| Privacy policy |
| This privacy policy sets out how MOBILE SPARKLES LTD, registered in Ontario, Canada. Kingdom with offices located at 3950 14th Ave, Suite #205, Markham, ON L3R 0A9, Canada ("Us" "We" "Our"), uses and protects any information that You give Us when You use the Mobile Sparkles services over this website (referred to as the "Website"). |
| We are committed to ensuring that Your privacy is protected. Should We ask You to provide certain information by which You can be identified when using this website, then You can be assured that it will only be used in accordance with this privacy statement. |
| We may change this policy from time to time by updating this page. You should check this page from time to time to ensure that You are happy with any changes. |
| 1. What we collect |
| We may collect the following information: |
| o name and job title |
| o contact information including email address |
| o mobile telephone number and network details |
| o other information relevant to customer surveys and/or offers |
| o billing address |
| 2. What we do with the information |
| We gather this information to understand Your needs and provide You with a better service, and in particular for the following reasons: |
| o Your information will enable Us to provide You with the access to all parts of Our Website and to supply the goods or services You have requested. |
| o Your information will also enable Us to bill You and to contact You where necessary concerning Your orders and Your ongoing account with Us. |
| o We may use the information to administer, improve and develop Our products and services. |
| o In particular, We may use the information to contact You for Your views on Our services and to notify You occasionally about important changes or developments to the Website or Our services. |
| o We may periodically send promotional emails about new products, special offers or other information which We think You may find interesting using the email address which You have provided. |
| o From time to time, We may also use Your information to contact You for market research purposes. We may contact You by email, phone, fax or mail. We may use the information to customize the Website according to Your interests. |
| o Internal record keeping of all data needed for the performance of services. |
| 3. Security |
| We are committed to ensuring that Your information is secure. In order to prevent unauthorised access or disclosure, We have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information We collect online. We will retain Your information for a reasonable period or as long as the law requires. |
| 4. How We use cookies |
| A cookie is a small file which asks permission to be placed on Your computer's hard drive. Once You agree, the file is added and the cookie helps analyse web traffic or lets You know when You visit a particular site. Cookies allow web applications to respond to You as an individual. The web application can tailor its operations to Your needs, likes and dislikes by gathering and remembering information about Your preferences. |
| We use traffic log cookies to identify which pages are being used. This helps Us analyse data about web page traffic and improve Our website in order to tailor it to customer needs. We only use this information for statistical analysis purposes and then the data is removed from the system. |
| Overall, cookies help Us provide You with a better website, by enabling Us to monitor which pages You find useful and which You do not. A cookie in no way gives Us access to Your computer or any information about You, other than the data You choose to share with Us. |
| You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but You can usually modify Your browser setting to decline cookies if You prefer. This may prevent You from taking full advantage of the website. |
| 5. Links to other websites |
| Our website may contain links to other websites of interest. However, once You have used these links to leave Our site, You should note that We do not have any control over that other website. Therefore, We cannot be responsible for the protection and privacy of any information which You provide whilst visiting such sites and such sites are not governed by this privacy statement. You should exercise caution and look at the privacy statement applicable to the website in question. |
| 6. Controlling Your personal information |
| You may choose to restrict the collection or use of Your personal information in the following ways: |
| o whenever You are asked to fill in a form on the website, look for the box that You can click to indicate that You do not want the information to be used by anybody for direct marketing purposes |
| o if You have previously agreed to Us using Your personal information for direct marketing purposes, You may change your mind at any time by writing to or emailing Us |
| We will not sell, distribute or lease Your personal information to third parties unless We have Your permission or are required by law to do so. We may use Your personal information to send You promotional information about third parties which We think You may find interesting if You tell Us that You wish this to happen. |
| 7. Accessing and updating |
| You are entitled to see the information held about You and You may ask Us to make any necessary changes to ensure that it is accurate and kept up to date. You may request details of personal information which We hold about You. A small fee will be payable. |
| 8. Questions, complaints, and contacts |
| o A senior company officer has been appointed as the Privacy Officer at Mobile Sparkles Ltd.. The Privacy Officer is accountable for all personal information at Mobile Sparkles. You may contact the Privacy Officer at: |
