mobile 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 Channel Mobile and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expense s (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. Channel Mobile 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.

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 Channel Mobile 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 Channel Mobile and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

16. ECT ACT

Access to the services, content, software and downloads available from the Channel Mobile 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 Channel Mobile has, amongst others the duty to disclose the following information:

i. The full name and legal status of the website owner: AppointMate (Proprietary) Limited registration number 2002/13364/07.

ii. Directors: Robert Maconachie and Mike Goodall

iii. Street Address: 35 on Rose, Office 3, Rose Street, Cape Town, 8001

iv. Postal Address: PO Box 21561, Kloof Street, 8008.

v. Physical Address for receipt of legal service: 35 on Rose, Office 3, Rose Street, Cape Town, 8001

vi. Main Business: http://www.channelmobile.co.za

vii. Website Address of the Channel Mobile website: http://www.channelmobile.co.za

viii. Official email address of the Channel Mobile website is: info@channelmobile.co.za

x. Codes of conduct to which Channel Mobile subscribes:

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

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

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

xxxi. Channel Mobile'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 Channel Mobile;

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

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

Users may lodge complaints concerning the Channel Mobile website with Channel Mobile at info@channelmobile.co.za

The User and Channel Mobile agree that:

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

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

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

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

17. USE OF SITE

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

Users may only access, browse and use the Channel Mobile website for legitimate personal or commercial purposes and may not use the Channel Mobile website or any Channel Mobile 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 Channel Mobile website shall only be allowed if:

i. the purpose of the caching is to make the onward transmission of the content from the Channel Mobile 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 Channel Mobile.

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

i. Channel Mobile reserves the right to claim damages from the User;

ii. Channel Mobile reserves the right to institute criminal proceedings against the User; and

iii. Channel Mobile 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 Channel Mobile website from any other source shall be directed at the home page of the Channel Mobile website. Links beyond the Channel Mobile home page may only be used with Channel Mobile's prior written consent.

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

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

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

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

18. EXTERNAL LINKS

Channel Mobile may provide hyperlinks to websites not controlled by Channel Mobile ("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. Channel Mobile 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

Channel Mobile shall take all reasonable steps to secure the content of the Channel Mobile website and the information provided by and collected from Users from unauthorized access and/or disclosure. However, Channel Mobile 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, Channel Mobile 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 Channel Mobile 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 Channel Mobile website or the server and computer network that support the Channel Mobile website.

Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Channel Mobile website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Channel Mobile harmless against any and all liabilities, damages, risks and losses that Channel Mobile 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 Channel Mobile website and Channel Mobile 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, destruct ion or damages suffered and/or incurred by Channel Mobile 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 Channel Mobile'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 Channel Mobile 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/pdfs/Code_Practice_10_Amended.pdf

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

WASPA SMS Advertising Guidelines:
www.waspa.org.za

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

The "Top 3 Mobile Marketing Ideas for South Africa" walks business owners through the use of simple, cost effective mobile technologies that can be integrated to current advertising or Bulk SMS Campaigns to deliver added value and consumer interaction.
 

The three ideas we explore are:

 

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