1.1. Save for a separate service agreement that may be entered into by a Client and Mobiz which may supplement the Terms, these Terms supersede prior agreements or arrangements with you. Mobiz may immediately terminate the Terms or generally cease offering or deny access to the Services if you are in violation of the Terms.
1.2. Mobiz may amend the Terms from time to time. The amended Terms will become effective from the Publication Date and on the date Mobiz publishes the Terms at this location. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended. You agree that notice on www.mobiz.co (“Website”) is adequate notice.
2.1. Mobiz currently sends Outputs from the United States of America (“US”) and the Republic of South Africa (“RSA”), based on its Clients’ needs, and administers the Services from its head office in RSA. The content we publish, including products and services may not be available in your country (yet!) so please contact us if you’re unsure whether we operate in your jurisdiction. We make no representation that the Services is appropriate, functional or available for use in other locations. You may not use the Services or export information and/or materials in violation of the export laws of RSA, the US or any other applicable jurisdiction. If you access the Website or use the Services outside of the US or RSA, you are responsible for compliance with the laws of you and an End User’s jurisdiction.
2.2. Mobiz provides a variety of Services. The Early Access and/or Demo Software Terms found in this clause 2.2 are supplemental to the Terms and are applicable to you when you click ‘I accept’, first access or use the Early Access/Demo Software.
2.2.1. Early Access/Demo Software means a version or feature of the Services that we have not made generally available to the public or to Clients for production use or in instances where we make it available for a specific, limited purpose such as a demo, beta, trial, early access or evaluation use within a particular geographical region.
2.2.2. From time to time, we may invite you to use the Early Access/Demo Software, which you can accept or reject. Your access to Early Access Software is for evaluation and testing purposes, may not be supported and may be subject to additional terms.
2.2.3. Unless otherwise agreed by Mobiz in writing, your access to the Early Access/Demo Software will expire on the date Mobiz, in its sole discretion, (a) notifies the user in writing; or (b) makes a version of the Early Access/Demo Software commercially available; or (c) removes the Early Access/Demo Software from its Services; or (d) discontinues access to the Early Access/Demo Software at any time. Mobiz may never make the Early Access/Demo Software generally available and reserves the right to cancel, suspend, terminate and/or end services for any and all unpaid products or services that are deemed inactive or no longer in use.
2.2.4. The Early Access/Demo Software user’s attention is specifically brought to clause 6, which outlines the user’s responsibilities and warranties in its access to and use of the Early Access Software. The user agrees to abide by all applicable local, state, federal, national and international laws and regulations and is solely responsible for all acts or omissions that occur under the user’s Account, such as the content of messages that the user creates, initiates and may be capable of deployment through the Early Access/Demo Software. Mobiz will have no liability for any damages (including but not limited to consequential, indirect and special damages, including loss of data) arising out of or in connection with a user’s use of the Early Access/Demo Software.
3.1. Subject to your adherence to the Terms (and applicable supplemental terms), Mobiz grants you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services. Nothing contained herein should be construed as granting any license or right to use any intellectual property without the prior written permission of Mobiz.
3.2. In order to use certain features of the Services, you may need to register for and maintain a user account (“Account”). By registering for an Account, you agree to provide true, accurate, current and complete information as requested by Mobiz. You agree to give us prompt notice of any details that have changed from the initial registration of the Account.
3.3. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your username and password at all times. When your Account is used, Mobiz is entitled to assume any action under your Account is done by you. You may not authorize third parties to use the Account.
3.4. In order to register for an Account, you warrant to Mobiz that you are of legal age and possess the legal authority to form a binding agreement and are not a person or entity barred from receiving the Services under the laws of the US, RSA or other applicable jurisdiction.
3.5. Certain of our Services contain supplemental terms and will be disclosed to you in connection with such Services. The supplemental terms are in addition to and shall be deemed incorporated into the Terms for the purposes of the Services.
3.6. You acknowledge, consent and agree that Mobiz may access, preserve, and/or disclose your Account information and Output if required to do so by law or in good faith belief that such access, preservation and/or disclosure is reasonably necessary to: (a) comply with a required legal process (b) enforce the Terms (c) respond to intellectual property or other types of claims from a third-party where an Output may violate the rights of that third party (d) respond to your requests for customer service and/or (e) protect the rights, property or personal safety of Mobiz, its users and the public.
