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Erotic Mobile TERMS AND CONDITIONS OF USE AND ACCESS



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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 WEBSITE, INCLUDING ANY LINKS THEREON; USE THE SERVICES AND/OR SOFTWARE AND/OR DOWNLOAD AND/OR INSTALL THE SOFTWARE. SHOULD YOU NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ENGAGE IN ANY OF THE ACTIONS LISTED IMMEDIATELY ABOVE, AS ENGAGING IN ANY SUCH ACTIONS SHALL AUTOMATICALLY BIND YOU TO THESE TERMS AND CONDITIONS.

1. DEFINITIONS AND INTERPRETATION

In this agreement:
1.1 clause headings are for convenience and shall not be used in its interpretation;
1.2 unless the context clearly indicates a contrary intention
1.2.1 an expression which denotes
1.2.1.1 any gender includes the other gender;
1.2.1.2 a natural person includes an artificial person and vice versa;
1.2.1.3 the singular includes the plural and vice versa;
1.2.2 the following expressions as appear in the Agreement shall bear the meanings assigned to them below
1.2.2.1 "Agreement" means the terms and conditions of access and use and contained in this document;
1.2.2.2 "Java" means the object-oriented programming language developed by Sun Microsystems, Inc;
1.2.2.3 "Parties" means Central Bridge Trading 71cc, Erotic Mobile and the User collectively;
1.2.2.4 "Prescribed Actions" means the accessing of the Website, including any links thereon; use of the Services and/or Software; downloading and/or installing the Software.
1.2.2.5 "Services" means the services available via the Website and the Software, which shall include mobile instant messaging, group chat as well the downloading of the Software and Content
1.2.2.6 "Software" means the basic JAVA application that resides on a cellular telephone which enables use of the Services and which is available free of charge. Software is required to enable the Services.
1.2.2.7 “User” means any person who enters or uses the Website, downloads and installs the Software or access and use the Services, notwithstanding the fact that such a person only visits the home page of the Website. In addition "User" means any person who engages in any one or all of the Prescribed Actions; and
1.2.2.8 "Website" means the Erotic Mobile website, viz. www.eroticmobile.co.za including all Services available via the Erotic Mobile website, all software available from the Erotic Mobile website and mobisite, viz Erotic Mobile.mobi any discussion forum(s) available on the Erotic Mobile website, and any and all related images, text video, source code, meta tags, forum postings as well as all parts thereof.

2. LICENSE AND SCOPE OF LICENCE

2.1 Erotic Mobile grants to the User a non-exclusive and non-transferable license to engage in the Prescribed Actions, which licence may be revoked at any time at Erotic Mobile’s sole and absolute discretion.
2.2 The licence granted in terms of 2.1 above is subject to the following conditions:
2.2.1 that the User does not engage in the Prescribed Actions:
2.2.1.1 for commercial gain;
2.2.1.2 to conduct any illicit or illegal activity;
2.2.1.3 to send any unsolicited commercial communications;
2.2.1.4 for harmful purposes;
2.2.1.5 to disclose, share or publish material that may be offensive, defamatory, regulated, copyrighted, incorrect, untrue, prohibited, infringing or damaging to any person; and/or
2.2.1.6 to create, store and send unsolicited commercial communications.
2.3 In no event shall Erotic Mobile and/or any of its subsidiaries and/or any of its affiliates and/or any of its agents and/or an of its employees and/or any of its holding companies from time to time be in any way liable to any User or any third party for any adverse results whatsoever, including but not limited to any injury and/or loss and/or expense and/or damages consequential, special, or otherwise of any kind whatsoever suffered or incurred by any person and howsoever occurring, that may occur as a result of any User engaging in any of the Prescribed Actions or any User’s inability to engage in any of the Prescribed Actions.
2.4 Erotic Mobile reserves the right at its sole and absolute discretion to alter, modify, update, suspend or withdraw the Website, Software and/or the Services or any part of any of them at any time, or to alter this Agreement at any time without prior notice or justification.
2.5 No framing of the Website shall be allowed.
2.6 No use or attempt to use any applications so as to search, collect or copy any content from the Website for any purpose whatsoever shall be allowed.
2.7 The User agrees to receive third party advertisements.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 All intellectual property on the Website, including but not limited to content, trademarks (or any confusingly similar trademarks), trade names, logos, pictures, video, downloads, domain names, patents, design elements, software, source code, meta tags, databases, text, graphics, icons and hyperlinks are the property of or licensed to Erotic Mobile and Erotic Mobile and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the User in section 2, all other rights to intellectual property on the Website are expressly reserved. The Website, Software, and Services as well as their entire contents from time to time, and including each and every part of all of them, are proprietary to Erotic Mobile.
3.2 No person shall amend, copy, use, decompile and/or reverse engineer the source code of the Software.
3.3 No person may use logos, icons, or trademarks from the Website as hyperlinks or other purposes without Erotic Mobile’s prior written consent.

