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Terms and Conditions | Privacy Policy | Competitions

Terms and Conditions

These are the terms and conditions for the service that you have chosen to utilize. We recommend that you print these out. By using the service, you agree to these terms, if you do not agree, please do not initiate the service.

1. DESCRIPTION OF SERVICE

1.1. We offer downloadable mobile entertainment content, such as Ringtones, Games, Graphics, text SMS's & other mobile data through its website, SMS (Short Message Service) services & USSD menus to certain compatible mobile devices (the "Service"). The Service may also include access to products & services of third parties. After proper registration & payment, you will be permitted to download certain products through the service to compatible mobile phones & other compatible devices.

2. REGISTRATION AND ACCESS TO THE SERVICE

Access to the Service.

2.1. In order to use the Service, you must be at least 18 years of age & have the bill payer's permission. If you are under 21 (twenty-one) then your parent or guardian should read and accept these terms of use and the Privacy Policy before you use any of the Services. The contract is void where prohibited.

2.2. In order to use the Service, you must also have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network through which We makes the Service available, & pay any service fees associated with any such access.

2.3. In addition, you must provide all equipment & software necessary to connect to the Service, including, but not limited to, a mobile handset or other mobile handset/device that's in working order & suitable for use in connection with the Service.

2.4. You are responsible for ensuring that your equipment &/or software do not disturb or interfere with Our operations. Any equipment or software causing interference shall be immediately disconnected from the Service & We shall have the right to immediately terminate this Agreement.

2.5. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products & services, shall be subject to the terms & conditions of this Agreement.

2.6. Use of any of our services constitutes the following: -

2.6.1. Your use of any of the Service offered to you, will be subject to our most current version of these Terms & Conditions for our Services and the Privacy Policy on this website at the time at which you use the Service.

2.6.2. You, the user, understand that by using any of our Services, you acknowledge that you have read, understood and accept these terms of use and any other TERMS including our Privacy Policy.

2.6.3. These terms of use and the Privacy Policy are not without legal force against you. Thus, when using our services and in particular when downloading any of our content, you are entering into a legally binding and enforceable agreement with us.

3. CONTRACTS FOR OUR SERVICE.

3.1. We offer our services as individual downloads or as a bundle of credits for a defined number of individual downloads on a renewable subscription basis. Unless otherwise expressly indicated, no information presented in the Service or in connection with any products & services shall be deemed as a binding offer by us, but as an invitation for you to order.

3.2. The contract for the ongoing Subscription Service between you & us shall begin when we, upon your request, provide you with access to the Service (such access may be based on a personal username & password generated for that purpose or on other data that we deem sufficient for your identification).

3.3. Access to the Service can be provided by delivering to you downloadable mobile entertainment content of the content category you subscribed to (e.g. by delivering a Ringtone or an text SMS, by your selecting a package on a USSD menu) or by enabling you to download the product (e.g. by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment content on the website of the service in question) or by providing access to the mobile entertainment content (e.g. by enabling the MSISDN for this product).

3.4. The subscription period is as chosen by you, and confirmed by us in the Welcome message, depending on the type of the subscription contract. The Subscription contract & the subscription period will be renewed as applicable & a new subscription fee shall become due for the new subscription period.

3.5. The subscription contract shall remain in effect until terminated &/or cancelled by you or Us. Contracts for the products & services offered by Us or independent third parties which are made available through the Service shall begin when we or the third party has accepted your order for the same or has provided you with the product or service pursuant to your order.

3.6. subscription contracts include a certain defined number of credits which entitle you to download, receive &/or access that defined number of individual downloads of mobile entertainment content for a predefined period as chosen by you at a set fee.

3.7. After entering into your subscription contract, we will transfer download credits to your account as per the predefined period accepted by you. The type & number of credits you are entitled to is dependent on the type of subscription you choose.

3.8. The provision of credits & the making available of the possibility to download, receive &/or access mobile entertainment content is offered for a flat fee. The flat fee shall become due at the beginning of the predefined period your subscription contract is valid irrespective of whether or not you actually download any content during any particular subscription period

3.9. The number of credits for downloads shall be reduced by actual downloaded mobile entertainment content, in other words the download of mobile entertainment content is evaluated as redemption of one or more credits & thereby reduces the total number of downloadable mobile entertainment content you are entitled to download, receive &/or access with your subscription contract during that particular subscription period.