4.1. You are required, by the consumer and data protection laws applicable to you, to adhere to certain laws and regulations when sending Outputs to an End User. These may include and are not limited to obtaining express consent to contact an End User, identifying yourself as the sender of an Output, including the option and instruction for an End User to opt-out from an Output, honoring such opt-outs received from an End User, and avoiding misleading language.
4.2. The Client guarantees to Mobiz that each person to whom a mobile number belongs in the Client’s Account has opted-in to receive an Output from the Client. Mobiz reserves the right to request a guarantee from a Client to confirm such consent and the collection method used to obtain it.
5.1. For the purpose of the Terms, Content refers to the data the Client requests Mobiz to store, process and/or transmit to End Users.
5.2. Message and data rates may apply when using the Services by the Client and may be incurred by an End User as a result of the Client sending an Output to an End User or an End User accessing the Output. It is the Client’s responsibility to notify the End User of such charges in each instance, as it may apply to an End User.
5.3. The Client understands and agrees that while Mobiz hosts the landing page contained within an Output, the Client is responsible for the Content therein. In addition, the Client permits Mobiz to alter and encode the Output into other formats, store it, and transmit it via third parties to mobile devices (and optionally, any other means of viewing the Output that is mutually agreed upon by Mobiz and the Client).
5.4. The Services are not intended for, and Clients cannot send, an Output to persons aged 13 or under, or an Output that relates to sex, hate, alcohol, firearms, tobacco, drugs, payday loans, mortgage loans, student loans, credit repair, tax, tax relief, medication, and/or gambling, amongst other highly regulated industries. Mobiz reserves the right to refuse, suspend, terminate any Output or Account at any time, and without warning that, in its opinion, is related to any type of unacceptable content.
5.5. You understand and agree that Mobiz and its designees retains the right, but not the obligation, in its sole discretion to pre-screen, refuse, or move any Output that is available via the Service to the fullest extent permissible by law.
6.1. By using the Services, you warrant to Mobiz that you:
6.1.2. will comply with all applicable laws and regulations of the country or region in which you reside or use the Services or that may apply to your End User, which may include but is not limited to those applicable to promotions, coupons, data privacy and protection, intellectual property, contests, RSA Mobile Marketing Association (“MMA”), RSA Wireless Application Service Providers’ Association (“WASPA”), RSA Consumer Protection Act (“CPA”), RSA Protection of Personal Information Act (“POPIA”), RSA Electronic Communications and Transactions Act (“ECTA”), US CAN-SPAM Act, US Telephone Consumer Protection Act (“TCPA”) and the US Do-Not-Call Implementation Act, including their regulations, guidelines and as amended from time to time;
6.1.3. will not upload, post, replicate or transmit any content that is, or could reasonably be considered, threatening, spam, a nuisance, defamatory, abusive, racist, sexist, discriminatory, in breach of confidence, in breach of privacy or detract any user in any way from properly using the Services;
6.1.4. will only use the Services for lawful purposes and will not send any illegal contests, unsolicited or unauthorized advertising electronic message;
6.1.5. will not use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of the Services including but not limited to uploading or making available files that contain corrupt data or viruses via whatever means or deface, alter or interfere with the front end ‘look and feel’ of the Services or underlying software code;
6.1.6. will not interfere with, disseminate, copy, alter, adapt, reverse-engineer, modify, duplicate, translate, decompile, create derivatives of or otherwise use the Services for any unauthorized purpose;
6.1.7. will not infringe any third party or Mobiz’s intellectual property or other rights or transmit content that the user does not own or does not have the right to publish or distribute; and
6.1.8. will not facilitate or assist any third party to do any of the above.
6.1. You must notify Mobiz immediately upon becoming aware of or reasonably suspecting any unauthorized access to or use of the Services and/or your Account and to take steps to mitigate any resultant loss or harm.
