These Terms and Conditions are applicable on all Services rendered and Products supplied by or on behalf of the Provider. Apart from these Terms and Conditions, publicized rules, promotional conditions, guidelines and provisions pertaining to the Services and Products may apply to You upon use of certain Services of the Operator. All those provisions will be considered to form an inextricable part of these Terms and Conditions. By making Use of the Services of the Provider and the services of the Operator, you agree to these Terms and Conditions and other applicable provisions.
2. Description and Types of the Services
Clubmium (‘Company’, ‘We’) has developed a range of downloadable mobile entertainment content items, on-line as well as wireless, such as but not limited to ringtones, games, applications, videos and wallpapers available in the content portal and interactive games (collectively the ‘Services’) to certain compatible mobile devices.
Access to the Services is made available to you subject to these Terms. The Services will include access to information, data, text, software, music, sound, photographs, graphics, video, message or other materials. The Services are not intended to supply tax, accounting or legal advice, advice regarding the suitability or profitability of any security or investment, any health or medical advice, or any other advice of a personal or private nature. The Services may also include access to content and services of independent third parties. Registration and payment for the Services will take place through your mobile operator network. After your operator has confirmed to us your registration and payment, you will be permitted to download or otherwise use the Services through compatible mobile phones and other compatible devices. Access to the Services can take place (a) through an ongoing subscription model (b) as a credit model in which a bundle of credits for a defined number of individual downloads on a renewable (periodic) subscription basis is offered and (c) through a one-off (single) purchase model. Not all models might be available in your country. More specific information with regard to the Services available in your country can be found on the Website. Unless otherwise expressly indicated, no information presented in the Services or in connection with the Services shall be deemed as a binding offer by Company, but as an invitation for you to order access to the Services. Company will have the right to offer the Services, as it deems best but will try to ensure that the Services are of no lesser standard than as at the date these Terms were entered into. Subject to your right to be reimbursed fees in accordance with these Terms, Company reserves the right to modify or discontinue, temporarily or permanently, the Services provided to you. If the Service is to be permanently discontinued by us we will notify you of this fact.
3. Registration and General Access to the Services
You need to be at least eighteen years old to register for any of the Services. If you are not the person responsible for paying the mobile phone or internet bill or you are under eighteen years of age, please obtain the permission of the bill payer, parents, guardian and/or employers before registering and/ or participating in the Services. By registering and/or participating in the Services, you (1) acknowledge and confirm that, where required, you have obtained the necessary permission, consent or approval from the bill payer, parents, guardian or employer and (2) accept that you have been offered the opportunity to read and accept the Terms (including the terms from your mobile phone operator that apply) before registering for the Services. If you do not agree; do not register or use the Services. When you register for and/or use the Service you acknowledge and confirm that you have accepted these Terms and that you comply with the terms that apply in your situation, as specified above. You agree that each person who requests such Services is your agent with full authority to act on your behalf with respect to such Services. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Services, including the release of new Services, shall be subject to the Terms.
The Service will be provided to you through your mobile phone network operator. The terms and conditions of your mobile phone network operator will also apply to the provision and charging of the Services.
The charges shall become due irrespective of whether or not you actually download any content; the consideration for the charges shall solely be the provision of the right to download, receive and/or access downloadable mobile (entertainment) content.
The periodic fee (R7/day) will be charged for every subscription period the agreement is in effect. You shall pay for access to the Services and the use thereof in accordance with the price lists in force at the time of your order via your mobile phone operator. Unless otherwise indicated, the fees will be billed by your mobile phone operator on your wireless phone bill or deducted from your prepaid balance under the terms that apply with your mobile phone operator. Additional taxes and separate fees charged for text messaging and/or data transfer may apply to your registration for and/or use of the Services under the terms with your mobile phone operator or provider All fees, including fees for existing subscription agreements, are subject to change upon notice from Company and/or your mobile phone operator. Such change will be provided you with reasonable notice. If you do not accept the new fees (which will be applicable on a prospective basis only), you may cancel your subscription and/or your account effective immediately upon termination.
