1. ACCEPTANCE TERMS OF SERVICE
Mobile Academy with headquarters at Amerfoortseweg 32-34, Kamer 4, 375 1LK Bunschoten-Spakenburg, The Netherlands, (www.abc.com ) hereafter referred to as “Provider”, “we”, “us” or “our”) offers premium mobile learning courses optimized for mobile devices. These services are available as a browser-based application (“Services”).
By visiting the website or the corresponding WAP site (“Sites”) and/or registering the Services, you accept that you are entering into a binding contract with us governed by the Terms of Service and Privacy Policy.
Please take the time to read and understand the Terms of Service. If you do not agree with the Terms of Service as well as the Privacy Policy, please don’t use the Sites or any of the Services.
The Terms of Service and Privacy Policy may be updated from time to time. These changes will form part of the Terms of Service, even if you do not re-use the Sites. You are responsible for being familiar with any amendments or modifications of the Terms of Service and Privacy Policy.
2. ACCESS AND AVAILABILITY
Full access to the Service can be provided by a fee-based subscription which can be purchased for different periods and will be automatically renewed if not cancelled. We grant our subscribers full access to the content as long as they have an active subscription.
The fees shall become due upon purchase of the subscription irrespective of whether or not you actually use the Service; the consideration for the fees shall solely be the provision of the right to download, receive and/or access the content.
You agree to pay on time any fees, tariffs or other charges incurred in creating the subscription.
The Service is provided “as is” and “as available” at the time of use or consumption and Provider does not accept any liability or provide any guarantees if personal settings, information or messages are not saved (on time), are deleted or incorrectly delivered.
To make the most out of our Service you must have the necessary mobile communication means with easy internet access. Some wireless applications are only available for a select number of mobile devices. This is an issue with its manufacturers, hence out of the control of Provider. To prevent any disappointment, we ask you to check the compatibility of your device before subscribing to the Service.
3. AGE RESTRICTION
In order to use the Service you (a) must at least have reached the age as per the rules and regulations of your country of residence and have bill payer’s permission to sign-up for and use the Service on his behalf and (b) agree on behalf of the bill payer and yourself to be bound by the Terms of Service and Privacy Policy.
4. FEES
For getting full access to a Service you will be charged the applicable fees.
The charges will be invoiced through the mobile bill you receive from the mobile operator of your network or through any other selected payment method. Separate text message fees and/or network fees from your mobile operator can apply.
In the free welcome message from Provider you will find information about the Service fee and the frequency of the Service. We ask you to check and store this welcome message on your mobile device.
All fees, including fees for existing subscription contracts, are subject to change upon notice from Provider. Provider 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 effective immediately upon termination.
If you dispute any payment made, you must contact us immediately and provide full details of your claim.
5. SECURITY AND REGISTRATION OBLIGATION
To guarantee safe use of the Service, as well as payment of the applicable fees, you must be registered. You guarantee that the information (“Registered Information”) provided to us is correct and complete at all times. If Provider, in its sole discretion, has reason to believe that the Registered Information is not accurate or complete, Provider is entitled to suspend or terminate your account and to withhold both current and future use of the Service, or any component of it.
You are responsible for maintaining the secrecy of any passwords and/or accounts issued to you by Provider, and you are fully liable for all actions carried out involving the use of your password or account. You should contact Provider if you notice or suspect that unauthorized use has been made of your password or account, or any other breach of security. Also contact us if you learn of any other unlawful material or activity on the Services, or any material or activity that breaches these Terms of Service.
Provider may provide you with access to some Services without being registered, such as sign-up via your mobile device for the Service. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number.
6. CHANGES OF THE SERVICES
We reserve the right to upgrade, amend, suspend or discontinue the Services without prior notification at any time. You agree that we shall not be liable to you or to any third party for any amendment, suspension or discontinuance of the Services and you will not be entitled to any compensation or other payment.
7. CODE OF CONDUCT
You agree to use the Service in accordance with the following Code of Conduct:
a. you will not use the Services for any illegal, unauthorized or commercial purpose;
b. you will keep all information provided to you through the Service as private and confidential and will not give such information to anyone without the permission of Provider or the person who provided it to you;
c. you will not use the Service to engage in any form of harassment or offensive behavior, including but not limited to the posting of communications, pictures or recordings which contain libelous, slanderous, abusive or defamatory statements, or racist, pornographic, obscene, or offensive language or images;
d. you will not use the Service to infringe the privacy rights, property rights, or any other rights of Provider or any person;
e. you will not use the Service in any way which violates, plagiarizes or infringes upon the rights of Provider or any third party, including but not limited to any copyright or privacy or other personal or proprietary rights, or is fraudulent or otherwise unlawful or violates any law;
f. you will not reproduce, copy, sell, resell or use the Service, in whole or in part; and
g. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Provider’s operations.
