These are the Terms for the Service. Before you use the service, you must read the Terms carefully. By using the service, you agree to these Terms. If you don't agree then you must not use the service. If you do not understand these terms and conditions, you may call in to our Customer Care Centre on 0115074630 for a simple explanation. General Terms and Conditions. High Gable LTD. „High Gable LTD is a member of WASPA and is bound by the WASPA Code of Conduct. Customers have the right to approach WASPA to lodge a complaint in accordance with the WASPA complaints procedure. High Gable LTD may be required to share information relating to a service or a customer with WASPA for the purpose of resolving a complaint. WASPA web site: www.waspa.org.za”.
1.1. "Acceptance Date" means the date on which you accepted the Agreement, be that in writing or by way of electronic medium, for example by clicking "I agree" on a web page or via your mobile phone, or telephonic acceptance;
1.2. "Activation Date" means the date on which we will give you access to and/or enable you to use the Service;
1.3. "Agreement" means the agreement concluded between you and us for the Service;
1.4. "Business Day" means Monday to Friday, but excludes Saturdays and a day which is an official public holiday in the Republic of South Africa;
1.5. "Business Hours" means the hours between 08h30 and 17h00 on a Business Day;
1.6. "Credits" are the units of currency after rand value has been converted after purchase;
1.7. "CPA" means the Consumer Protection Act, 2008;
1.8. "ECT Act" means the Electronic Communications and Transactions Act, 2002;
1.9. "Intellectual Property Rights" means the copyright in any work in terms of the
Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the a foregoing and any names, licenses, know how, trade secrets and data associated with the a foregoing; 1.10. "MSISDN" means the consumer's mobile number;
1.11. "Juristic Person" means a company or close corporation and includes a body corporate, partnership, association or trust;
1.12. "Network Coverage" means the geographical area within which the service can be accessed and used by you, as determined at the time coverage was established;
1.13. "Network Operator" means a company that owns an electronic communications network, and which makes such network and the electronic communications services conveyed over such network available to other industry players for commercial purposes such as Vodacom, MTN, Telkom Mobile and Cell C and any other properly licensed service provider.
1.14. "PIN" means the Personal Identity Number allocated to a user of the Service;
1.15. "Service" means the Bundleup service made up of downloadable cellular entertainment content, such as ringtones, games, graphics, cellular data through our website, SMS (Short Message Service) services to certain compatible cellular devices; 1.16. "SMS" means short message service;
1.17. "Service Fees" means the fees payable for a Subscription Contract;
1.18. "Subscription Contract" means a contract for a subscription period of one day until cancelation
1.19. "Terms" means this Agreement and the Privacy Policy;
1.20. "Uncontrollable Event" means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond our reasonable control including the termination or suspension of a service or product provided by a Network Operator, that may result in a delay or a failure to provide any product or service;
1.21. "WAP Push Link" a link guiding a user to a WAP Site;
1.22. "WASP" means a Wireless Application Service Provider;
1.23. "WASPA" means the Wireless Application Service Provider's Association of South Africa;
1.24. "We", "Our" or "Us" means Victorious Technologies Pty (LTD);
1.25. "VAT" means Value Added Tax as provided for in the Value Added Tax Act, 1991.
2.2.1. The Agreement will commence on the Acceptance Date and endure indefinitely until it is cancelled as provided for in this clause 2.
2.2. The Agreement may be terminated by either us or you on one calendar months' notice, which termination will take effect on the first day of the month immediately following the end of the applicable notice period.
2.3. Even if the Agreement has been terminated, in the event that you continue to use the Services despite the termination of the Agreement, you will remain liable for and promptly pay on demand all amounts that would have been due to us as a result of the use of or access to the Service and this Agreement shall be deemed to continue to apply until all amounts due to us have been paid in full.
2.4. To unsubscribe dial *135*997# or call CC 0115074630. The Service is available via mobile devices, making available to you to get top pictures, videos, other type of the content and latest news we uploaded to your account. This is a subscription service. You will receive your photos and videos at R7/day until you unsubscribe. All prices include VAT. By subscribing you may receive marketing messages periodically. Phone must be WAP & GPRS enabled (Network and WAP rates apply). Service available to subscribers of all mobile networks. For WASPA Code of Conduct visit www.waspa.org.za.
