Flash Media Group (Pty) Ltd Terms and Conditions of use.

1. FMG / TMS Disclaimer and Exclusions of Warranties.

The Flash Media Group (Pty) Ltd hereafter FMG offers the Total Messaging Service mobile application (TMS) hereafter THE SERVICE, software, accompanying information, materials, and documents provided (hereafter collectively "materials") are provided "as is" without warranty of any kind, either expressed or implied, including without limitation warranties of merchantability, fitness for particular purpose, and non-infringement.

Any information, advice is provided by FMG or external links are viewed, relied upon, and used at the CLIENT’S own risk.

FMG, its officers, directors, affiliates, shareholders, agents, licensors and employees will periodically add, change, delete, improve, or update materials without any prior notice.

FMG, its licensors and affiliates do not warrant that the information will meet your requirements or that the operation of THE SERVICE will be uninterrupted or error free.

Use of THE SERVICE is at each CLIENT’S sole risk. Under no circumstances, including without limitation, negligence, shall FMG, its officers, directors, affiliates, shareholders, licensors, agents, employees, information providers or content providers be liable for any actual, direct, indirect, incidental, special, punitive or consequential damages or loss, even if Flash Media Group (Pty) Ltd. has been advised of the possibility of such damages.

2. Indemnification.

Under no circumstances shall FMG, its officers, directors, affiliates, shareholders, agents, licensors and employees be liable for any losses, damages, liabilities, penalties, claims, demands, suits or actions, or any related costs and expenses of any kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, which are claimed to arise from use of THE SERVICE, software, including without limitation, any fault, error, omission, interruption or delay with respect thereto. FMG is not responsible for any IPR infringement what so ever.

3. WASPA.

FMG confirms that it is a member of the Wireless Application Service Providers Association (WASPA) and undertakes to adhere to any legislation policies and/or codes of conduct that may be applicable. CLIENTS are strictly to adhere to the WASPA code of conduct. The WASPA code of conduct and advertising guidelines can be viewed at www.waspa.org.za. FMG shall not be held liable by the CLIENT if any of the CLIENT’S services are deemed to contravene WASPA code of conduct and the service is blocked. FMG will stand by any judgment handed down by WASPA in terms of services owned by CLIENTS of FMG and will discontinue such service provided to the CLIENT. This does not exempt the CLIENT from financial obligations in terms of this agreement and does not void or terminate this agreement or any clause in this agreement. 

Any penalties or fines imposed by WASPA in terms of services owned, or run by, or on behalf of the CLIENT shall be the liability of the CLIENT and payable by the CLIENT. FMG reserves the right to withhold payment of revenue share to the CLIENT until such penalties or fines are settled by the CLIENT in full.

FMG owns the relationship with the Mobile and Fixed network operators in the territory and will manage and maintain all, communication, negotiations and contractual relationship and agreements with the network operators and service providers and its agents, representatives, suppliers or subcontractors in the territory. All mobile telephone applications included in this agreement shall be subject to such agreement. FMG however does not hold itself out as the legal agent, representative or employee of any network operator or service provider and provides no guarantee or warranty on behalf of any network operator or service provider. In the event of non-availability of any of the Mobile or Fixed Telephone Networks or Internet Service Provider infrastructure, or if any agreement is suspended, cancelled, varied or terminated rendering FMG unable to provide the services and facilities in terms of this Agreement, FMG shall be entitled in its sole discretion to suspend, cancel, vary or terminate this agreement or any part thereof without FMG incurring any liability whatsoever in the event of non-availability of the service.

5. Lawful use of Service & Adult Content.

The CLIENT will not use THE SERVICE or knowingly allow others to use THE SERVICE for any illegal or unlawful purpose or activity. These include, but are not limited to the transmission of content which:

• carries any defamatory, discriminatory or obscene material;
• carries child pornography;
• carries religious or racial slurs;
• is used in connection with any infringement of another persons intellectual property rights (for example copyright and trademark);
• engages in the transmission of pirated material;
• threatens or encourages bodily harm;
• destroys tangible or intangible property;
• uses the network to harass another subscriber or visitor; and
• uses the network to collect or attempt to collect personal information about third parties without their knowledge or consent.
• Information that is in breach of confidentiality
• is illegal or immoral in any way.

The CLIENT will not use THE SERVICE for the transmission of unsolicited commercial messages (spam).