3.10. Depending on the type of your subscription contract, if you do not use/redeem all your credits within the subscription period, the left over credits will either (1) be rolled over into the next subscription period & remain in your account until used/redeemed or until expiration or termination of your subscription contract or (2) will expire at the end of the respective subscription period.

3.11. If you download mobile entertainment content in excess of the amount allowed by your selected subscription contract, then you agree to pay the applicable retail rate for such additional downloads.

4. RESPONSIBILITY FOR THE USE OF THE SERVICE.

4.1. You are fully responsible for all activities that occur under your password or account or through your Subscription. That responsibility includes, but is not limited to, the responsibility for any fees for the use of the Service or any products & services made available through the Service.

4.2. You agree to notify us immediately in case you become aware of or suspect unauthorized use of your password or account or Subscription or any other breach of security, & to ensure that you log out of your account at the end of each session.

4.3. We cannot & will not be liable for any loss or damage arising from your failure to comply with this Section. You acknowledge & agree that you will not use the Service for any commercial purposes.

5. REGISTRATION & REGISTRATION DATA.

5.1. Upon your request, We may register you as a user & provide you with access to the Service by allocating you a personal username & password. We may need to change usernames allocated to certain aspects of its Services & reserves the right to do so (you will be informed if this is necessary).

5.2. The same procedure may apply to products & services made available through the Service.

5.3. You are solely responsible for maintaining the confidentiality of any possible password & account. In exchange for your use of the Service (in addition to the payment of applicable fees) you agree to: (1) provide true, accurate & complete information about yourself as prompted by the registration form ("Registration Data") & (2) maintain & promptly update the Registration Data to keep it true, accurate, current & complete.

5.4. If We have reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, We reserve the right to suspend or terminate your account & refuse any & all current or future use of the Service (or any portion thereof). Prior to any such withdrawal we will temporarily withdraw the Service & notify you of the grounds on which the Service has been withdrawn. If the position has not permanent.

5.5. ACCESS WITHOUT REGISTRATION.

5.5.1. We may provide you with access to some Services without you registering as a user. In that case your identification is based on other means of identification that We deem appropriate. Identification is typically based on data identifying your Subscription, such as your mobile phone number. You agree that such information may be collected & disclosed to us & used in accordance with Section 3.

5.6. ASSIGNMENT.

5.6.1. You may not assign or transfer in any way the contract or any of your contractual rights. We shall have the right to assign our rights & obligations under this contract & any receivables based on this contract to a third party upon written notice to you, provided such assignment is made under terms not less favourable 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.

5.7. LICENSE TO DOWNLOAD.

5.7.1. You acknowledge & agree that the Download(s) made available as part of the Service are owned by us, its affiliate &/or licensors, as applicable, & are protected by intellectual property laws. We hereby grant, & you hereby accept, a limited, non-exclusive, non-transferable, revocable license to download & use the Download(s) & the Service on a designated compatible mobile device solely for your own personal non-commercial use. You further acknowledge & agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement.

6. INTERRUPTIONS OR DISCONTINUATION OF SERVICE.

6.1. We may suspend the Service for repair, maintenance, &/or upgrade work. In such event, We shall aim at keeping the said interruption short & at causing as little inconvenience to you as reasonably possible. 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 notify you of this fact & reimburse any pre-paid fees.

7. CONTRACTS FOR PRODUCTS & SERVICES OF THIRD PARTIES.

7.1. The Service may also include access to products & services of independent third parties either directly or via links to sites operated by such third parties. Where reasonably possible, We shall indicate the products & services as third party content. Even though they may be co-branded with Our brand & therefore include Our trademarks, the contracts for products & services provided by third parties are concluded directly between you & the third party. WE SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THRID PARTIES.

8. PRIVACY POLICY

8.1. We are committed to protecting your privacy whenever personal information is requested from you because your privacy is important to us. Personal information identifies you as an individual rather than a number or name on a list. Please read this policy listed at the top of this page to understand how we collect and use information.

9. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITIES

9.1. YOU UNDERSTAND THAT YOUR USE OF THE SERVICE & THE DOWNLOAD OF CONTENT IS AT YOUR OWN SOLE RISK & THAT YOU MUST COMPLY WITH THE INSTRUCTIONS GIVEN BY US. Except in jurisdictions where such provisions are restricted, you agree that Our entire liability to you or any third person, & your or any third person\'s exclusive remedy, in law, in equity, or otherwise, with respect to the service(s) provided under this Agreement &/or for any breach of this Agreement is solely limited to the amount you paid for such service(s) during the term of this Agreement.

