Terms and Conditions
Service
- BlueOrb undertakes to provide the Customer with value-added SMS services through the BlueOrb website ("the Service"). BlueOrb will use its reasonable endeavours to provide a prompt and continuing Service but will not be liable for any loss of data resulting from delays, non-deliveries, missed deliveries, or service interruptions caused by events beyond the control of BlueOrb, or by errors or omissions of the Customer. BlueOrb specifically excludes any warranty as to the accuracy of information received through the Service.
- Save as expressly set out herein, all conditions or warranties which may be implied or incorporated into this contract by law or otherwise are hereby expressly excluded to the extent permitted by law. In no circumstances whatsoever will BlueOrb be liable for economic, indirect or consequential loss.
- Save where the Service is terminated by BlueOrb without cause, the Customer shall not be entitled to a refund of unused credits already paid.
Term, Suspension and Termination of Service
- This contract shall be for a term of xx from the date of purchase of credits by the Customer or the contract is terminated in accordance with the terms hereof.
- BlueOrb may elect to suspend or terminate the Service immediately and without prior notice, on breach of any of the terms and conditions of this contract (or in the case of clause 1.i and 1.ii under improper use & liabilities, anticipated breach), including without limitation late or non-payment of sums due.
- From time to time certain mobile gateways, servers, or the whole or part of the Service may be closed down for routine repair or maintenance work. BlueOrb shall give as much notice as in the circumstances is reasonable and shall endeavour to carry out such works during the scheduled maintenance periods as published from time to time.
Improper Use and Liabilities
• Use by the Customer:
• The Customer acknowledges that it may only use the Service for lawful purposes. The Customer warrants that:
it shall not (or authorise or permit any other party to) use the Service to receive or transmit material which is in violation of any law, regulation or the BlueOrb Policy, or which is obscene, threatening, menacing, offensive, defamatory, in breach of confidence, in breach of any intellectual property right (including copyright), or otherwise unlawful;
• it shall not knowingly or recklessly transmit any electronic material (including viruses) through the Service which shall cause or is likely to cause detriment or harm, in any degree, to computer systems owned by BlueOrb, other customers of the Service, or any other Service users;
• the registered user of the account will keep all allocated username(s) and password(s) secure and not let them become public knowledge and that the password(s) will not be stored anywhere on a computer in plain text;
• if any password for the Service becomes known to any other unauthorised user it will inform BlueOrb immediately;
• all information they provide, including during service application, will be accurate and correct;
• any breach of these obligations shall entitle BlueOrb to immediately terminate the Service to the Customer without notice.
• The Customer hereby agrees to fully indemnify and to hold BlueOrb harmless from and against any claim brought by a third party resulting from the use of the Service by the Customer and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered or incurred directly by BlueOrb in consequence of the Customer's breach or non-observance of these terms and conditions.
• The Customer shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements awarded against BlueOrb arising from the above claims and shall provide BlueOrb with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims, at the Customer's sole expense.
• The Customer shall be liable to pay all and any additional charges in connection with the use of the Service including those levied by its telephone service provider(s).
• Use by others:
The Customer acknowledges that BlueOrb is unable to exercise control over the content of information passing over the Service, and BlueOrb hereby excludes all liability of any kind for the transmission or reception of infringing information of whatever nature.
Passwords
BlueOrb reserves the right to change the Customer's allocated password(s) at any time at its sole discretion.
Restriction on Sub-leasing/Re-selling
The Customer in entering into this contract undertakes that it will not assign, re-sell, sub-lease or in any other way transfer the BlueOrb service or part thereof. Contravention of this restriction in any way, whether successful or not, will result in the service being terminated by BlueOrb forthwith.
Assignment
BlueOrb shall be entitled to assign this Agreement either in whole or in part. This Agreement shall be personal to the Customer who shall not be entitled to assign this Agreement in whole or in part.
Data Protection
You agree that we may put your name and other information obtained about you from your subscription and the sales process into a computerised directory for internal use only, until we receive specific written instructions from you. Note that no personal details will be passed from us onto other companies, organisations or individuals not connected with servicing your subscription.
Charges
In consideration for using our services, you must pay us our charges, at the applicable rate then in effect, in the manner we specify including (without limitation) our charges for messages delivered or partially delivered using any available delivery method.
We may from time to time for limited periods offer "free trial" or similar promotions during which no charges or reduced charges shall apply. Such promotions are intended for you to test the capabilities of the service and/or for casual, personal use only. During such promotions, all these terms apply.
All charges are payable upfront
You must pay all charges upfront by buying service credits. If you have no credits, you cannot use the service. Once you have paid the upfront charges, you will only be able to use the service after a reasonable time as we need to add the credits to your account.
Payment
Charges are due and payable at the time of, or before we deliver a message to your recipients, via every method of delivery based upon the billing plan we select. Payment is deemed to have been made as soon as the charge is available in our bank account. We may make other payment arrangements in our sole discretion, on a case-by-case basis.
You shall pay all charges free of set-off, charges or deductions.
If we issue an invoice to you, you must pay the invoice within thirty (30) days of the date of the invoice.
Your failure to pay any amount when due, will constitute a breach of these terms.
In the event of any Regulatory Fine as a result of the client's service, BlueOrb shall be entitled to withhold or deduct the amount of such fine, charge or sum from any sums payable to the Customer under this agreement.