2.5. The termination of your subscription will become effective as soon as possible upon receipt of termination request.
2.6. Charges may still appear on your cellular phone bill the following month as your Network Operator bill retrospectively.
2.7. You agree that upon termination of your access to the Service under any provision of these Terms, we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service.
2.8. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or subscription for any reason, we will not refund any of your fees paid to date, except as provided clause 2 of these Terms.
2.9. If the Agreement results from any direct approach to you by us you can cancel the Agreement on written notice to us without reason or penalty within 5 (five) Business Days of
2.9.1. in the case of services only being provided in terms of the Agreement - the Acceptance Date; and
2.9.2. in the case where goods are provided and constitute the subject of the Agreement, whether in conjunction with services or on its own - the date of delivery of such goods.
2.9.3. For purposes of clause 3.4.2, goods include any literature, music, photograph, motion picture, game, information, data software, code or other intangible product or any license to use such intangible product.
3.1. You must be 18 years of age or older to use the Service and you must have the bill payers permission. If you are a parent or guardian and want to restrict access to the Services please contact your cellular Network Operator.
3.2. Your parent or guardian and the bill payer must read and accept these Terms and Privacy Policy before you use the Service.
3.3. You are solely responsible for all payments in respect of the Service charged to your account, irrespective of whether the Service has been utilized or is being utilized by you or not and accordingly the entire amount outstanding on your account will be deemed to have arisen from (or relate to) your access to and/or use of the Service. Data fees may apply. Billings errors are charged.
3.4. You agree to cause all persons who use the Services under your account or with your authorization to comply with the Agreement. All acts or omissions of all persons who use services under your account or with your authorization will be treated for all purposes as your acts or omissions.
3.5. You must also have a cellular communications subscription with a Network Operator or otherwise have access to a cellular communications network. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a cellular handset or other device that is suitable for use in connection with the Service.
3.6. The use of the Service for any commercial purpose is strictly prohibited.
3.7. Our Services comply with the Consumer Protection Act No. 68 of 2008 and are open to all South African residents, subject to the restrictions indicated in these Terms.
4.1. We will make the service available to you on the first Subscription Date.
4.2. We will, where relevant, issue a user name and password to you prior to the Subscription Date in order to enable you to gain access to and/or use the Service. In such instance, you will not be able to access and/or use the Service without a user name and password.
4.3. You agree that:
4.3.1. you will use your user name and password for your own personal use only; 4.3.2. you will not disclose your user name and password to any other person for any reason whatsoever and that you will maintain the confidentiality thereof; 4.3.3. in the event that your password is compromised, you will immediately notify us and change your password;
4.3.4. You will not, at any time, permit and/or initiate a simultaneous log-in; and
4.3.5. you will not attempt to circumvent our user authentication processes or engage in attempts to access our network where not expressly authorized to do so.
4.4. Access to the Service can be provided by delivering to you downloadable cellular entertainment content of the content category you subscribed to or by enabling you to download the product (e.g. by delivering a WAP-Push link or by providing access to the cellular entertainment content (e.g. by enabling MSISDN for this product).
5.1. In exchange for your use of the this service you agree to: 5.1.1. provide true, accurate and complete information about yourself as prompted by the registration form ("Registration Data"); and
5.1.2. maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times.
5.2. If we have reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). 5.3. Prior to any such withdrawal we will temporarily withdraw the Service and notify you of the grounds on which the Service has been withdrawn. If the position has not been rectified within 14 (fourteen) Business Days of the notice such withdrawal will be made permanent.
6.1. You acknowledge and agree that the content made available for download as part of the Service is owned by us, our affiliates or content providers, and are protected by intellectual property laws. We grant, and you hereby accept, a limited, non-exclusive, non-transferable, revocable license to download and use the content and the Service on a designated compatible cellular device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the content downloaded except as expressly provided in this Agreement.
6.2. You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any content, data, files and/or information accessed, retrieved or stored by you through your use of any of our the Services.