9.2. Except in jurisdictions where such provisions are restricted, We, our licensors & contractors (including any third parties providing all or part of the services) shall not be liable for any indirect, incidental, special or consequential damages Even if We have been advised of the possibility of such damages, to the extent that a country does not permit the exclusion or limitation of liability as set forth herein, Our liability is limited to the extent permitted by law in such Country.

10. INDEMNIFICATION

10.1. You agree to indemnify & hold Us, Our parent Company, subsidiaries, affiliates, officers, agents, directors, contractors, licensors & other partners & employees, harmless from any loss, liability, claim, or demand, including reasonable attorney\'s fees, made by any third party due to or arising out of or in connection with (1) your use of the Service, & (2) the breach by you of your representations & warranties set forth herein.

11. INTELLECTUAL PROPERTY RIGHTS

11.1. Except as otherwise set forth herein, all right, title & interest in & to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service are owned by Us or our licensors, & you agree to make no claim of interest in or ownership of any such Intellectual Property Rights. You acknowledge that no title to our Intellectual Property Rights is transferred to you, & that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this Agreement.

12. CHARGES

12.1The fees for your Subscription Service is available on any one of the following platforms: (1) Our USSD menus, (2) Print & TV adverts & web site. The fee shall be charged for every subscription period the contract is in effect. You shall pay the subscription fee for the Services & the use thereof in accordance with the price lists in force at the time of your order. Unless otherwise indicated, the charges shall be billed according to the billing method agreed upon by you & your mobile operator. Where applicable, the charges can also be paid by using credits, with your credit card, by bank transfer or through your user account. The different payment methods are specified during the order process for the product you chose. We may also invoice you for the charges of third parties whose products or services are available through the Service if this has been agreed upon with said third party. Such charges shall be invoiced in accordance with the fees of such third parties.

13. FEE CHANGES

13.1. All fees, including fees for existing subscription contracts, are subject to change upon notice from Us. We will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you may cancel your subscription &/or your account effective immediately upon termination.

13.2. Although we endeavour to provide the highest level of customer service at all times, we cannot be held responsible for factors beyond our control, which may affect the delivery of the content downloaded. A list of compatible handsets/devices is available on this site. It is important that you check this list before attempting to download any content.

13.3. When downloading mobile content using your mobile handset/device, all charges relating to such downloads will be levied directly against your mobile services account by your service provider, including Subscription fees.

13.4. If you download mobile entertainment content in excess of the amount allowed by your selected subscription contract, then you agree to pay the applicable retail rate for such additional downloads.

14. TERMINATION & CANCELLATION OF SERVICES; RIGHT TO WITHDRAW

Service Short Code To Opt Out Of Marketing To Unsubscribe from a club
Xcite Mobile 31314 SMS Out to 31314 To stop SMS Stop and your club name to 31314 E.g. sms Stop Cash to 31314
Divine 31317 SMS Out to 31317 To stop SMS Stop and your club name to 31317 E.g. sms Stop Cash to 31317
Mitunes 36555 SMS Out to 36555 To stop SMS Stop and your club name to 36555 E.g. sms Stop Cash to 36555
MMA Chaos 38333 SMS Out to 38333 To stop SMS Stop and your club name to 38333 E.g. sms Stop Cash to 38333
THUBA 42243 SMS Out to 42243 To stop SMS Stop and your club name to 42243 E.g. sms Stop Cash to 42243
Face of Mobile 31313 SMS Out to 31313 To stop SMS Stop and your club name to 31313 E.g. sms Stop Cash to 31313
MobiX 31316 SMS Out to 31316 To stop SMS Stop and your club name to 31316 E.g. sms Stop Cash to 31316
Mzansi 39339 SMS Out to 39339 To stop SMS Stop and your club name to 39339 E.g. sms Stop Cash to 39339
Mega Media 41888 SMS Out to 41888 To stop SMS Stop and your club name to 41888 E.g. sms Stop Cash to 41888
Ekasi 42448 SMS Out to 42448 To stop SMS Stop and your club name to 42448 E.g. sms Stop Cash to 42448

15. Communication, Complaints Handling and Dispute Resolution

15.1. You agree that we may from time to time send you communications regarding (without being limited to) special offers or discounts which we may negotiate for and offer to you, operational changes that may affect the Services and/or new services or products launched. All communications will abide by our Privacy Policy and applicable law. You will always be entitled to notify us in writing that you do not wish to receive or continue to receive such communications and if you are a consumer as contemplated in the CPA, to pre-emptively block the receipt of such communications.