7.1. If you choose to send Mobiz any feedback, suggestions, or ideas, you grant Mobiz a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform on information (including ideas for new or improved products, features, technologies, content, visuals, strategies, names, computer code and/or services). You also grant Mobiz the right to use your name in connection with your feedback and other information presented to us as well as in connection with Mobiz advertising, marketing and promotional material. This provision specifically excludes Confidential Information, confidential disclosures and confidential correspondence.
8.1. The Services may be made available or accessed in connection with third-party services and content (including advertising) that Mobiz does not own or control.
8.2. In instances where you integrate or enable any third-party application or service (“Third-Party Provider”) with the Services, whether on your own or through an instruction to Mobiz, you grant Mobiz permission to allow the Third-Party Provider access to your data as required for the interoperation of that third-party application with the Services. The Client understands and agrees that:
8.2.1. Mobiz does not endorse a Third-Party Provider’s services and content, and in no event will Mobiz be responsible or liable a user’s loss (including data and consequential loss) due to the integration or the Third-Party Provider’s products and/or services.
8.3. The Services may include links to other internet sites, including that of a Client (“the other sites”). Mobiz does not endorse the other sites and is not responsible for the information, material, offers, products, opinions, or services contained on or accessible through the other sites. Hyperlinks to the other sites do not imply any endorsement, agreement on or support of the content or products of the other sites by Mobiz.
8.4. Any opinions, statements, services, offers or other information or content expressed or made available on the Services and/or Website by any third party are those of the respective authors or distributors and not Mobiz.
9.1. All material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs, copyright and/or service marks (as well as the organization and layout of the Services), together with the underlying software code and everything submitted by you to Mobiz and in use of the Services, (“the intellectual property”) are owned (or co-owned, or licensed, as the case may be) by Mobiz, its members, associates, and/or partners whether directly or indirectly, and as such, are protected from infringement by domestic and international legislation and treaties.
9.2. Subject to the rights afforded to you in these Terms and supplemental terms, all other rights to the Services’ intellectual property are expressly reserved by Mobiz. You may not copy, download, print, modify, alter, publish, broadcast, distribute, sell or transfer any of the intellectual property, editorial content, graphics or other material, whether in whole or in part, without the written consent of Mobiz first being granted, which consent may be refused at the discretion of Mobiz. No modification of the intellectual property or editorial content or graphics is permitted.
9.3. Mobiz reserves the right to make improvements or changes to the Services’ intellectual property, information, artwork, graphics or other materials or to suspend or terminate the Services, at any time without notice; provided that any supplemental terms agreed between Mobiz and the Client will not be affected by such suspension or termination, as the case may be.
9.4. Where any of the Services’ intellectual property has been licensed to Mobiz or belongs to any third party, other than that which has been submitted by a Client to Mobiz in the use of the Services, all rights to use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
10.1. If you believe that content accessible on the Services infringes your copyright, you may request removal of such content by contacting Mobiz and providing the following information:
10.1.1. a description of your copyrighted content and the digital location of the copyrighted content, if possible;
10.1.2. a description of the infringing content and its location;
10.1.3. your contact details to communicate with you;
10.1.4. a statement that explains that you have a good faith belief that the use of the content is not authorized by the copyright owner, its agent or the law;
10.1.5. confirmation that the information you have supplied is accurate and that under the penalty of perjury, you are the copyright owner or are entitled to act on behalf of the copyright owner;
10.1.6. the reasonable remedy you seek; and
10.1.7. a signature or the electronic equivalent from the copyright holder or authorized representative.
10.2. Mobiz reserves the right, in the appropriate circumstances, to suspend or terminate Client accounts who are deemed to have repeatedly uploaded content that infringes the intellectual property of others.
10.3. The Takedown Request can be sent to any of the below locations:
Physical Address: Unit 2H Matrix Building, 8 Bridgeway Boulevard,
Bridgeway Precinct, Century City, Cape Town, 7441, South Africa
Phone: +27 21 510 7911
Email: email@example.comPlease include the subject line: Takedown Request
11.1. You use the Services at your own risk and Mobiz does not guarantee that the Services, or any portion thereof, will function on any particular hardware or device. While Mobiz has a 99% uptime, Mobiz relies on external suppliers to transmit messages to and from mobile devices and has no responsibility for the timeliness, mis-delivery, deletion or failure to store End User communication. The external suppliers include but are not limited to intermediary aggregators between Mobiz and mobile carriers, the mobile carriers, server hosting companies, internet service providers and others (each of which have their own terms).