4. SOFTWARE AND EQUIPMENT

Subject to the software made available by Erotic Mobile, it is the responsibility of the User to acquire and maintain, at his/her own expense, the necessary hardware, software, communication lines and access accounts required to access Erotic Mobile and/or download content from the portal.

5. DISCLOSURES REQUIRED BY SECTION 43 OF THE ECT ACT

Access to the services, content, software and downloads available from the 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 Erotic Mobile has, amongst others, the duty to disclose the following information:
5.1 FULL NAME AND LEGAL STATUS OF WEBSITE OWNER: Central Bridge Trading 71 CC
5.2 PHYSICAL ADDRESS: Suite 118, Cramerview VillageCentre, 277 Main Road, Bryanston
5.3 POSTAL ADDRESS: PO Box 6340, Roggebaai, 8012
5.4 TELEPHONE NUMBER: +27(21) 425 9680
5.5 WEBSITE ADDRESS: www.eroticmobile.co.za
5.6 EMAIL ADDRESS: mailatxplicit.co.za This e-mail address is being protected from spambots. You need JavaScript enabled to view it
5.7 MEMBERSHIP OF SELF-REGULATORY BODIES: Not applicable
5.8 CODE OF CONDUCT: Not applicable
5.9 REGISTRATION NUMBER:200402731023
5.10 VAT REGISTRATION NUMBER: 4680218650
5.11 PLACE OF REGISTRATION: Republic of South Africa
5.12 PHYSICAL ADDRESS FOR RECEIPT OF LEGAL SERVICE: 6th floor, 4 Loop Street, Cape Town 8001
5.13 GOODS AND SERVICES: Mobile messaging software download; miscellaneous services
5.14 PRICE OF GOODS AND SERVICES: Downloading and installation of Software is free of charge. Any costs levied in respect of Services are detailed on the relevant pages.
5.15 MANNER OF PAYMENT: Services are paid for via OBS (Online Billing Services) which is deducted from the users’ cellular airtime.
5.16 TERMS OF AGREEMENT: The terms of agreement are contained in this document.
5.17 TIME OF DISPATCH OF GOODS/DELIVERY OF SERVICES: Dispatch and delivery to user’s mobile phone is immediate.
5.18 MANNER IN WHICH CONSUMERS MAY ACCESS RECORDS OF TRANSACTIONS: User profile page
5.19 RETURN, EXCHANGE AND REFUND POLICY: No exchanges, returns or refunds are allowed.
5.20 ALTERNATIVE DISPUTE RESOLUTION: All disputes relating to or arising from the Website, Software, Service or this Agreement shall be subject to arbitration. Such arbitration shall be conducted in Cape Town, in English, and in accordance with the relevant legislation as well as the rules of the Arbitration Foundation of South Africa (www.arbitration.co.za). The ruling of the arbitrator shall be final. This clause shall not affect any rights to claim urgent and/or interim relief.
5.21 COMPLAINTS: 0861 111 106
5.22 SECURITY PROCEDURES: Security is achieved via authentication and encryption protocols. Access is also controlled via username (MSISDN) and password.
5.23 PRIVACY POLICY: For the purposes of this clause, "personal information" shall be defined as set out in the Promotion of Access to Information Act, No. 2 of 2000.
Erotic Mobile may electronically collect, store, and/or use the following information pertaining to the User:
a. Cellphone number;
b. South African region;
c. Gender;
d. Age;
e. Language preference;
f. Non-personal browsing habits and click patterns;
g. IP addresses.
Erotic Mobile may collect, store, and/or use the abovementioned information for the following purposes:
i. dispatching information requested by a User to such User;
ii. facilitate the Services;
iii. initiate the Software
iv. validate the identity of the User;
v. enable access by the User to restricted content; and/or
vi. compiling non-personal statistical information about browsing habits click-patterns, and access to the Site.
This information is collected electronically via the use of cookies or directly volunteered by the User. Any User may allow or restrict cookie use through their browser settings.
Erotic Mobile may collect, maintain, save, compile, share, disclose, and/or sell any information collected from any User, subject to the following:
I. it shall not disclose personal information pertaining to any User to any third party unless that User has consented thereto;
II. it shall only disclose personal information pertaining to any User without the consent of that User when compelled to do so by law or court order; and
III. it may compile, use, and/or share any information that does not relate to any specific individual or entity.
Erotic Mobile shall own and retain all rights in and to any non-personal statistical information as set out in this clause that may be collected and compiled by it.
5.25 DURATION OF AGREEMENT: This Agreement shall subsist until cancelled by either of the Parties.
5.26 COOLING OFF RIGHTS: The cooling off provisions detailed in section 44 of the ECT Act do not apply to the purchase of Erotic Mobile Content or the exchange of means with which to purchase Erotic Mobile Content for any of the Services by virtue of sections 42 (2)(d), 42(2)(f)(iii) and 42(2)(g) of the ECT Act.