| By Mail: |
| Chief Privacy Officer |
| Legal department |
| Mobile Sparkles Ltd |
| 3950 14th Ave, Suite #205 |
| Markham, ON L3R 0A9, Canada |
| legal@mobilesparkles.com |
| o The Office of the Privacy Commissioner of Canada oversees Mobile Sparkles personal information handling practices. If your privacy concerns are not addressed to your satisfaction by Mobile Sparkles. you may contact the: |
| 1. Office of the Privacy Commissioner of Canada for further guidance: |
| 2. By Phone: 1-800-282-1376 or 613-995-8210 |
| By Fax: 613-947-6850 |
| By E-mail: info@privcom.gc.ca |
| Website: www.privcom.gc.ca? |
| Mobile Sparkles Push Privacy Policy |
| 1. Introduction |
| PLEASE READ THIS PRIVACY POLICY CAREFULLY BEFORE USING THE WEBSITE. BY ACCESSING OR USING THE MOBILE SPARKLES PUSH, YOU AGREE TO BE BOUND BY ALL RULES, TERMS, CONDITIONS, RESTRICTIONS AND NOTICES HEREIN, SO IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCES OR USE THE SERVICE. THIS PRIVACY POLICY TOGETHER WITH MOBILE SPARKLES PUSH TERMS OF USE FORM BINDING DOCUMENT FOR YOU WHEN USING AND PROVIDING SERVICE TO YOUR USERS. |
| 2. Changes of Privacy policy |
| Mobile Sparkles reserves the right to change or modify this Privacy Policy or change the Website, including terminating, eliminating, supplementing, modifying, adding to or discontinuing any content, promotion, data on or feature of the Website, at any time and in its sole discretion. You can find the most recent version of this Privacy Policy here, with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof or by other means of electronic communication to You. Your continued use of Mobile Sparkles Push following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, You should frequently review the Privacy Policy and applicable policies to understand the terms and conditions that apply to Your use of the Mobile Sparkles Push. If we need to update our Privacy Policy in the future, we will post the revised Privacy Policy on the Website and update the "Last Updated" date to reflect the date the Privacy Policy was updated. If You do not agree to the amended terms, You must stop using the Mobile Sparkles Push. Be sure to return to this page periodically to ensure familiarity with the most current version of the Privacy Policy. |
| 3. Collection and use of your information |
| We are committed to ensuring that Your privacy is protected. Should We ask You to provide certain information by which You can be identified when using this website, then You can be assured that it will only be used in accordance with this privacy statement. |
| Mobile Sparkles will collect information from You based upon our business relationship and your use of the website and our services and products. |
| During the registration process, You are required to provide us with certain contact information, including your name, address, phone number and email address. We use this information to contact You about the services we offer in which you have expressed interest. |
| A cookie is a small file which asks permission to be placed on Your computer's hard drive. Once You agree, the file is added and the cookie helps analyse web traffic or lets You know when You visit a particular site. Cookies allow web applications to respond to You as an individual. The web application can tailor its operations to Your needs, likes and dislikes by gathering and remembering information about Your preferences. |
| We use traffic log cookies to identify which pages are being used. This helps us analyse data about web page traffic and improve Our website in order to tailor it to customer needs. We only use this information for statistical analysis purposes and then the data is removed from the system. |
| Overall, cookies help us provide You with a better website, by enabling us to monitor which pages You find useful and which You do not. A cookie in no way gives us access to Your computer or any information about You, other than the data You choose to share with us. |
| You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but You can usually modify Your browser setting to decline cookies if You prefer. This may prevent You from taking full advantage of the website. |
| Our website may contain links to other websites of interest. However, once You have used these links to leave our site, You should note that we do not have any control over that other website. Therefore, we cannot be responsible for the protection and privacy of any information which You provide whilst visiting such sites and such sites are not governed by this privacy statement. You should exercise caution and look at the privacy statement applicable to the website in question. |
| 4. Collection and use of your users' information |
| When providing the Service to Your users, we may have an insight in all the information regarding Your users, but in no case will these information be used for purposes other than providing the Service to Your users. |
| We have the ability to collect the location information from Your users. All information thus collected will not be shared and will not be used for any purpose other than for providing the Service to Your users. |
| We developed the possibility of opting-out of the Service for Your users who do not longer want to use the Service. You are obliged to incorporate this possibility into Your Application, so that Your users can at any time be unsubscribed from the Service. |
| Updated: June 1, 2017 |
| This Acceptable Use Policy is a part of and is governed by our Terms of Use, to which you have agreed and by which you are legally bound. Without limiting the other terms and conditions in the Terms of Use, this Acceptable Use Policy governs how you may use the Services. We may change the Acceptable Use Policy from time to time as set forth in the Terms of Use. Capitalized terms used in this Acceptable Use Policy and not otherwise defined herein shall have the corresponding meaning set forth in the Terms of Use. |
