Last Updated: 08 September 2010
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE AND REGISTERING AS A NETWORK PUBLISHER, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEB SITE.
These terms and conditions of use ("Network Publisher Site Terms") apply to your registration on the Site as, and your use of the Site in the capacity of, a publisher, creator and/or administrator of a social network hosted within and made available on the Site (“Network Publisher”). These Network Publisher Site Terms include and supplement the general Site Terms, which are incorporated herein by this reference. (In the case of any conflict between these Network Publisher Site Terms and the general Site Terms, these terms will prevail.) By using this Site and registering as a Network Publisher, you represent and warrant that you are over the age of 18 and are lawfully able to accept these Network Publisher Site Terms. If you are registering as a Network Publisher on behalf of any entity, you further represent and warrant that you are authorised to accept these Network Publisher Site Terms on such entity's behalf, and that such entity agrees to indemnify Motribe for violations of these Network Publisher Site Terms.
1. 1. Registration and Membership
2. 1.2 Motribe reserves the right to suspend or cancel your account at any time or to refuse account applications for any reason that it, in its sole and absolute discretion, deems appropriate, including, without limitation: (i) providing false, inaccurate, outdated, incomplete or inappropriate Registration Information or Social Network Content, (ii) defaulting on the payment of any Fees, (iii) it coming to the attention of Motribe that you are a minor or are otherwise not permitted or authorised to use the Site or to register as a Network Publisher, (iv) any attempt to defraud Motribe or other users or accountholders or to make untrue, defamatory or malicious comments about Motribe or other users or accountholders, and (v) any violation of these Network Publisher Site Terms or any applicable laws or regulations.
3. 1.3 You are required to inform Motribe immediately of any change to your Registration Information by updating it on the Site or by informing Motribe by e-mail if this fails. You indemnify and hold harmless Motribe, its subsidiaries, affiliates, licensors, employees and agents against any loss or damage that may arise from the reliance by Motribe, an End User, another Network Publisher or any other third party on your Registration Information and/or Social Network Content.
1. 2. Social Networks
2. 2.1 One of the services which Motribe makes available through the Site is the publication of social networks in a format suitable for mobile devices (“Social Networks”) for users registered as members of your (and/or any other) Social Network (“End Users”). As a Network Publisher, you have the ability to publish a Social Network by completing the relevant forms, providing the required information and uploading the necessary content and supporting resources (including any look-and-feel and branding elements and any metadata, keywords or other taxonomical elements) (“Social Network Content”).
3. 2.2 For the avoidance of doubt, all provisions contained in the general Site Terms which apply to Interactive Areas and to User Content apply to your Social Network and to your Social Network Content. Without limiting the generality of the foregoing, you may not—
1. 2.2.1 name your Social Network in a manner that misleads End Users into thinking that you are another person or company (for example, your Social Network’s URL or name is the name of a person other than yourself or of a company other than your own);
2. 2.2.2 publish Social Network Content which is inappropriate or obscene or which is misleading or unlawful, including in a manner intended to trade on the name or reputation of others; or
3. 2.2.3 advertise your Social Network via unsolicited electronic messages such as spam links on newsgroups, bulk e-mail lists, blogs and Web sites, or similar unsolicited promotional methods,
and Motribe may change or remove any Social Network Content that it considers inappropriate or unlawful, or is otherwise likely to expose Motribe to any liability.
1. 2.3 You are required at all times in operating your Social Network, and in conducting any dealings you have with any End Users, strictly to abide by these Network Publisher Site Terms. Failure to do so may result in suspension or termination of your Social Network and/or your Network Publisher account by Motribe in its sole discretion, in addition to any liability which you may incur directly towards such End Users for a breach of any of the undertakings required in terms of clause 5 below.
2. 2.4 You must immediately notify Motribe of any unauthorised use of your Social Network, your account or any other breaches of security of which you become aware.
1. 3. Fees
2. 3.1 In return for the services Motribe offers you through the Site as a Network Publisher, certain fees are payable from time to time, such as the subscription fee for hosting your Social Network (“Fees”).
3. 3.2 Fees will be charged in advance on the day you sign up for a paid service and cover the use of that service for the period indicated. Fees paid in advance for services are not refundable.
4. 3.3 You undertake to pay any and all such Fees at the prevailing rates prescribed by Motribe timeously and in full, without set-off or deduction for any reason whatsoever. Furthermore, you agree not to take any steps to circumvent your liability for payment of any such Fees.
5. 3.4 Our data servers for billing data are encrypted and PCI compliant and transmissions are encrypted.
1. 4. Warranties and Undertakings
2. 4.1 You undertake to conduct all dealings with Motribe, End Users and other Network Publishers with the utmost good faith and in accordance with all applicable laws.