6. Continuation of Service.

In the event that the service/application supplied by the CLIENT to a THIRD PARTY is discontinued/dissatisfactory or fraudulent or if monthly THE SERVICE hosting is not paid to FMG by the CLIENT, FMG has the right to resume the service or develop a similar service with or without consent from the CLIENT and offer this service/application to same THIRD PARTY.           

FMG reserves the sole right to allocate keywords for SMS competitions. All keywords must be applied for by the CLIENT and approved by FMG. Notwithstanding approval that has been granted, FMG can de-allocate a keyword for any reason whatsoever. All tariffs and closing dates must ALWAYS be included on any advertising material for a competition. The advertising guidelines set out by WASPA (www.waspa.org.za) must be strictly adhered to by the CLIENT.

8. Security and account protection.

FMG will allocate the CLIENT with a password to access and update services. This password must be kept secure at all times. The CLIENT acknowledges that any unauthorized access obtained with the CLIENT’S password to THE SERVICE is the CLIENT’S own responsibility and the CLIENT is liable for any activities conducted or costs incurred.

9. Intellectual property.

Nothing, in this agreement shall give the CLIENT any rights in respect of FMG’S or its affiliates intellectual property and the CLIENT hereby acknowledges that it shall not require any rights in respect thereof and that all such intellectual property is and shall remain vested in the company or its affiliates. The CLIENT shall be provided with proprietary technical information or documentation or software that must be returned to FMG on termination of this agreement. 

10. Revenue share.

FMG shall, within 30 (thirty) days from each month-end, and subject to release of billing information by the network providers, submit to the SERVICE Customer a statement in respect of the traffic, which shall detail the number and duration of calls/hits/subscriptions generated, the revenue derived, and such other details as stipulated by the CLIENT, to enable the CLIENT, and/or third parties specified by the CLIENT, to issue an invoice to FMG in respect of the REVENUE SHARE.

11.Conflicting Services.

FMG offers SERVICE to many different parties and FMG is not responsible and shall not be held accountable in any way for services or applications that, in the CLIENT’S opinion, form a conflict of interest with services or applications provided by the CLIENT.  FMG does however undertake to keep all information relevant to a CLIENT’S service confidential.

12. Contract period.

The contract period denotes the initial contractual term entered into between the parties during which the FMG shall provide the services to the customer as provided for in this agreement. This contract commences on the date of signature by both parties and unless agreed to the contrary shall remain valid for an initial period of 12 months. The contract period shall automatically renew after 12 (twelve) months for a further 12 (twelve) months unless written notice is given within 30 days of the next renewal (anniversary) date.

• Notwithstanding any other provision of this Agreement, if the CLIENT is in breach of any of the terms and conditions contained in this Agreement, the FMG may, without prejudice to any of its other rights and remedies and without notice, terminate the supply of the Service to the CLIENT.  In the event that the CLIENT continues to breach this Agreement after the supply of the Services has been terminated, the FMG may, without prejudice to any of its other rights and remedies and without notice, terminate this Agreement. The CLIENT shall, on termination of this Agreement in terms of this clause, be liable to pay the FMG all Fees outstanding on the date of termination, together with those Fees which would have been payable by the CLIENT during the termination notice period, if the CLIENT had terminated this Agreement in terms of clause 12.

• The CLIENT may terminate this Agreement forthwith if the FMG commits any material breach of this Agreement which, in the case of a breach capable of being remedied, has not been remedied within 14 days of a written request to remedy same.

14. Alteration to Terms and Conditions.

FMG reserves the right to alter its privacy policy any terms and conditions regulating the relationship between the CLIENT and FMG at any time.

The CLIENT acknowledges that by using the services from time to time, that the CLIENT shall become bound to the current version of the relevant terms and conditions (the “current version”) and, unless stated in the current version, all previous versions shall be superseded by the current version.

The CLIENT shall be responsible for reviewing the then current version each time it makes use of the service.

Without derogating from the aforegoing, and without imposing any obligation on FMG whatsoever, FMG reserves the right to give the CLIENT notification of amendments of the relevant terms and conditions and its privacy policy either by mail or by posting a notice on this legal section of the website (www.flashmedia.co.za).  On notification of the existence of the amended terms and conditions and/or privacy policy, you shall be obliged to visit the legal section of the website and view the then current version.