15.2. Complaints must be submitted to us and will be dealt with by us in accordance with the provisions of this clause 14.

15.3. Any payment default by you arising from, or in connection with, the Service provided by us, will be excluded from the provisions of this clause, and we will be entitled to proceed to institute legal action against you.

15.4. Without prejudice to your rights in law, you are required, to first approach us with any complaint or dispute and afford us an opportunity to resolve a compliant before you approach WASPA [ contact details available at http://www.waspa.org.za ] or any other relevant authority, court or other dispute resolution body or refer the matter to Arbitration as contemplated in clause 14.11 below.

15.5. As a registered WASP, we are bound by the rules and regulations and Code of Conduct set by the mobile regulatory authority WASPA. To view the Code of Conduct, go to https://waspa.org.za/coc/

15.6. Please direct any and all complaints to [email protected] Your complaint should include the following:

15.6.1. Your name and Surname

15.6.2. Your Cell Phone number that has been effected

15.6.3. The date on which your complaint arose

15.6.4. A brief description of our grievance

15.7. We will acknowledge receipt of your complaint within 3 (three) working days of receipt thereof

15.8. We will formally respond with a view to proposing a resolution of your complaint in writing within 7 (seven) working days of receipt thereof, or within such longer period as we reasonably require under circumstances where the resolution of the complaint is for example (but without limitation) in the hands of a supplier or third party service provider.

15.9. You may approach WASPA or any other relevant authority, court or dispute resolution body or refer the matter to Arbitration as set out in clause 16.10 below, for resolution of the dispute, should you not be satisfied with the proposed resolution of the dispute by us.

15.10. Any dispute between the parties may be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held either in Cape Town or Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in, and judgment upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.

15.11. The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.

15.12. The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.

16. CHANGES IN TERMS

16.1. We reserve the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our web site together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our web site on a regular basis in order to determine whether any amendments have been made.

17. SEVERABILITY.

17.1. 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.

18. ECT ACT

18.1. We are required to make our contact details, its domicilia citandi et executandi and certain other information available to its Subscribers who enter into electronic transactions with us. This information is available below.

19. WAIVER.

19.1. Our failure to pursue any available claim or defence pursuant to this Agreement or otherwise will not be a waiver of such claim or defence. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.

20. SURVIVAL.

20.1. In the event this Agreement terminates as provided herein, clauses 3, 6, 7, 10, 11 and 15 of these Terms shall survive such expiration or termination.

21. GOVERNING LAW AND JURISDICTION.

21.1. You hereby consent to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by us arising out of this Agreement, provided that we shall be entitled, in our reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause above.

21.2. This website may be accessed throughout South Africa and overseas. We make no representation that the content of this website complies with the laws (including intellectual property laws) of any country outside South Africa.

21.3. If you access our website or Services from outside of the South Africa, you do so on your own responsibility and are responsible for ensuring compliance with all laws in the place where you are located.

22. FORCE MAJEURE

22.1. 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 or fixed telecommunications networks or connection thereto, governmental restraints and act(s) of legislature or any other cause outside our reasonable control.

Additional information required by Electronic Communications and Transactions Act (ECT Act)



Name Opportune Trading 117 CC t/a Xcite Mobile
Registration Number 2005/052571/23
Legal Status Close Corporation registered in South Africa
Physical Address (Use this address to serve legal documents) 601, 6th Floor, The Studios, 4 Loop Street, Cape Town 8001
Postal Address PO Box 6340, Roggebaai 8001
Telephone Number 0861 11 11 06
Fax Number 021 425 9195
Web Site www.xcitemobile.co.za
Email Address [email protected]
Member of Self-Regulatory Bodies and Industry Code of Conduct Xcite Mobile provides its services by means of Viamedia (Pty) Ltd which is an accredited member of the Wireless Applications Service Providers Association (WASPA) and has agreed to abide by the Rules, Advertising Rules, Regulations and Code of Conduct of WASPA. Should you have a comment, complaint or query please visit the WASPA website: www.waspa.org.za or to view the Code of Conduct go to http://www.waspa.org.za/code/index.shtml