3. 4.2 You represent and warrant that all information you supply to the Site (including, without limitation, your Registration Information and Social Network Content) is truthful, accurate and up to date and you undertake to update your Registration Information and Social Network Content if at any time they become misleading, inaccurate, outdated, inappropriate or unlawful.
1. 5. Relationship with End Users
2. 5.1 Notwithstanding the fact that Motribe merely facilitates the hosting of Social Networks and makes them available to End Users and does not act as the agent of any Network Publisher or End User, by accepting any End User’s membership on your Social Network, you expressly agree and undertake in favour of the relevant End User as follows:
1. 5.1.1 You agree to treat all information disclosed to you by the End User (other than information which is publicly disclosed on your Social Network or the Site or is otherwise in the public domain through no breach of an obligation of confidentiality to the End User) as strictly confidential and proprietary to such End User (“Confidential Information”). You undertake to deal with all such Confidential Information with the same standard of care which you employ to protect your own confidential and proprietary information and, in any event, with no less than a reasonable standard of care, which includes, without limitation, not disclosing Confidential Information to any third party (other than your attorneys and professional advisors) without the express prior written consent of the End User;
2. 5.1.2 You warrant to the End User that your Registration Information and Social Network Content and all other information and data you may disclose on your Social Network or in your communications and dealings with the End User are, to the best of your knowledge and belief, materially correct, accurate, current and complete and you undertake timeously to inform the End User in the event that any such information changes; and
3. 5.1.3 You acknowledge that any material changes you make to any Social Network subsequent to its initial publication on the Site will clearly be highlighted to End Users.
3. 5.2 Failure to comply with any of the above undertakings and warranties may not only give rise to liability to the aggrieved End User, but constitutes a material breach of these Network Publisher Site Terms, in which event Motribe may forthwith suspend or terminate your Social Network and/or your account without notice or liability to you. You hereby expressly indemnify and hold Motribe harmless against any loss or damage arising from such breach on your part.
4. 5.3 Breach by an End User of any of the general Site Terms in respect of your Social Network entitles you to the usual contractual and legal remedies against such End User directly, and you expressly indemnify and hold Motribe harmless against any loss or damage arising from such breach.
1. 6. Indemnification
2. 6.1 You agree to defend, indemnify and hold harmless Motribe, its subsidiaries, affiliates, licensors, employees, agents, sponsors, third-party information providers and independent contractors against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, attorneys' fees on an attorney-and-own-client scale) arising out of or related to your registration or use of the Site as a Network Publisher (including, without limitation, any information you disclose in any Social Network or any other dealings you have with any End User), your breach or alleged breach of the Network Publisher Site Terms or of any representation or warranty contained herein, or your violation of any rights of another.
1. 7. Disclaimer
2. 7.1 THIS SITE IS PROVIDED "AS IS" AND MOTRIBE AND ITS DIRECTORS, MEMBERS, EMPLOYEES, CONTENT PROVIDERS, AGENTS AND AFFILIATES EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. MOTRIBE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE SOCIAL NETWORKS FEATURE, OR THE UNAVAILABILITY OF THE SAME, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL AND CONSEQUENTIAL DAMAGES.
1. 8. Statutory Rights and Disclosures
2. 8.1 You may have additional rights under your local laws that these Network Publisher Site Terms cannot change. In such event, these Network Publisher Site Terms are to be interpreted in such a way so as not to negate those rights.
3. 8.2 By law, Motribe is required to disclose the following information to you as a consumer:
1. 8.2.1 Motribe Mobile Networks (Proprietary) Limited is a private company with limited liability registered in terms of the laws of the Republic of South Africa with company registration number 2010/011151/07. Motribe’s directors are Vincent Maher, Nicholas Haralambous;
2. 8.2.2 Motribe’s physical address is 6th Floor, BDO House, 119 Hertzog Boulevard, Foreshore, Cape Town, 8001, South Africa, at which address Motribe will receive legal service of documents;
3. 8.2.3 You may contact Motribe through this Web site (http://www.motribe.com/contact) or via e-mail at [email protected];
4. 8.2.4 In terms of section 44(1) of the Electronic Communications and Transactions Act (No. 25 of 2002), you are entitled to cancel without reason and without penalty any transaction for the supply of services within seven days from the date on which you sign up for such services, in which event we will refund you in full within 30 days of cancellation.
1. 9. Changes to Network Publisher Site Terms
2. 9.1 Motribe reserves the right to change any of the terms and conditions contained in the Network Publisher Site Terms at any time and in its sole discretion. When Motribe makes changes, Motribe will revise the "Last Updated" date at the top of the Network Publisher Site Terms. Any changes will be effective immediately upon posting on the Site. Logging into your Network Publisher account following the posting of changes will constitute your acceptance of such changes. Motribe encourage you to review the Network Publisher Site Terms whenever you visit this Web site.
1. 10. Questions and Contact Information
2. 10.1 Questions or comments about the Site or Network Publisher Site Terms may be directed to Motribe at [email protected]