| You may not (and may not permit any third party to) use the Service in a manner contrary to the requirements of us, a mobile operator, regulator or self-regulatory body. Our Services may be used only for lawful purposes and may not be used for any illegal, improper or abusive activities. |
| The following list gives examples of uses of the Services that are illegal, improper or abusive. This list is provided by way of example and is not exhaustive and it is your responsibility to comply with all applicable laws. |
| " Damaging, interfering with or adversely impacting the availability, reliability, or stability of our Services or third party systems and networks relating to our Services. |
| " Overburdening, disabling, or launching or facilitating a denial of service attack on any of our Services or third party systems and networks relating to our Services. |
| " Attempting to circumvent or break any security mechanism on any of the Services or using the Services in any manner that poses a security or other risk to us, our vendors, any user of our Services, or any of our or their respective customers. |
| " Benchmarking, tampering with, unauthorized testing, reverse-engineering, decompiling, or otherwise using the Services in order to find limitations or vulnerabilities or evade filtering capabilities, or any other purpose not authorized by us. |
| " Using our free MO (inbound) SMS Service in an unbalanced volume relative to our MT (outbound) SMS Service. Our MO (inbound) SMS service is currently free only for customers who use a balanced volume of our MT (outbound) SMS services, as reasonably determined by us. |
| " Interfering with a third party's use and enjoyment of our Services. |
| " Using the Services in any manner that may subject us or any third party to liability, damages or loss. |
| " Altering, damaging or destroying the records you are required to keep in accordance with the Terms of Use. |
| " Using the Services in any manner that violates any applicable third party policies or requirements (including, without limitation, using the Services in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other applicable industry standards). |
| " Using your account to engage in fraudulent activity with respect to third parties or otherwise bypass legitimate identification systems. |
| " Impersonating any person or entity without his, her or its consent. |
| " Where prohibited by applicable law, engaging in spamming, or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations such as, without limitation, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, Telephone Consumer Fraud & Abuse Prevention Act, Children's Online Privacy Protection Act, and the Do-Not-Call Implementation Act. |
| " Using the Services in violation of the Electronic Communications Privacy Act, the Regulation of Investigatory Powers Act, or any other analogous law or regulation applicable to your use of the Services. |
| " Using the Services in connection with any unsolicited, unwanted or harassing messages or other communications. |
| " Where prohibited by applicable law, using our long virtual numbers for marketing purposes. |
| " Offering or purporting to offer any Emergency Services. "Emergency Services" means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services. |
| " Using manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Services; linking to the Services without our express written consent; or harvesting or scraping any Content from the Services, including without limitation, harvesting or otherwise collecting information about others, including email addresses or phone numbers, from our website without their express consent |
| " Violating or facilitating the violation of any country, state, province, local or international law, rule, legal order, or regulation. |
| " Engaging in any activity that the United States Federal Communications Commission or any similar entity or authority in any other jurisdiction has restricted or regulated with regard to proper use of the public telephony network. |
| " Using the Services, or a component of the Services, in a manner not authorized by us. |
| " Reselling, sublicensing, renting or timesharing the Services or any portion of our Services (including, without limitation data received through the Number Insight or Verify Services) without our express, specific prior written consent in an agreement signed by our Chief Executive Officer. In any event, any permitted resale is conditioned upon your obtaining, maintaining, and providing to us upon request, reasonable Know Your Customer information in compliance with applicable law for each of your direct and indirect customers using the Services, and may not be extended to anonymous users. Without limiting the foregoing, you must maintain the following information for each of your users using the Services: name, verified telephone number, verified e-mail address, method of payment, payment information, and IP address. |
| " Using our long virtual numbers or voice numbers to receive messages for the purposes of identity verification, bulk messaging, automated messaging, messages using automated dialing, pre-recorded messaging, and the like. |
| " Forwarding from a virtual number to a dead endpoint (e.g. if you forward from a virtual number, you must make a reasonable attempt to receive or answer the message, as applicable). |
