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Terms and Conditions for Smobi

1. Detailed description of goods and/or services

Virtual Mobile Technologies (Pty) Ltd, registration number 2007/015790/07 (“VMT”) is a mobile solutions company and has developed “Smobi”, a mobile application, which acts as a mobile interface to Customer Relationship Management (“CRM”) Software developed by Salesforce.com, which develops and hosts on-demand CRM services.

2. Terms of Use

2.1 "VMT", "we", "our" and "us" means Virtual Mobile Technologies (Proprietary) Limited, registration number, 2007/015790/07, registered in the Republic of South Africa;

2.2 "VMT Application " means the application developed and made available by VMT for downloading onto your mobile phone in order for you to register as a user and enabling you to access the Salesforce.com Services via your mobile phone;

2.3 "Salesforce.com Services" means the CRM services made available by Salesforce.com, by which you are able to manage and handle your contact with your customers and purchase CRM Services from Salesforce.com;

2.4 "VMT Website" the website at www.virtualmobiletech.com

2.5 "use" means to use and the download the VMT Application, thereby enabling you to use, refer to or view the Salesforce.com Services;

2.6 "user" means a user registered with VMT to use the VMT Application;

2.7 "you" and "your" means any person who registers to use the VMT Application;

2.8 Unless the context requires otherwise or it is expressly stated to the contrary, any words and phrases not defined in these Terms of Use but defined in the Electronic Communications and Transactions Act 25 of 2002 ("the ECT Act") will bear the same meaning given to them in the ECT Act.

2.9 The Terms of Use and any additional document we incorporate by reference shall apply to you when you use the VMT Application.

 

3. Your agreement to comply with these Terms of Use

3.1 You agree that:

3.1.1 selecting "I Agree" and registering for the VMT Application signifies your agreement to comply with all of the terms and conditions of these Terms of Use; and

3.1.2 we may, at any time, amend or introduce additional terms and conditions relating to the VMT Application, any other service, content, products, facilities or functionality which is made available by us by way of the VMT Application. You will be notified of such amendments or additional terms and conditions in the manner provided for in these Terms of Use.

3.2 If you do not agree to these Terms of Use you must not continue to register for the Salesforce.com Services by making use of the VMT Application.

3.3 These Terms of Use are available on your mobile phone using your mobile phone browser at www.virtualmobiletech.com on the VMT Website and you may print a copy of these Terms of Use from the VMT Website. If you have any difficulty printing these Terms of Use or require assistance in obtaining a hard copy or electronic copy of these Terms of Use, you should contact our support team via the VMT Website.

 

4. Registration for the Salesforce.com Services via use of the VMT Application

4.1 The VMT Application is a mobile interface offered by us for the Salesforce.com Services and is designed to assist you to make use of the Salesforce.com Services via your mobile phone.

4.2 Only users who have registered may make use of the Salesforce.com Services via the VMT Application. To register for and use the Salesforce.com Services via the VMT Application, you will be required to:

4.2.1 download onto your mobile phone the VMT Application;

4.2.2 agree to these Terms of Use via the VMT Application;

4.2.3 provide us with all the information required by us to receive the payments due by you to VMT in respect of the VMT Application, including but not limited to, (i) your mobile phone number; and (ii) your bank account details against which debiting of payments due to VMT in respect of the use of the VMT Application or (iii) your credit card details, if any, against which such payments shall be processed;

4.2.4 validate your credit card / bank account details (if any) using the validation procedure outlined in paragraph 6.

 

5. Authorisation

You hereby authorize us to access your credit card and bank account nominated by you for the purposes of processing payments on your behalf in respect of the VMT Application and in so doing, you acknowledge that we act as your agent in this regard.

 

6. Payment for the VMT Application

When you issue a payment instruction to us via the VMT Application in order to make payment of an amount due to us and/or Salesforce.com, we will process such payment instruction against your credit card and/or bank account (whichever is applicable).

 

6. Identity authentication and credit card validation process

6.1 By your acceptance of these Terms of Use, you authorize us to make any inquiries we consider necessary to validate your identity, including making enquiries at any credit bureau.