5. Your Responsibilities
In order to get access to the Services, you must have a mobile communications subscription with a participating wireless service provider or otherwise have access to a (mobile) communications network for which Company makes the Services available as well as any wireless service provider services necessary to download content and/or to receive SMS messages, and pay any (wireless service provider) service fees associated with any such access. You must have a working internet connection installed on your mobile phone (e.g. WAP, GPRS, UMTS). Your mobile phone must be capable of receiving text messages, ringtones, mobile games, video and/or color graphics. In addition, your mobile phone needs to be Internet-enabled to download ringtones, mobile games, video, color graphics or other downloadable Services. Company will not give refunds if you download or attempt to download Services to incompatible phones or wireless service providers or if your mobile phone is not Internet-enabled. For instructions, please check your wireless service provider's website or your mobile phone manufacturers’ website. In addition, you must provide all equipment and software necessary to connect to the Services. You are responsible for ensuring that the equipment and/or software do not disturb or interfere with Company's operations. Company shall have the right to immediately disconnect from the Services any equipment or software causing interference and to immediately terminate this Agreement. Services are for personal use only and may not be assigned or transferred to any other mobile phone number, person or entity, nor may you provide any other person or entity access to your Services, either directly or indirectly. Any conduct or activity that we believe restricts or inhibits any other user from accessing, using, or enjoying the Services will not be permitted. You agree to use the Services only for lawful purposes.
6. Intellectual Property Rights
7. Agreements for Services of Third Parties/Transactions with Advertisers and/or Sponsors
The Services may also include access to Services of independent third parties either directly or via links to sites operated by such third parties. Where reasonably possible, Company shall indicate the Services as third party content. Even though they may be co-branded with Company and therefore include Company's trademarks, the agreements for Services provided by third parties are concluded directly between you and the third party. We may also use advertisers and promoters to help offset the costs of our Services. As a condition to using these Services, you agree that we may display advertisements and other promotions on our website and deliver advertisements and promotions in connection with our Services. You also agree that you will not attempt to block or otherwise interfere with such advertisements or promotions. Some jurisdictions do not allow us to send text messages advertisements without your express consent, so the foregoing may not apply to you. We will not share your Personal Data with third parties without your consent. The inclusion of any advertising or promotion on our website or in our Services does not constitute any endorsement by Company of such content, product, service or company. We try to ensure that any advertisements or promotions are appropriate for our users. You have a right to ask us at anytime not to contact you by way of direct marketing. Company shall not be a party to, or in any way responsible for, any transaction concerning services made available from such third parties or for any content or information presented in connection with any services of third parties.
8. Privacy and Processing Data
You acknowledge that Company collects and processes ‘personal information’ (i.e. information that could be used to contact you or that you provided to us, such as full name, postal address, gender, age, opinions, estimates, knowledge, phone number or e-mail address), ‘financial information’ (i.e. credit card numbers, bank account information or passwords) or ‘demographic and usage information’ (i.e. information that you submit, or that we collect, that is neither personal information nor financial information but necessary for the proper functioning and billing of our Services, such as date regarding the start and the end and the extent of your usage of the Services), subject to the rest of this paragraph in order to operate this website (together referred to as ‘Personal Data’) and subject to the terms set out in the Privacy Statement which is an integral part of these General Terms and Conditions. Company attaches great value to the privacy of its users; however we may pass on your Personal Data to your wireless service provider or gateway service provider to secure collection of fees. Further, we may pass on your Personal Data to governmental agencies, including but not limited to courts and district attorneys' offices, for legal proceedings and the prevention of crimes. Personal Data collected by Company may be stored and processed in the Netherlands or any other country in which Company or its agents maintain facilities. By using the Services, you consent to any such transfer of Personal Data outside of your country. Your Personal Data will be deleted no later than six months after termination of your subscription. Company may store your Personal Data beyond this date if that is required by law or agreement. Company will maintain procedures consistent with applicable laws for individuals to gain access to their Personal Data and, when appropriate and upon request, correct or delete their Personal Data.