6.3. We will wholly and exclusively retain all existing Intellectual Property Rights and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to software used by us, our network infrastructure, e-commerce network infrastructure, business and the provision of the Services.
6.4. This service must not be used to intentionally engage in illegal conduct. We will not knowingly create, store or disseminate any illegal content, infringe copyright or infringe any intellectual property rights. Service must not be used to send spam or promote sending of spam. High Gable has the right to suspend or terminate the services of any customer who does not comply with these terms and conditions or any other related contractual obligations. High Gable has the right to take down any content that considers illegal or for which has recieved take down notice.
7.1. We will use reasonable endeavors to make its services available to you, and to maintain the availability thereof for use by you. However, we provide the services "as is" and "as available" and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.
7.2. We will use our best endeavors to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.
7.3. We reserve the right to modify or discontinue, temporarily or permanently, individual services provided by it or third parties via the Services, or the Services themselves. If a service is or the Services are to be permanently discontinued by us we will try to notify you of this fact and reimburse any pre-paid fees.
8.1. The Service may also include access to products and services of independent third parties either directly or via links to sites operated by such third parties. Where reasonably possible, we will indicate the products and services as third party content.
8.2. Even though they may be co-branded with our marks, the contracts for products and services provided by third parties are concluded directly between you and the third party. We will not be a party to, or in any way responsible for, any transaction concerning any products or services made available from such third parties or for any content or information presented in connection with any products or services of any third party.
9.1. We will be entitled to take whatever action we may deem necessary and reasonable to preserve the security and reliability of our network.
9.2. You may not utilize any service in any manner which may compromise the security of our network, or any other network connected to our network, or tamper with a service or such a network in any manner whatsoever.
9.3. We take reasonable steps to secure your payment information.
9.4. We will deal with your personal information in accordance with the provisions of our Privacy Policy which is available on our website and in compliance with all relevant laws.
9.5. High Gable LTD will retain personal data for a maximum period of 24 months (2 years) from the date of collection, after which it will be securely deleted. By accepting these Terms and Conditions, the user consents to such processing.
10.1. Save to the extent otherwise provided for in this Agreement or where you are entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, we do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality or security of any product or service.
10.2. the loss of or access to any usernames and passwords which you are required to safeguard and not allow unauthorized access on the understanding that we will be entitled to assume that you are the person so using or gaining access to any service or account where your username and password is used;
10.2.1. any unavailability of, or interruption in the service due to an Uncontrolled Event;
10.2.2. any damage, loss, cost or claim which you may suffer or incur arising from any suspension or termination of the service/s for any reason contemplated in the Agreement.
10.3. In addition to and without prejudice to any other limitations of liability provided for in the Agreement and to the fullest extent permitted by applicable law, we shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that we are liable to you for any damages, our liability to you for any damages howsoever arising shall be limited to the amounts paid by you under this Agreement in consideration for a Service during the immediately preceding subscription Period for the Subscription Contract in respect of which the liability arose.
11.1 You hereby unconditionally and irrevocably indemnify us and agree to indemnify and hold us harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by us as a result of any claim instituted against us by a third party (other than you) as a result of (without limitation):
11.1.1. your use of our Service other than as allowed or prescribed in the Agreement;
11.1.2. any other cause whatsoever relating to the Agreement or the Service to you where you have acted wrongfully or failed to act when you had a duty to so act.
The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No variation or addition of this Agreement or the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties.
12.3. Assignment. You may not assign or transfer in any other way the contract or any of your contractual rights. We shall have the right to assign our rights and obligations under this contract and any receivables based on this contract 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. After a notice concerning the transfer of receivables, payments shall be valid only when made to the new service provider.
12.4. Severability. If any part of this Agreement is 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.
We will be excused any failure to perform or delay in performance of any or all of our obligations hereunder as a result of an event of force majeure, including without limitation acts of God (including flood, fire, earthquake or other similar events), riots, war, strikes, lock-outs or other industrial disputes, epidemics, failure of telecommunications systems, failure of the world wide web, any outages of the internet or the mobile cellular or fixed telecommunications networks or connection thereto, governmental restraints and act(s) of legislature or any other cause outside our reasonable control.