6.2 You authorize us, upon your registration of a credit card, to process a transaction against your credit card of a random amount of no more than R10.00.

 

7. Privacy policy and security

7.1 We recognize the importance of protecting your privacy in respect of the personal information collected by us when you register for and download the VMT Application. We will attempt to limit the types of personal information we collect to only that to which you consent and which is necessary for the purposes of providing you with access to the VMT Application and the Salesforce.com Services.

7.2 In adopting this privacy policy, we wish to balance our legitimate business interests and your reasonable expectation of privacy. Accordingly, we will take reasonable steps to prevent unauthorized access to, or unauthorized disclosure of, your personal information, insofar as such information is collected by us to enable you to use the VMT Application.

7.3 Whilst we will attempt not to disclose any of your aforesaid personal information to third parties, except when we have your permission or for purposes of our legitimate business interests, you hereby agree that your personal information may be shared with (amongst others) the following parties:

7.3.1 our holding companies, subsidiary companies, agents, advisers, and service providers;

7.3.2 Salesforce.com;

7.3.3 any party involved in providing the Salesforce.com Services;

7.3.4 data processors; and

7.3.5 government and law enforcement agencies, where we are required by law to disclose your personal information to a party, and where we have reason to believe that a disclosure of personal information is necessary to identify, contact or bring legal action against a party who may be in breach of these Terms of Use, or may be causing injury to or interference with (either intentionally or unintentionally) our rights or property, other users or anyone else that could be harmed by such activities.

7.4 In order to ensure the security of the personal information provided by you to us in order to use the VMT Application and to guard against unauthorized use of the VMT Application, we:

7.4.1 link and verify the mobile phone number entered by you when you download the VMT Application to a mobile phone;

7.4.2 undertake the credit card validation process set out in paragraph 6, if applicable.

7.5 You acknowledge that the bank or banks at which your credit card and bank accounts are kept have in place and implement fraud monitoring policies, rules and regulations and that a bank may, at any time, stop or reverse any transaction into or out of your credit card or bank account. In addition to the fraud monitoring policies, rules and regulations applied by banks, we will, in our discretion:

7.5.1 not act on any payment instruction;

7.5.2 reverse any payment;

7.5.3 suspend your access to the VMT Application; and

7.5.4 report our suspicions to any relevant body or authority, such as the police.

 

8. Costs and fees

8.1 You acknowledge that your download of the VMT Application onto your mobile phone and your use of the VMT Application and the Salesforce.com Services will require the consumption of a certain amount of GPRS data on your mobile phone. While we will use our best endeavors to ensure that the amount of data consumed on your mobile phone when downloading and using via your mobile phone is as low as possible, you agree that you will be responsible for all costs charged by your mobile phone network operator in respect of the data consumed when accessing the VMT Application and the Salesforce.com Services via your mobile phone.

8.2 The fees charged to all users are set out and can be viewed on the VMT website.

9 Exclusion of liability for use of the VMT Application and the Salesforce.com Services

9.1 Your download of the VMT Application onto you mobile phone is entirely at your own risk. You agree that we will not be liable for any loss you may suffer as a result of any damage to your mobile phone in this regard.

9.2 You agree that we will not be liable for any unavailability, interruption, downtime, malfunction or failure of the Salesforce.com Services for any reason whatsoever caused by:

9.2.1 any act or omission of any third party including any mobile phone network operator;

9.2.2 any mobile phone network failures or problems that prevent or delay the transmission and receipt of GPRS data or the transmission and delivery of any SMS notifications contemplated in these Terms of Use; and

9.2.3 power failures, natural phenomena, riots, acts of vandalism, sabotage or any event beyond our control.

9.3 In addition, you agree that we will not be liable for any loss you may suffer as a result of any unauthorised use of the VMT Application and/or Salesforce.com Services.