11.2. The Services may include technical, typographical or photographical errors. The Services, including any intellectual property appearing therein, is provided “as is” and “as available”. Mobiz makes no representations or warranties, whether express or implied, including but not limited to warranties as to the accuracy, correctness or suitability of either the Services or the information contained in it.
11.3. Mobiz, its directors, employees, partners, and affiliates, accept no liability whatsoever for, and you indemnify Mobiz from any costs, expenses, fines, or damages, including but not limited to direct or indirect loss or damages, including economic loss, consequential loss, loss of profits, loss of data, or any form of punitive damages, resulting from the facilitation and offering of the Services and the access to, or use of, the Services in any manner.
11.5. Mobiz will not be liable for any loss that you or a user may incur as a result of an unauthorized user using an Account, either with or without your knowledge. To the extent permissible by law, you shall be liable for any expenses, including usage charges and fines, fees, and costs associated with your failure to safeguard your Account.
12.1. Notwithstanding the foregoing, the sole and entire maximum liability of Mobiz for any reason and the sole and exclusive remedy for any cause or claim whatsoever, shall be limited to the charges paid by you directly to Mobiz for Services in the previous month prior to such cause or claim. Some jurisdictions do not allow the disclaimer of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the disclaimers and limitations may not apply to you.
12.2. Mobiz relies on information supplied to it by its Clients to communicate with the Client’s End User using the Services and Mobiz accordingly bears no liability for any inaccuracies in such information supplied to it, including the account information, contact details or content sent to an End User. Mobiz does not and is not responsible to (a) the End User as a consumer in terms of relevant consumer protection laws (b) acquire consent of any kind for the Client (c) manage any End User opt-out unless expressly provided in the Services (d) provide any copies or access to consumer information, except as provided in the reports; or (e) comply with special consumer protection requirements on instruction from a Client.
12.3. You agree to hold harmless and indemnify Mobiz against any losses, expenses or claims by any third party arising as a result of your use of the Services, including but not limited to claims of breach of intellectual property or privacy, services rendered by Third-Party Providers or any other act or omission by a user.
12.5. This clause will survive termination of this agreement.
13.1. Platform owner: Aerofone Communications Proprietary Limited t/a Mobiz
13.2. Legal Status: Private Company
13.3. Registration Number: 2005/022324/07
13.4. Director: Greg Chen
13.5. Description of main business: SaaS platform that allows for Client Account holders to generate in-text links featuring hyper- personalized landing pages delivered through SMS to Customers
13.6. Telephone Number: +27 21 510 7911 (South Africa)
13.7. Email Address: firstname.lastname@example.org
13.8. Platform Location: mobiz.co
13.9. Physical/Registered Address: Unit 2H Matrix Building, 8 Bridgeway Boulevard,Bridgeway Precinct, Century City, Cape Town, 7441, South Africa
13.10. Postal Address: PO Box 529, Century City, 7446
14.1. Your access and/or use of the Services, any downloaded material from it and the operation of the Terms (including any transaction concluded pursuant thereto) shall be governed by and construed in accordance with the laws of the Republic of South Africa, without regard to its conflict of law provisions.
14.2. Should any dispute arise between the parties concerning the Services, the parties will resolve the dispute amicably, by negotiation, and with the best interests of both parties in mind.
14.3. Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to in their negotiation, the parties will approach an independent industry expert who shall mediate the discussion on their behalf.
14.4. Notwithstanding the above, a user and Mobiz consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa, even in the event where the quantum in the dispute may be less than the monetary jurisdiction of that court. Either party may also use the dispute resolution services of any applicable legislative tribunal or ombud, as provided for in applicable legislation.
14.5. The Parties agree that they shall bring any dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, the parties agree that the disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
14.6. No Class Actions: You understand that by entering into this agreement, you and Mobiz are each waiving the right to a trial by jury or to participate in a class action and each party may only bring claims in your or its personal capacity and not as a plaintiff or class member in any purported class or representative proceeding. If clause 14.5 and/or 14.6 is found to be unenforceable, then those sections will be null and void.