| " Using the Services in any manner that results in charges to Mobile Sparkles by third parties, such as originating access charges, dip charges, collect calls, calls made to NPA-976-XXX or 900-XXX-XXXX numbers, or any other number or service where the calling party is billed for the call by the calling party's provider on behalf of the terminating provider or its customer; or otherwise calling or sending messages to Premium Number ranges without our prior written consent in each instance. |
| " Artificially inflating traffic (e.g. generating traffic that has been artificially increased to boost the revenue of an entity or network without offering any real benefit to the originator of the call). |
| " Unless otherwise agreed in advance, send a substantial amount of voice traffic, as reasonably determined by Mobile Sparkles , only to specific regions or number ranges within a country in a manner that would cause Mobile Sparkles to incur material costs beyond those incurred by Mobile Sparkles when sending similar quantities of voice traffic equally spread across all regions and number ranges within such country; in the event of violation of this clause, for the avoidance of doubt, Mobile Sparkles reserves the right to immediately suspend the relevant portion of the Service to You. |
| " Bundling, aggregating or otherwise combining in any way any messages originating from any other telephone number, or engaging in group messaging; each number shall only be used for messages originating and terminating to such single, unique telephone number. |
| " Using the Services in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, or other devices or systems in which malfunction of the Services would result in foreseeable risk of injury or death or the operator of the device or system, or to others. |
| " Engaging in activities or, uploading, downloading, submitting, transmitting, distributing or facilitating the distribution of, any information that contains "inappropriate content" in connection with the Services. Inappropriate content includes, but is not limited to, content that: |
| o May be considered libelous, slanderous, defamatory, threatening, sexually explicit, vulgar, profane, obscene, offensive, abusive, malicious or otherwise harmful to any person or entity, constitutes or promotes "hate speech" or is otherwise discriminatory based on race, sex, creed, religion, nationality, disability, sexual orientation, language, or age. |
| o Is fraudulent, deceptive, inaccurate or misleading (including, without limitation, by creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin or contents of a message or other communication using your account). |
| o Contains or transmits viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs or similar destructive programming routines. |
| o Interferes with or disrupts networks connected to the Services or violates the regulations, policies or procedures of such networks. |
| o Promotes, markets or otherwise relates to illegal activities or terrorism. |
| o Infringes on, misappropriates, or violates any intellectual property rights or other rights of third parties, including but not limited to trademark, copyright, patent, trade secrets, rights of publicity, and rights of privacy. |
| o Constitutes or relates to "adult services" or content of an adult nature, including, without limitation, content that contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion. |
| o includes sensitive financial or identification information or documents. |
| o Uses or includes any Open Source Software in connection with the Services in any manner that requires that any portion of the Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. "Open Source Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU's General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License. |
| If you or others using your account violate (or if we have reason to believe that you have violated or have encouraged others to violate) this Acceptable Use Policy, in addition to our available rights and remedies described in the Terms of Use, we may investigate the incidents that we believe are contrary to this Acceptable Use Policy and provide requested information to affected third parties. Our failure to enforce this policy does not amount to a waiver of our rights hereunder. |
| General Service |
| Terms and Conditions |
| These Terms and Conditions ("Terms" or "Agreement") represent a binding agreement between MOBILE SPARKLES and You. It is important that You understand Your responsibilities and the limitations to the services which You choose to use. Our services are diverse and as a result additional service specific terms may apply. If this is the case, these service specific terms shall become part of Our agreement. |
| Please use Our services responsibly. By using Our website or any of Our services, You agree to Our Terms. Take note that these Terms change from time to time. If You have used Our services before, You cannot assume that the Terms are still the same. You should review them on a regular basis. |
| 1. Introduction |
| a) You wish to use MOBILE SPARKLES services (meaning services as provided under these Terms; hereinafter "Service," or "Free Service," collectively the "Services") as either a paying customer ("Customer") and/or Our Free Service as a non-paying customer ("Non-Paying Customer"). By applying for the services using Our online registration form You are using Our services as a Non-Paying Customer according to the Clause 3.b until decided otherwise on MOBILE SPARKLES's sole discretion. |
| b) MOBILE SPARKLES means MOBILE SPARKLES LTD, a company registered in Canada and whose registered office is situated at 3950 14th Ave, Suite #205, Markham, ON L3R 0A9, Canada (hereinafter "MOBILE SPARKLES"; "We"; Our"; "Us"). |