6. HYPERLINKS TO THIRD PARTY SITES

6.1 From time to time, hyperlinks may exist on the Website to the websites of third parties. The websites of such third parties are not proprietary to Erotic Mobile or, nor does Erotic Mobile or any of its subsidiaries or any of its affiliates or any of its holding companies exercise any measure of control over such third party web sites.
6.2 Accordingly, Erotic Mobile nor any of its subsidiaries nor any of its affiliates nor any of its holding companies makes no representations whatsoever as to the accuracy or any other aspect of the information contained on such third party web sites, nor as to the availability or any other aspect of the services offered on such third party web sites.

7. CHANGES AND AMENDMENTS

Erotic Mobile reserves the right, in its sole and absolute discretion, to do any of the following, at any time without prior notice or justification:
7.1 change these terms and conditions;
7.2 change the content and/or services available;
7.3 discontinue any aspect of the Website or service(s) available; and/or
7.4 change the software and hardware required to access and use the Website and service.

8. SECURITY

8.1 Erotic Mobile shall take all reasonable steps to secure the content of the Website and the information provided by and collected from Users from unauthorised access and/or disclosure. However, Erotic Mobile does not make any warranties or representations that content shall be 100% safe or secure.
8.2 Subject to the provisions of sections 43(5) and 43(6) of the ECT Act, if applicable, Erotic 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 Website.
8.3 Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, robots or spy ware, to the Website or the server and computer network that support the Website.
8.4 Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Erotic Mobile harmless against any and all liabilities, damages, risks and losses that Erotic Mobile and its partners/affiliates may suffer as a result of such delivery, attempt or damaging code.
8.5 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 Website and Erotic 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.
8.6 Users who commit any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liabilities, losses, destruction or damages suffered and/or incurred by Erotic Mobile and its partners/affiliates due to or related to these illegal actions.

9. DISCLAIMER AND LIMITATION OF LIABILITY

9.1 Neither Erotic Mobile, its affiliates, agents, employees nor its holdings companies from time to time shall be liable for any adverse results whatsoever, including but not limited to any injury and/or loss and/or expense and/or damages consequential, special, or otherwise of any kind whatsoever that may be suffered or incurred by any User or a third party, that may result from any cause whatsoever as may be related to the Website, Software or Services resulting from:
9.1.1 access to the Website;
9.1.2 access to and use of the Services;
9.1.3 download, install and use the Software;
9.1.4 access to websites linked to the Website;
9.1.5 inability to access the Website or use the Services;
9.1.6 inability to access websites linked to the Website;
9.1.7 content available on the Website;
9.1.8 content posted to the Website by Users;
9.1.9 services available from the Website;
9.1.10 products available from the Website;
9.1.11 downloads and use of content from the Website; and/or
9.1.12 any other reason not directly related to Erotic Mobile’s gross negligence
9.2 The User acknowledges and affirms that the Website, Software and Services are provided on an "as is" basis, and that Erotic Mobile does not warrant or represent that its Website, Software and/or Services are completely secure.
9.3 The Erotic Mobile website is supplied on an "as is" basis and has not been compiled to meet the User's individual requirements. It is the responsibility of the User to satisfy himself or herself, prior to entering into this agreement with Erotic Mobile, that the content available from and through the Website, Software and Services meets the User's individual requirements and is compatible with the User's hardware and/or software.
9.4 Information, ideas and opinions expressed on the Website should not be regarded as professional advice or the official opinion of Erotic 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 Website.
9.5 Erotic Mobile does not make any warranties or representation that content and services available from the Website shall in all cases be true, correct or free from any errors. Erotic Mobile shall take all reasonable steps to ensure the quality and accuracy of content available from the Website.
9.6 Erotic Mobile does not make any warranties or representations that the Website shall be available at all times. Users acknowledge that the Website may be unavailable due to updates or other causes beyond the reasonable control of Erotic Mobile, including, but not limited to virus infection, unauthorised access (hacking), power failure or other “acts of God.”
9.7 The Software and the Services are provided “as is” and no warranties, implied or express, are given or implied.