9.4 Subject to the provisions of the ECT Act and to the fullest extent allowed by law, you hereby indemnify us against any loss, liability, expense, claim, penalty or damage, whether direct, indirect, special or consequential, arising out of the occurrence of the events contemplated in paragraphs 11.1, 11.2 and 11.3 above.

9.5 You further indemnify us against any demand, claim or action relating to or in connection with the VMT Application and/or Salesforce Services unless such demand, claim or action arose as a direct consequence of our gross negligence or willful misconduct. Any such demand, claim or action shall be limited to direct damages. Special and consequential damages are specifically excluded.

9.6 To the fullest extent allowed by law, if any of the limitations or exclusions of our liability in these Terms of Use are held by any competent court, arbitrator or authority to be invalid or unenforceable, in no event will our total cumulative liability to you exceed the actual amount of the disputed payment transaction.

9.7 For the purposes of this paragraph 9, any reference to us will be deemed to also include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, advisers, suppliers and content providers.

 

10 Our undertakings

10.1 We undertake to use our best endeavours to ensure that the VMT Application are kept free of viruses, destructive materials or any other data or code which is able to harm or otherwise impede in any manner the operation of a computer system, computer network, any handset or mobile device.

10.2 We shall, at all times ensure that the VMT Application complies with all applicable legislation, regulations and industry standards and practices.

 

11 Exclusion of warranties and representations

11.1 The VMT Application operates independently from the Salesforce.com Services and is provided "as is" and is subject to change without notice, with no warranties and representations, whether express, implied or statutory, including (without limitation) any warranty as to the operation, integrity, compatibility, availability or functionality being made by us as to the Salesforce.com Services.

11.2 Subject to the provisions of the ECT Act, the VMT Application is provided without any warranty whatsoever, whether express, implied or statutory, including (without limitation) any warranty as to the operation, integrity, compatibility, availability or functionality of the VMT Application.

11.3 You may not rely on any warranty or representation, which allegedly induced you to agree to these Terms of Use or to download the VMT Application or to register for the Salesforce.com Services, unless the representation or warranty is recorded in these Terms of Use.

11.4 The grant of any indulgence by us to you in respect of any matter connected to the use of the VMT Application and the Salesforce.com Services shall not constitute a waiver of any right by us or prevent or adversely affect the exercise by us of any existing or future right.

 

12 Intellectual property rights

12.1 The VMT Application and the VMT Website are protected by law. This incorporates all intellectual property rights in respect of the VMT Application and the VMT website, including all rights, title and interest (statutory and common law) in copyright, designs, trade marks and inventions. Any unauthorised use of the VMT Application and the VMT Website and all intellectual property rights related thereto is prohibited.

12.2 You will not acquire any right, title or interest, including any intellectual property rights, in or to the VMT Application or the VMT Website other than those rights expressly granted to you in these Terms of Use.

 

13 Variation of certain deeming provisions in the ECT Act

13.1 By using the VMT Application, you agree that these Terms of Use create a binding agreement between you, and us even though these Terms of Use are wholly or partly in the form of a data message. You agree specifically that:

13.1.1 the agreement will be treated as if it was concluded at our physical address on the date on which you first register for the VMT Application;

13.1.2 an electronic signature is not required by you or us for purposes of agreeing to these Terms of Use;

13.1.3 your use of the VMT Application is sufficient evidence of your agreement to these Terms of Use;

13.1.4 any data message sent by either you or us to the other will be deemed to have been sent from our physical address if neither your usual place of business nor residence is located within the Republic of South Africa;

13.1.5 any communication sent to you by an information system programmed to operate automatically on our behalf will be a data message attributable to, or authorised by us;

13.1.6 subject to the further provisions of these Terms of Use, a data message sent by you to us will only be treated as having been received by us when an acknowledgement of receipt is sent by us personally or a person who had authority to act on our behalf in respect of that data message; and

13.1.7 these Terms of Use will be interpreted and implemented in accordance with the laws of the Republic of South Africa and you agree to the jurisdiction of the courts of the Republic of South Africa.