| c) You wish to use the Services and We are willing to make the Services available to You subject to and in accordance with these Terms |
| 2. Binding Effect |
| a) You are entering into a binding agreement. If You accept these Terms of use of Our Service on behalf of Your employer or another person, You confirm that You have the consent of Your employer or that person to act on their behalf. THESE TERMS APPLY TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON MOBILE SPARKLES'S WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility. |
| b) You are not eligible to accept these Terms or use Our Services if You are not of legal age to form a binding contract with Us or if You are barred by law to use Our services. |
| 3. The Service and the Free Service |
| a) The Service enables a Paying Customer to use Our mobile services as set out as part of Your online registration. |
| i) Any such billable unit under the Services shall be referred in these Terms and Conditions as a "Chargeable Event". |
| 1. The Free Service will enable Non-Paying Customers to: |
| 1. Use the Trial for one or more elements of the Service described in the above clause 3a; and/or |
| 2. Use any element of the Service described in the above clause 3a or any other service made available by Us to You free of charge from time to time at Our absolute discretion. |
| 2. Some or all elements of the Free Service may be accessed via a web application, an email gateway, a software tool and/or a web service more particularly described on our website at www.MobileSparkles.com |
| 4. Availability and Interruption of the Service |
| a) We will make the Services available to You as either a Customer and/or a Non-Paying Customer using reasonable skill and care. You do however acknowledge and agree that the availability of the Services, Your ability to access and/or use the Services and the conducting of any given Chargeable Event may depend upon factors beyond Our reasonable control, including (but not limited to): |
| i) Factors affecting the operation of the Services and/or preventing Chargeable Event from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator ("Network Operator"), network capacity, physical obstructions or atmospheric conditions; or |
| ii) Factors preventing end-users from receiving Chargeable Events such as, by way of example, the terms and conditions of an end-user's service provider. |
| 1. We cannot therefore guarantee: |
| 1. That the Services will be available to You at all times or free from faults or interruptions; |
| 2. The receipt by any intended recipient of any Chargeable Event sent using the Services (as applicable). |
| 2. We will not be in any way liable for any failure to make the Services available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control. We provide all services "as is" and "as available", and We hereby do not warrant, represent or guarantee, whether expressly or by implication, that any Services are free of errors or interruptions, always available, fit for any purpose, secure or do not infringe any third party rights. |
| 3. We may, at Our sole discretion, alter or improve the Services We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Services. |
| 4. It may be necessary from time to time for Us to suspend the Services that We provide to You for routine or emergency maintenance and/or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension. |
| 1. We may at Our sole discretion suspend Your access to the Services and/or cease to allow any Chargeable Events to be conducted by You at any time. We are entitled to terminate these Terms for any reason, in which case We will give You appropriate notice as soon as is reasonably possible. |
| 2. Should Your account utilized in the provision of MOBILE SPARKLES Service be inactive through a period of 6 (six) months it remains in MOBILE SPARKLES's discretion to suspend MOBILE SPARKLES Services to You. You can reactivate the account with a request to MOBILE SPARKLES sent 3 (three) working days prior to the required reactivation. |
| 5. Management of Your account |
| a) After the Free Service session is completed, You will have the option to request the full Service which will enable You to become a Paying Customer. |
| b) A selected member(s) of Our dedicated team of account managers will be allocated to You once You start using the Free Service under these Terms. |
| c) Terms and conditions of the Service will be detailed in written form. In the event of any discrepancy between the Service terms stipulated hereunder and subsequent terms, the latter shall prevail. |
| 6. Account, Passwords and Security |
| a) In order to provide our services, We may require certain information. You must ensure that the information is complete and accurate. We may suspend or terminate any service if You give information that is not complete and accurate. You warrant that all information You provide to Us is complete and accurate and You indemnify MOBILE SPARKLES against any liability that may arise as a result of Your failure to provide complete and accurate information. You must immediately notify Us if any of Your information changes. |
| b) Third Party Analytics. We may engage the services of a third party analytics company to analyse the activities of visitors to this website. They are authorised to make use of cookies and other tracking technologies enable them to have access to Personal Information of visitors to this website. We will give You or ask You to choose a user name or customer ID and password for each account. We may change, cancel or suspend Your password which You will be notified about. |
| c) Security. You: |
| i) must keep Your username, customer ID and password confidential; |
| ii) must not circumvent, or attempt to circumvent, Our user authentication systems; |