9. Disclaimer of Warranties and Limitation of Liabilities
Company, its directors, officers, employees, suppliers and agents (‘the Provider Parties’) disclaim any responsibility for any harm resulting from your use of the Services. You expressly understand and agree that access to the Services is provided on an ‘as is’ and ‘as available’ basis with no warranties whatsoever. The Provider Parties expressly disclaim to the fullest extent permitted by law all warranties, either express, implied, statutory or otherwise, with respect to the Services, including, without limitation, the implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. The Provider Parties disclaim any warranties regarding the security, reliability, timeliness, and performance of the Services. The Provider Parties do not warrant that the services will meet your requirements or that the operation of the Services will be uninterrupted and error free. No advice or information, whether oral or written, obtained by you from us or through our Services shall create any warranty not expressly made herein. You may not rely on any such information or advice. You understand and agree that you download and/or use the Services, the content, software and websites at your own discretion and risk and that you will be solely responsible for any damages to your computer system, mobile phone or loss of data that result from using the Services. Except in jurisdictions where such provisions are restricted, you agree that Company's entire liability to you or any third person, and your or any third person's exclusive remedy, in law, in equity, or otherwise, with respect to the Services provided under this agreement and/or for any breach of this agreement is solely limited to the amount you paid for such Services during the term of this agreement. Except in jurisdictions where such provisions are restricted, the Providing Parties shall not be liable for any direct, indirect, incidental, special, exemplary, punitive, third party or consequential damages (including damages for loss of business profits, business interruption, loss of business information and the like) arising out of your use, misuse or inability to use the Services, the content, software and website, even if Company has been advised of the possibility of such damages, to the extent that a country does not permit the exclusion or limitation of liability as set forth herein, Company's liability is limited to the extent permitted by law in such country.
You agree to indemnify and hold Company and its parents, members, subsidiaries, affiliates, service providers, contractors, agents, licensors, officers, directors, shareholders and employees, harmless from any loss, liability, claim, lawsuit or demand, including reasonable attorney's fees, made by any third party due to or arising out of or in connection with (a) your use of the Services, and (b) the breach by you of your representations and warranties set forth in these Terms. You shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys' fees and costs awarded against or otherwise incurred by Company in connection with or arising from any such claim, lawsuit, action, demand or other proceeding.
11. Termination and Cancellation of Services; Right to withdraw
To unsubscribe from the Services by text message, text STOP to 43006 or send an email to [email protected] In the first situation the termination shall become effective immediately upon receipt of the termination request. In the latter case, cancellation shall only become effective within 48 hours upon receipt of the termination request. Charges may still appear on your wireless service provider bill the following month as it bills retrospectively. Depending on the terms that apply from your mobile phone operator deviations from the above could apply. Please carefully check the terms from your mobile phone operator.
You agree that Company, at its sole discretion, may at any time terminate your use of and/or access to the Services and remove and discard any content within such Services, (1) if Company believes that you have violated or acted inconsistently with these Terms; (2) you fail to pay the charges within the period stated in your mobile phone subscription with your operator; (3) Company is expressly requested to do so by the operator or (4) any law, regulations, directives or governmental action renders all or any portion of the Services is unlawful or impractical. You agree that Company shall not be liable to you or any third party for any termination of your access to the Services. If you cancel your account or subscription for any reason, Company will not refund any of your fees paid to date, except as explicitly provided in any of the provisions of these Terms.
12. Miscellaneous Provisions
Assignment. You may not assign or transfer in any other way the agreement or any of your contractual rights. Company shall have the right to assign its rights and obligations under this agreement and any receivables based on this agreement to a third party upon written notice to you, provided such assignment is made under terms not less favorable to you than those in these Terms.
Changes of Terms. You acknowledge and agree that these Terms are subject to changes by Company at any time, such changes will become effective upon posting as soon as they are posted to the website. Any use of the Services after such posting shall constitute acceptance of such changes by you.
Other terms, entire agreement. These Terms are in addition to any Company or third party terms and conditions applicable to access to the Services, which may be posted in connection with such Services (‘Specific Terms’). In case of any discrepancy between the Terms and such Specific Terms, the latter shall prevail. These Terms and any other terms or documents referred to herein represent your entire agreement with Company with respect to access to and your use of the Services. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. The Service will be provided to you through your mobile phone network operator. The terms and conditions of your mobile phone network operator will also apply to the provision and charging of the Service.
Severability. If any part of the Terms are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
Waiver. Company's failure to pursue any available claim or defense pursuant to these terms or otherwise will not be a waiver of such claim or defense. The headings used in these Terms are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.