8. BREACHING TERMS
Without prejudice to our other rights under these Terms of Service, if you breach these Terms of Service in any way, or if we reasonably suspect that you have breached these Terms of Service in any way, we may:
a. send you one or more formal warnings;
b. temporarily suspend your access to the Services;
c. permanently prohibit you from accessing the Services;
d. block computers using your IP address from accessing the Services;
e. contact any or all your internet service providers and request that they block your access to the Services;
f. commence legal action against you, whether for breach of contract or otherwise; and/or
g. suspend or delete your account on the Services.
and you agree that you will not receive refund of subscription fees already paid to us.
Where we suspend or prohibit or block your access to the Services or a part of the Services, you must not take any action to circumvent such suspension or prohibition or blocking (including without limitation creating and/or using a different account).
9. PRIVACY POLICY
Our use of your personal information is governed by our Privacy Policy. Our Privacy Policy forms an integral part of the Terms of Service, and by agreeing to the Terms of Service, you also give consent to the way we may handle your personal information as detailed in our Privacy Policy.
10. INDEMNIFICATION
You agree to indemnify, defend and hold harmless Provider, its parent companies, subsidiaries, related entities, affiliates, subcontractors and their respective directors, officers, agents, employees and their representatives from and against any and all claims, damages, lawsuits, demands, actions, liabilities, or other proceedings brought against it by any third party due to, arising out of, or related to: (i) the use of the Service, the content, the downloads, Software and Sites, including without limitation, your downloads from the Sites; (ii) violation of the Terms of Service; (iii) any breach of any express or implied representation(s) or warranty(ies) allegedly made by Provider; or (iv) violation of any law, regulation or third party rights. You shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Provider in connection with or arising from any such claim, lawsuit, action, liabilities, demand or other proceeding.
11. CANCELLATION AND TERMINATION
Information related to termination of Services as well as interruption of the information flow via SMS can be found on the Sites that correspond with the Service. Also, in the free welcome message from Provider you will find information on how to cancel the Service. In addition, an e-mail can be sent to the mail address, as communicated to you on the Sites and/or through our Services or to supportnl@mobileacademy.com.
When your country of residence is part of the European Union and you have purchased a subscription, you have the right to withdrawal from a subscription within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of purchase of subscription. To exercise the right of withdrawal you must inform us of your decision to withdraw from the purchase by an unequivocal statement. You may use enclosed European model withdrawal form, but this is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
If you withdraw from the purchase, we shall reimburse to you all payments received from you, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdrawal from the purchase. You will not incur any fees as a result of such reimbursement.
If you us the Service during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from the subscription, in comparison with the full coverage of the subscription.
The right of withdrawal does not apply for renewal of subscription.
12. ADVERTISING
As far as your country of residence allows us, we may use advertisements and promotions. As a condition to using the Services, you agree that we may display advertisements and other promotions on our Sites and deliver advertisements and promotions on your mobile device or otherwise in connection with our Services. You also agree that you will not attempt to block or otherwise interfere with such advertisements or promotions.
We will not share your personal details with third parties without your consent. You have the right to ask us at any time not to contact you by way of direct marketing.
The inclusion of any advertising or promotion on our Sites or in our Services does not constitute any endorsement by Provider of such content, product, service or company. Provider 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 third parties. You agree that provider is not liable for any damage of any nature whatever that may be the result of such transactions.
13. INTELLECTUAL PROPERTY RIGHTS
You are aware and agree that software used in connection with the Service (“Software”), the Sites as well as the Services contain information and marks that is protected by valid and applicable copyright law, trade secret law, trademark law and any other intellectual property rights and laws. Except as otherwise set forth herein, all now known and hereafter rights of every nature worldwide pertaining to the Sites, Services and Software in or as part of any version, belongs to us at all times (“Intellectual Property Right”).
You agree to make no claim of interest in or ownership of any Intellectual Property Rights and you acknowledge that no title to the Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, other than the rights expressly granted in the Terms of Service.
You guarantee that you will not amend, rent, rent out, lend, lease, borrow, loan, sell, distribute, create or generate content or products partially or entirely derived from the Service or the Software except in the event that Provider has given you explicit written permission to do so.