| iii) must tell Us immediately if there is any unauthorized use of Your account or any other breach of security; |
| iv) are entirely responsible for all payments and any activities that occur on Your account; |
| v) are liable for any damage, loss or costs that we or any third party may sustain as a result of any of your actions, or any actions of a third party using Your password, account name or account information; and |
| vi) must indemnify Us against any claim from any use of Your password, account name or account information by a third party or as a result of Your violation of this section. |
| 7. Confidentiality and Data Protection |
| a) You will at all times keep confidential all information acquired as a consequence of using Our Services, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by Your professional advisors for the performance of their professional services. |
| b) Each party will comply with all applicable data collection regulations in the processing of any personal data, including the mobile telephone numbers of Your end-user to whom Chargeable Events will be sent as a consequence of making the Services available to You (such personal data referred hereto collectively as "End-User Data"), under or in connection with the Agreement. Please see Our full privacy policy is set out on our website at www.Mobile Sparkles.com. |
| c) We will treat Your End-User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purposes of making the Services available to You and providing any technical support required. We will make no further use of Your End-User Data without your specific authorization. |
| 8. Support services |
| a) Unless We agree otherwise in writing, We will provide on-line technical support in respect of the Service and/or Free Service available to You 24/7 at the following e-mail address: SMSCsupport@Mobile Sparkles.com. We may also provide access to support via Skype and online live chat. |
| 9. Customer Charges and Payment |
| a) The provisions of this clause apply to Paying Customers only. |
| b) You agree to pay all Charges due to Us in respect of making the Service available to You and Your access to and use of the Service ("Customer Charges") by the prepayment method and in accordance with the terms as set hereof. |
| c) You agree to pre-purchase Chargeable Event credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding number of Chargeable Events credits for that period. Each Chargeable Event that You conduct using the Service will therefore reduce the value of the Chargeable Event credits available to You by 1 corresponding unit charge (subject to any variation thereof and as agreed with Your account manager). |
| d) Any Chargeable Event credits purchased by You are only valid for the period in respect of which they have been allocated, any additional expenditure of Chargeable Events, over Your allocation limit, in such period, shall not be possible. However, You will still be allowed to purchase new Chargeable Event credits and expand your allocation for the given period at any time. |
| e) You shall be solely responsible, by seeking adequate Chargeable Event credit allocation(s) and checking Your remaining available Chargeable Event credit level on Our website at www.MobileSparkles.com, for ensuring that You have enough Chargeable Event credits to meet Your requirements from time to time and We shall not be in any way responsible or liable in the event that You have insufficient Chargeable Event credits to meet Your requirements, and/or have exceeded Your Chargeable Event credit allocation(s), for any period. |
| f) For the avoidance of doubt, a Charge will be incurred for every Chargeable Event conducted by You regardless of whether it is successfully delivered. |
| g) If You do not pay any Customer Charges in accordance with the applicable payment terms, We reserve the right to, in Our sole discretion, suspend Your access to the Service and/or cease to allow any Chargeable Event to be conducted by You until further payment is received by Us which fully covers any unpaid Charges. |
| h) You are responsible for the payment of all bank and finance charges. Please ensure that the amount received on Our bank account, after deductions, corresponds to the full amount you owe Us. |
| i) You will not be able to receive any refund for the payment made ("No refund, exchange only"). The latter shall not prevent any refund to be made according to the applicable customer protection laws. |
| 10. Marketing |
| a) Either party may make use of the other party's name and visual identity for publicity and marketing purposes, without prior consent. Should this be unacceptable to either party, the withdrawal of consent must be communicated in writing. Without limitation to the foregoing, no press release and/or any blog entry may be made by either party regarding this Agreement, without the prior consent of the other party. |
| 11. Rules of Use |
| a) You warrant that You will not: |
| i) Use the Services or permit the Services to be used to send Chargeable Events to any end-user for marketing purposes without that end-user's explicit request for, or prior consent, to receiving them. If you are sending any Chargeable Event for commercial purposes to any of Your end-users, You must abide by the telephone marketing practices of the end-users' jurisdiction, including but not limited to, obtaining prior express written consent from those end-users, and give all end-users the right to opt out of receiving any further Chargeable Events sent by You for commercial purposes (and You shall promptly process any end-user's election to opt out); |
| ii) Use the Services or permit the Services to be used to convey Chargeable Events to any end-user, with a frequency and in numbers which are excessive in Our reasonable opinion; |