In the event that any amount on the customer's account is outstanding, BlueOrb shall be entitled to withhold or deduct this amount from any sum payable to the Customer, if applicable.
Credit Card Payment
If you choose to pay for the service by credit card, and we receive no payment from the credit card issuer, you must pay all amounts due, on demand.
Your agreement with the credit card issuer governs the use of your credit card. So, please refer to that agreement to see what your rights and obligations are as a cardholder.
We charge in South African Rand (ZAR) and conversion rates are worked out once a day. This may change the amount of the charges due to currency fluctuations. The final amount of the charges is the amount reflected on your credit card statement.
Taxes
Unless stated otherwise, all charges exclude taxes, including (without limitation) sales, use, personal property, value-added, withholding, excise, or other taxes and duties including penalties and interest. You are liable for, and must reimburse us for all taxes imposed in connection with or arising from the provision of any service (other than those assessed on our net income or capital gains). You will provide us with sufficient information to enable the timely payment of any applicable taxes. The sum payable by you upon which any taxes are based shall be increased to the extent necessary to ensure that, after the deduction or withholding of any taxes, we actually receive and retain, free from liability for such taxes, a net amount equal to the amount we would have received and retained in the absence of such taxes.
Refunds
You have the right to cancel your purchase within 7 days of making payment. A full refund will be made if no use has been made of the purchased credits within 7 days of purchase. Refunds will be given at the discretion of the Company Management.
Increase in charges
We may increase our charges at any time by notice to you.
If we increase our charges after you have bought credits from us, we will give you 14 days' notice of the increase. The increase will then apply to the credits that you have in your account.
- Within the 14 day period you may choose to -
- continue with the service subject to the increase; or
- end the service in which case we will pay to you the value of any credits that may be left over in your account.
You may then use the service again by buying new credits.
Credit-based billing principles
We can charge variable charges per message sent through our system. We publish these variable charges on the BlueOrb website from time to time. We charge the published rate when a message is sent through the system.
Interest
We may levy interest on any amounts that are not paid when due at a rate of 2% above the prime rate, calculated from due date to date of payment, both days inclusive. The prime rate is the publicly quoted basic rate of interest (expressed as a nominal annual compounded monthly in arrear rate) at which our bank from time to time lends on overdraft to its most favored corporate borrowers in the Republic of South Africa, compounded monthly in arrears and calculated on a 365 day year factor, irrespective of whether or not the year is a leap year. A certificate signed by any manager of our bank, whose qualification and authority need not be proved, setting out the prime rate shall constitute prima facie proof of the rate in question.
Currency
We charge in South African Rands (ZAR), the official currency of the Republic of South Africa, and will convert the amount to the relevant currency at the applicable conversion rate on the date of the transaction. The conversion may change the charge due to currency fluctuations. The final charge is the amount reflected on the credit card holder's statement.
We reserve the right at any time to charge in any currency other than South African Rands.
Variation
BlueOrb reserves the right to vary these terms and conditions from time to time. Such changes shall be notified to the Customer by posting on the Service website at http://www.BlueOrb.co.za. Changes in this manner shall be deemed to have been accepted if the Customer continues to use the Service after a period of two (2) weeks from the date of posting on the website.
Force Majeure
BlueOrb shall not be liable in respect of any breach of this contract due to any cause beyond its reasonable control including but not limited to, Act of God, inclement weather, act or omission of Government or public telephone operators or other competent authority or other party for whom BlueOrb is not responsible.
Acceptance
The Customer acknowledges that it has read and accepts the terms of this contract. Use of the service by the Customer shall be deemed acceptance of the terms of this contract.
Jurisdiction
This contract shall be governed by and construed in accordance with the laws of the Republic of South Africa and the Customer hereby submits to the exclusive jurisdiction of the courts of the Republic of South Africa.
ECT Act information and provisions
In this section, "data messages" means data messages as defined in the ECT Act.
Our full name and legal status: BlueOrb, registration number xxxx, a private company duly incorporated in the Republic of South Africa
• Our office: http://www.BlueOrb.co.za/contact.php
• Our postal address: xxx
• Our physical address, and address for receipt of legal service: xxxx
• Our telephone number: +27 xxxxxxx
• Our website address: http://www.blueorb.co.za
• Email address of the BlueOrb website: webmaster@BlueOrb.co.za
• Codes of conduct to which we subscribe: UK PayphonePlus code of practice ( http://www.phonepayplus.org.uk/communications_providers/cop/default.asp ), the South African WASPA ( http://www.waspa.org.za/code/index.shtml ), the USA code of conduct as per the Mobile Marketing Association ( http://www.mmaglobal.com/modules/content/index.php?id=5 ) and Consumer Best Practices Guidelines for Cross-Carrier Mobile Content Programs ( http://www.mmaglobal.com/bestpractices.pdf )
• Description of the main services we offer: http://www.blueorb.co.za
• Price of services: Please go to www.BlueOrb.co.za and click on the link to the service that you want use. Please see the section headed "Charges and payment" above.
• Manner of payment: You can pay by credit card or direct wire transfer - see http://www.blueorb.co.za/pricing.php
• Terms that apply to any transaction: Please see all the terms above.
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