14.7. Notwithstanding the above dispute resolution alternatives, nothing in the Terms will be deemed to waive, preclude, or otherwise limit the right of either party to (a) bring an individual action in the small claims court (b) pursue an enforcement action through the applicable national, federal, state, provincial or local agency if that action is available (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) file suit in a court of law to address an intellectual property infringement claim.
15.1. Mobiz may refuse, suspend and/or terminate any campaign, Output, text program or Account that, at its option (and based on geographical location), is not in compliance with the MMA Guidelines, TCPA Guidelines, CTIA Guidelines, CPA, US National DNC registry rules, Federal Trade Commission and Federal Communication Commission Rules cellular carrier terms or that violates any applicable law or regulation that applies to the Services or places restrictions on certain types of text messages, data protection and consumer rights.
15.2. In addition to the conditions provided for above, Mobiz reserves the right to terminate and cancel your Account if you breach any of the Terms.
15.3. If you wish to terminate the Terms with Mobiz, you may do so by discontinuing the use of the Services and/or following the directions on the supplemental terms, as the case may be.
15.4. The obligations and liabilities of the parties incurred prior to the termination date of the agreement shall survive the termination of this agreement for all purposes, including the payment of any charges due and payable by you in relation to the Services.
15.5. In the event of cancellation of your agreement with the Terms and with Mobiz, Mobiz will de-register your Account and revoke your access to the Services.
Without limiting any other provision in the Terms, Mobiz is not responsible or liable to a user, including a Client, for delay or failure to perform its obligations hereunder in the event that any of Mobiz’s operations or activities are affected by any cause or event beyond the sole and reasonable control of Mobiz, including, without limitation, by an act of god, earthquake, fire, explosion, terrorist act (threatened or actual), civil disturbance, epidemic, pandemic, unusually severe weather, flood, electrical outages, network failures, equipment failure, telecommunication line failure, embargo, labour dispute, any law, regulation, order or request adopted, taken or made by any government or similar entity, or any other cause whether or not specifically mentioned above. Any failure on the part of any outside party that results in a message delay or failure falls under this Force Majeure clause.
17.1. No Variation Save for clause 1.2 above, no variation, cancellation or addition to the Terms will be of any force or effect unless reduced to writing and signed by the user and Mobiz’s duly authorized representative.
17.2. Notices Any notice or other communication shall be given in writing to the other party at the address set forth above or in an Account, or at such other address given by either party to the other in writing. Such notice shall be deemed to have been given when a) delivered by hand during business hours b) within 10 (ten) days after posing if sent by prepaid registered post c) on the first business day after dispatch if sent via email (unless the contrary is proven).
17.3. Service Provider Status Mobiz is a service provider to you and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party, that it has any authority to act on behalf of the other.
17.4. Indulgences No indulgence, leniency or extension of time granted by Mobiz shall constitute a waiver of any of Mobiz’s rights under the Terms and, accordingly, Mobiz shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against the user which may have arisen in the past or which may arise in the future.
17.5. Marketing The Client agrees that Mobiz may refer to the Client by name and trademark in Mobiz’s marketing materials and website. The Client acknowledges and agrees that Mobiz does not certify or endorse, and has no obligation to certify or endorse, any of the Client’s products, services or content.
17.7. Interpretation The headings to the paragraphs to the Terms are inserted for reference purposes only and do not affect the interpretation of any of the provisions to which they relate.
17.8. Severability Each term, clause, sentence, paragraph and provision of the Terms and any portion thereof shall be considered severable and if for any reason any such term, clause, sentence, paragraph or provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation where the Services is used, or in terms of a final, binding judgement issued by any court, it shall to that extent be deemed to not form part hereof and shall not impair the operation of, or have any effect upon such other sentence, paragraph, term, clause or provision hereof as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto.
17.9. Invalidity Any provision of the Terms which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
17.10. Queries and Complaints If you have any queries or complaints, please send us an email at email@example.com.