| iii) Use the Services or permit the Services to be used for any improper, fraudulent, immoral or unlawful purpose; |
| iv) Use the Services or permit the Services to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature; |
| v) Use the Services or permit the Services to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or |
| vi) Use the Services or permit the Services to be used in a manner that may injure or damage any person or property or cause the quality of the Services to be impaired. |
| b) You will at all times during the continuation of the Agreement: |
| (a) Send only Chargeable Events that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offense in view of the generally prevailing standards of decency and propriety from time to time; |
| (b) Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Services; |
| (c) Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and |
| (d) Not act in any manner likely to bring Us, the Service, the Free Service or any Network Operator into disrepute. |
| c) You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Services that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete. |
| d) You will not state or imply any approval by Us of any particular Chargeable Event that You send using the Services or refer to Us in any way without Our prior written approval. |
| e) Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service and/or Free Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements. |
| f) We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any Chargeable Event. |
| g) You warrant that You are the sole owner or licensor of all rights in Your End-User Data or You have obtained all necessary rights, licenses and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement. |
| 12. Disclaimers, Limitations of Liability and Indemnification |
| a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOBILE SPARKLES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER SRVICES OBTAINED THROUGH THE SITE; (iii) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR VERIFIED PROFILE; AND (iv) ANY OTHER MATTER RELATING TO THE WEBSITE AND/OR THE SERVICES OFFERED ON THE WEBSITE. |
| b) THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE MOBILE SPARKLES ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. |
| c) You agree to indemnify and hold MOBILE SPARKLES, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys' fees), made against MOBILE SPARKLES by any third party due to, arising out of or in connection with your use of the website and/or the Services. |
| d) We will not be in any way liable for the content of any Chargeable Events sent or transmitted using the Service and the full responsibility for their content shall rest on you. You must observe all relevant legislation and regulations applicable in your jurisdiction and in the jurisdiction of all persons with whom you communicate directly when using the Service. By using the Service you also agree to be bound by the Rules of Use. |
| e) Subject to any express provision to the contrary in these Terms, We will not in any circumstances be liable to You (as either a Customer or a Non-Paying Customer) in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable. |
| f) Each party acknowledges that neither You (as either a Customer or a Non-Paying Customer), nor We, have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Terms and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law. |
| g) We shall at all times in respect of the subject matter of these Terms comply with all applicable laws, regulations and rules having equivalent effect. |
| h) You shall be responsible for explaining and answering to any complaints that We receive from any relevant regulatory body resulting from your use of the Service and/or Free Service. We will forward any complaints to you as soon as it is reasonably possible. You must follow the applicable complaint procedures and respond to each complaint within the timeframes specified by the relevant regulatory body and must forward a copy of your response to Us immediately. You will be liable for any fines and/or penalties imposed by any regulatory body against You or Us or any of our associated companies, due to Your contravention of these Terms. |
| 13. Term and Termination |
| a) Unless otherwise agreed with Your account manager, and subject to earlier termination in accordance with these Terms and Conditions, the Term is, for an initial minimum, a 12-month period (the "Initial Term"). The Initial Term will start on the Start Date (the day when you start using the Service or the Free Service) and expire on the End Date (the day corresponding the date in the month in which the initial service term expires). Upon expiration of the Initial Term, the Agreement will continue automatically unless and until either party gives the other 30 days' written notice or either You or We otherwise terminate the Agreement in accordance with these Terms and Conditions. |
| b) If at any time You wish to terminate the Agreement, You must either: |
| i) Give Us written notice to that effect within a 7-working day period from and including the Start Date, in order for such notice to take effect immediately; or |
| ii) Give Us no less than 30 days' written notice, such notice will take effect no sooner than the End Date (subject to any variation thereof). If You wish to terminate the Agreement with effect from any date preceding such End Date and are unable to do so for cause or any other reason under these Terms and Conditions, if you are a Customer under the Agreement then You must pay Us the Customer Charges due for each month (or part thereof) remaining of the minimum 12-month period post-termination. Such Customer Charges will be calculated on the basis of the monthly Customer Charges as set out in the Signature Page (as varied if applicable), and any prepayment of Customer Charges that You have made to Us will not be credited or refunded ("No refund, exchange only"). The latter shall not prevent any refund to be made according to the applicable customer protection laws. |
