|Terms and Conditions|
Eight28 introduces MemberSMS. The following are the terms and conditions for use of the Eight28 Service ("Eight28 Service" or "the Service") by the User or the USER (hereinafter referred to as "the USER"). Please read them carefully.
IMPORTANT: BY INSTALLING MemberSMS AND/OR ACCESSING ANY PART OF THE EIGHT28 SERVICE THE USER IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS 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 TERMINATE THE REGISTRATION PROCESS, THEREFORE SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE. IF THE CLIENT IS DEEMED TO HAVE ORDERED THE SERVICE, EIGHT28'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 EIGHT28, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. THE SERVICE
The Service consists of a browser interface, message application, SMS gateway access, e-mail facility, data encryption, data transmission, data access, data storage and, if applicable, synchronization software. The USER is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Service. Eight28 makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. Eight28 reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time without notice and with immediate effect. The sender ID, although the USER is able to specify it, is not a guaranteed feature of this product.
2. USE OF PROPRIETARY SOFTWARE
Subject to the terms and conditions of this Service Agreement and English Law, Eight28 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 Eight28 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 Eight28 products and/or services. As between the parties, the USER acknowledges that Eight28, and its licensors retain ownership of all propriety applications, software, intellectual property "IP" 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.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY
To open an account for usage of the Service, the USER must complete the registration process by providing us with current, complete and accurate information as prompted by the Membership/registration Form. The USER will also choose a password and a user name to 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. Eight28 will not be held liable to any third party claims and or actions taken with respect to services offered. The USER agrees to notify Eight28 immediately of any unauthorized use of its account or any other breach of security.
4. MEMBER PRIVACY
It is Eight28's policy to respect the privacy of the USER. Eight28 will not monitor, edit, or disclose any personal information about the USER or the USER's Eight28 account, including its contents, without the USER's prior permission unless Eight28 has a good faith belief that such action is necessary to:
5. MESSAGE AND OTHER LIMITATIONS
Eight28 assumes no responsibility for the deletion or failure to store information. Eight28 has set no fixed upper limit on the number of messages the USER may send through the Service; however, Eight28 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. Eight28 may, in the future, with prior notification, limit the amount of storage space available to each Member.
6. MEMBER CONDUCT
Any unauthorised commercial use of the Service, or the resale 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:
A. Use the Service in connection with chain letters, junk mail, junk SMS messages, spamming or any duplicative or unsolicited messages (commercial or otherwise);
7. YOUR RIGHT TO CANCEL
A. 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 Eight28, which will be posted in the Billing Information section or similar location within the MemberSMS web site. Any questions concerning the appropriate method by which to cancel this Agreement, should be submitted via the MemberSMS website.
8. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION
A. Modification of Terms. Eight28 frequently updates, modifies, and otherwise continually seeks to improve the Eight28 services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, Eight28 shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the MemberSMS 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 cancelled in accordance with the procedures for cancellation set forth in this Agreement. The USER acknowledges responsibility for reviewing this Agreement from time to time and to be aware of any such changes. The current version of this Agreement may be obtained at www.membersms.com, under TERMS AND CONDITIONS.
9. NO WARRANTIES OR LIABILITIES
10. 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 Eight28 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.
The USER agrees to indemnify, hold harmless, and defend Eight28 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
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. 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 Eight28 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 Eight28 and the USER and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
13. PAYMENT FOR MemberSMS
MemberSMS is licensed by Eight28 to the user under the terms described in his agreement. The nature of the licence is described herewith:
The licence and the usage of the product, does not include any paid SMS (Mobile Text Message / Short Message Service) or Speedmail (e-mail) message units. The user receives the licence upon registration and is issued an advertised amount of Message units, as per the advertised amount (on www.membersms.com) at the time of the registration, AT NO COST TO THE USER. This is done to enable the user to TEST the software in order to make an informed purchasing decision in the future. This purchase is termed "The Initial Purchase".
Any purchases of message units made after The Initial Purchase will credit the user's account with the advertised number of message units. Such units will be credited to the User's account and will be managed as per Eight28's advertised pricing and general Terms and Conditions on Eight28's web site - www.membersms.com.
Should there be any reason for Eight28 to suspend the Client's services, Eight28 will notify the client immediately of its intention to suspend said services. Should the suspension result in a situation where the client still has credits (or message units that are pre-paid) at any stage, Eight28 reserves the right not to refund part or all of such credits. Where a refund is to be made, the client shall be notified of the monetary value of such credits, save any expenses that may be incurred by Eight28 to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs and any third-party involvement.
Payment for services, which include but is not limited to message unit purchases, shall be deemed to have been made as soon as the funds are available in Eight28's specified bank or payment account.