10. REMOVAL AND CORRECTION OF CONTENT

Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing, and/or harmful content available from the Website to Erotic Mobile and Erotic Mobile undertakes to correct and/or remove such content or any part thereof if the person reporting such content provided reasonable grounds to prove the alleged nature of the content.

11. INTERCEPTION OF COMMUNICATIONS

Subject to the provisions of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the User does not agree to the Erotic Mobile right to intercept, block, filter, read, delete, disclose and use al communications (including al “data messages” as defined in the ECT Act) send or posted by the User to through the Erotic Mobile platform.

12. GENERAL

12.1 These terms and conditions constitute the entire agreement between Erotic Mobile and the User and shall take precedent over any disclaimers and/or legal notices attached to any communications and/or postings received by Erotic Mobile from the User. Any failure by Erotic Mobile to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision. In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
12.2 The Website, Software and Services are hosted, controlled and/or operated from within the Republic of South Africa and as such the law of the Republic of South Africa shall apply as regarding this agreement as well as any and all matters as arising from the Website, Software and/or Services.
12.3 This document constitutes the sole record of the agreement as between the Parties in relation to its subject matter, and the User acknowledges and affirms that Erotic Mobile shall not be bound by any representation, warranty, promise or the like not recorded herein.
12.4 No indulgence which Erotic Mobile may grant to a User with regard to any of Erotic Mobile’s rights, under this Agreement or in law, shall constitute a waiver of any of Erotic Mobile’s rights, whether under this Agreement or in law, and Erotic Mobile shall not thereby be precluded from exercising any rights against such User.
12.5 Notwithstanding that any provision of this Agreement may prove to be illegal or unenforceable, the remaining provisions of this Agreement shall continue to be of full force and effect.

13. AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT

The User and Erotic Mobile agree that:
13.1 the User shall be bound to these term and conditions and such agreement is concluded in Cape Town (South Africa) at the time the User enters the Website for the first time;
13.2 data messages (as defined in the ECT Act) addressed by the User to Erotic Mobile shall only be deemed to have been received if and when responded to;
13.3 data messages (as defined in the ECT Act) addressed to the User by Erotic Mobile shall be deemed to be received by the User as detailed in section 23(b) of the ECT Act;
13.4 data messages (as defined in the ECT Act) addressed by the User to Erotic Mobile shall be deemed to have been created and sent by the User from within the geographical boundaries of South Africa;
13.5 electronic signatures, encryption and/or authentication is not required for valid electronic communications between the User and the Erotic Mobile; and
13.6 the User agrees and warrants that data messages that are sent to Erotic Mobile from a computer, IP address or mobile device normally used by or owned by the User, was sent and/or authorised by the User personally.

14. APPLICABLE AND GOVERNING LAW

The Erotic Mobile website is hosted, controlled and operated from the Republic of South Africa and therefore, subject to the South African law enforced by the South African courts governs the use or inability to use the Website, its content, services, products and these terms and conditions.

As a WASPA member we are bound by the Rules, Regulations and Code of Conduct set by the Mobile Regulatory Authority, WASPA. Should you have a comment, complaint or query please visit the WASPA website: www.waspa.org.za or to view the Code of Conduct go to http://www.waspa.org.za/code/index.shtml

15. LEGAL COSTS

Erotic Mobile shall not be liable for costs incurred by Users to obtain professional advice relating to these terms and conditions.

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