| c) Either party may also terminate this Agreement with immediate effect by notice to the other party if: |
| i) The other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading; |
| ii) The other party commits a material breach of the Agreement and (where such breach is capable of remedy) fails to remedy the breach within 14 days of a written notice from the party not in breach requiring its remedy; or |
| iii) Any license required for Us to operate the Services is revoked, terminated or modified or, in the case of new license requirements being imposed, the applicable license: |
| (1) Is not granted to Us; or |
| (2) Is granted to Us but in such a way as to prevent Us from continuing to make the Services available or a Network Operator from enabling Us to make the Services available. |
| d) We may terminate the Agreement immediately upon notice in the event that any relevant legislation or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Services available. |
| e) If you are using the Free Service under this Agreement You acknowledge that We reserve the right to, at Our absolute discretion, stop providing the Free Service to You on either a temporary or a permanent basis for any reason whatsoever without any prior notice |
| f) Termination of the Agreement for any reason does not affect any rights that have accrued to either party under the Agreement up to the date of its termination and those terms and conditions of the Agreement that are by their nature capable of surviving termination will continue in full force and effect following such termination. |
| g) On termination of the Agreement: |
| i) You will immediately cease to use the Services; and |
| ii) All amounts then owed to Us, under or in connection with the Agreement, will become immediately due and payable. |
| iii) You will forfeit any unused credit on your account, except for payments received by us within seven (7) days prior to termination. |
| iv) All licenses and rights granted under these Terms will terminate immediately. |
| 14. Force Majeure |
| a) Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and/or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion. |
| 15. Assignment |
| a) Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party's prior written consent (not to be unreasonably withheld or delayed), provided that We shall be entitled without Your prior written consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any affiliated company. |
| 16. Intellectual Property |
| a) All content, trademarks and data on our website, including software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to Us, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to You in these Terms, all other intellectual property rights on this website are expressly reserved. |
| b) We may grant You an individual, personal, non-exclusive and non-transferable license ("the License") to use our proprietary software or application service, in object code form only, and only in accordance with the applicable Service Specific terms and other documentation, if any, and only in conjunction with the relevant services. You may not reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of our software; modify, translate, or create derivative works based on the software or application; copy, rent, lease, distribute, assign, or otherwise transfer rights to the software or application; or remove any proprietary notices or labels with regard to our services. We retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights in it. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services we provide you. |
| c) These Licenses terminate when Our contract with you ends and you must destroy and stop using all of our software and applications in your possession. The software is provided and applications are offered "as is" and subject to the service warranty disclaimers and limitations of liability found elsewhere in these Terms. It is your responsibility to test the services before entering into this contract. |
| d) Content from Our website may not be used or exploited for any commercial and non-private purposes without Our prior written consent. |
| 17. Severability |
| a) If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. |
| 18. Governing Law & Dispute Resolution |
| a) These Terms shall be governed by and construed in accordance with laws of Canada and the parties hereto submit to the non-exclusive jurisdiction of the Toronto, Ontario, Canada courts for the purpose of enforcing any claim arising hereunder |
| b) Any disputes shall first be taken to Arbitration as per the rules of the Canadian Arbitration Association. Both parties agree to be bound by the decision of the Arbitors. Each party shall be responsible for its own costs during this process. If there is still a dispute, the parties shall have the right of appeal to the relevant courts of Canada. |
| 19. Summary Terms and Conditions: |
| a) You confirm that You hold the account corresponding to the mobile phone number You have entered, or that You have the account holder's permission to use this service. By entering your phone number, you acknowledge that you agree to these Terms of service and explicitly consent to receiving messages until you email legal@mobilesparkles.com or call your account manager to remove you from such service. |