Provider hereby grants you, and you hereby accept, a personal, limited, non-transferable, non-exclusive, revocable and non-assignable license and permission to install the Software and download the content to use the Service on a designated compatible mobile device solely for your own personal non-commercial use and to use the Software and the Sites solely in accordance with the Terms of Service, as long as you do not copy, alter or amend any Software, source codes or content, or reproduce, modify, perform, transfer, distribute, sell, resell, create a derived product or content from it, or carry out reverse engineer or reverse assembly those, or otherwise attempt to find a source code, and you agree not to sell any rights related to the content, the Software and the Intellectual Property Rights, code those, issue sub-licenses for those, encumber those with security rights or otherwise transfer those. You guarantee that you will not amend the content, the Software and Intellectual Property Rights in any way or use amended versions of the Software and Intellectual Property Rights, including (but not limited to) in order to gain unauthorized access to the Service. You guarantee that you will only use the interface provided by the Provider in order to access the Service. Provider herewith grants permission to make only one copy of the information on the equipment you use for gaining access to the Service and to use and display the copy of the Registered Information made on that equipment for private purposes.
14. NO WARRANTY
WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, AGENTS AND LICENSORS (THE “PROVIDER PARTIES”) DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SERVICE, THE CONTENT, THIS SOFTWARE AND SITES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. THE SERVICE, THE CONTENT, THE SOFTWARE AND SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES WHATSOEVER. THE PROVIDER PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE, THE CONTENT, SOFTWARE AND SITES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS;
b. THE PROVIDER PARTIES DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE, THE CONTENT, SOFTWARE AND SITES. THE PROVIDER PARTIES DO NOT WARRANT THAT THE SERVICE, THE CONTENT, SOFTWARE AND SITES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE, THE CONTENT, THE SOFTWARE AND SITES WILL REMAIN AVAILABLE, BE UNINTERRUPTED AND ERROR FREE;
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE;
d. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SERVICE THE CONTENT, SOFTWARE AND SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM, MOBILE PHONE, DEVICE OR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD OR USE OF THE CONTENT, THIS SOFTWARE AND SITES;
e. IMAGES OF PERSONS SHOWN ON THE SITES AND/OR IN THE SERVICES ARE FOR ILLUSTRATIVE PURPOSES ONLY. THESE ARE NOT THE ACTUAL PEOPLE THAT PROVIDE THE SERVICES TO YOU; AND
f. WE ARE NOT RESPONSIBLE FOR ANY MISCHARACTERIZATIONS OR MISREPRESENTATIONS OF THE IDEAS OR FACTS AS PRESENTED IN THE CONTENT AND/OR SITES.
15. LIMITATION OF LIABILITY
YOU EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES, SHALL THE PROVIDER PARTIES BE LIABLE TO YOU OR A THIRD PARTY FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, THIRD PARTY OR CONSEQUENTIAL (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF YOUR USE, MISUSE OR INABILITY TO USE THE SERVICE, THE CONTENT, SOFTWARE AND SITES, EVEN IF PROVIDER’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN THIS SECTION, SO THE FOREGOING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE PROVIDER PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO REGISTER FOR THE SERVICE, THE CONTENT, THE SOFTWARE AND SITES.
16. GENERAL INFORMATION
These Terms of Service and our Privacy Policy form the entire legal agreement and understanding between you and Provider and supersede all previous agreements, understandings and representations between you and Provider relating to the Sites or the Services. You agree that no joint venture, partnership, employment or agency relationship exists between you and us as a result of the Terms of Service or the use of the Sites or the Services.
You may not transfer any of your rights or delegate any of your obligations under this agreement without our prior written consent. Nothing in this agreement affects your statutory right as a consumer.
17. GOVERNING LAW, JURISDICTION AND SEVERABILITY
National laws from your country of residence are applicable to the relationship between you and Provider, regardless of provisions of applicable international law. You and Provider hereby waive any right to jury trial with respect to any action brought in connection with the Terms of Service. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
Disputes will be submitted to final and binding arbitration under the rules of the arbitration association in your country. Any failure by Provider to exercise or invoke certain rights or stipulations laid down in the Terms of Service in no way constitutes a waiver or renunciation of those rights or stipulations.
In the event any provision of the Terms of Service is determined to be invalid or unenforceable by a court of competent jurisdiction or appointed arbitrator, such determination shall in no way affect the validity or enforceability of any other provision herein.
ANNEX A
European model withdrawal form (complete and return this form only if you wish to withdraw from the purchase)
To Mobile Academy, Amerfoortseweg 32-34, Kamer 4, 375 1LK Bunschoten-Spakenburg, The Netherlands, e-mail address supportnl@mobileacademy.com,
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
Ordered on (*)/received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date
(*) delete as appropriate.