 

14 Variation of these Terms of Use

14.1 Subject to the variations or amendments provided for in terms of these Terms of Use, no other variation or amendment, in any form whatsoever, of these Terms of Use will be enforceable or binding on us unless we have agreed to such variation or amendment in writing and for this purpose. "writing" shall be writing on paper signed in ink by our authorised representative and specifically excludes any writing that may be in electronic format.

14.2 We are entitled and reserve the right to vary or amend these Terms of Use from time to time and in our sole discretion. On the first occasion on which you access the VMT service after we amend the Terms of Use, you will be notified that amendments to the Terms of Use have been effected and if you continue to use the VMT service thereafter, the amended Terms of Use will immediately be treated as being effective and binding upon you.

14.3 It is your responsibility to access and familiarise yourself with any amendments to the Terms of Use on each occasion that you make use of the VMT service.

 

15 Additional disclosures in terms of section 43 of the ECT Act

In terms of section 43 of the ECT Act, you are entitled to the following additional information:

15.1 the names of VMT's office bearers being:

Gert Arnoldus du Toit (director), Pieter Willem du Toit (director) and Jaco van Lille (director)

15.2 our membership to any self-regulatory or accreditation bodies;

VMT is –

15.2.1 FIPS accredited

15.2.2 Triple-DES (TDES) accredited. To verify our accreditation you may view it at http://csrc.nist.gov/groups/STM/cavp/documents/des/tripledesval.html#723;

15.2.3 AES accredited. To verify our accreditation you may view it at http://csrc.nist.gov/groups/STM/cavp/documents/aes/aesval.html#886;

15.2.4 SHA1 accredited. To verify our accreditation you may view it at http://csrc.nist.gov/groups/STM/cavp/documents/shs/shaval.htm#876;

15.2.5 RSA accredited. To verify our accreditation you may view it at http://csrc.nist.gov/groups/STM/cavp/documents/dss/rsaval.html#427; and

15.2.6 Random Number Generator (RNG) accredited. To verify our accreditation you may view it at http://csrc.nist.gov/groups/STM/cavp/documents/rng/rngval.html#508.

 

16 Miscellaneous matters

16.1 Addresses

16.1.1 Our address for the service of any legal notice is:

16.1.1.1 Postal Address: VMT, The Planet Art, 32 Jamieson Street, Gardens, Cape Town, 8001, South Africa

16.1.1.2 Physical Address: VMT, The Planet Art, 32 Jamieson Street, Gardens, Cape Town, 8001, South Africa

16.1.1.3 Fax number: +27 (0) 21 424 7818

16.1.1.4 Telephone number: + 27214247818

16.1.2 Notices given to the above addresses shall be deemed to have been duly given:

16.1.2.1 14 days after posting, if posted by registered post to the party's postal address;

16.1.2.2 on delivery, if delivered to the party's physical address; and

16.1.2.2           on despatch, if sent to the party's then fax number.

 

16.2 Disputes, claims and legal proceedings

16.2.1 Any dispute declared by you and any claim which you may have against us arising out of or in connection with these Terms of Use or the VMT Application, including after termination, cancellation or amendment of these Terms of Use and/or the VMT Application, will be referred to arbitration in accordance with the Arbitration Act 1965 (as amended) or any replacement Act and will take place in accordance with the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa.

16.2.2 If we declare a dispute with you, or wish to institute any claim or legal proceedings against you arising out of or in connection with these Terms of Use or your use of the VMT Application, we reserve the right to deal with the matter in a forum of our choice, which will include but will not be limited to, the courts of the Republic of South Africa. This right will continue to apply after termination, cancellation or amendment of these Terms of Use.

16.2.3 Notwithstanding anything to the contrary contained in these Terms of Use, neither you nor we will be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the institution or resolution of a dispute or other legal proceedings.

 

16.3 Assignment

16.3.1 You shall not cede, assign or transfer any of your rights and obligations in these Terms of Use without our prior written consent.

16.3.2 We are entitled to cede, assign or transfer any of our rights and obligations in these Terms of Use without your prior written consent and without notice to you.