The terms "you," "your," and "yours" refer to the customer. The terms "Company," "we," "us," and "our" refer to MODI$club. ("MODI$CLUB"). These General Terms and Conditions are governed by our Terms of Service. Our Terms of Service take precedence over any conflicting General Terms and Conditions provision. BY USING MODI$CLUB'S SERVICES AND THE MODI$CLUB WEBSITE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THESE General Terms and Conditions. IF YOU DO NOT AGREE TO THESE General Terms and Conditions PLEASE DO NOT USE THE WEBSITE AND/OR SERVICES.
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.
The Service enables a Paying Customer to use Our mobile messaging services as set out as part of Your online registration.
Any such message shall be referred to in these Terms and Conditions as a "Chargeable Event".
The Free Service will enable Non-Paying Customers to:
Some or all elements of the Free Service may be accessed via a web application, an API, a software tool and/or a web service more particularly described on our website at www.modisclub.com
While MODI$club strives to ensure that the information contained on this Website is accurate and reliable, MODI$club makes no warranties as to the accuracy, correctness or completeness of any such information and assumes no liability or responsibility for any omissions or errors in the content of this Website. MODI$club reserves the right to revise the information contained on this Website at any time, in its sole discretion without any obligation to notify past, current or prospective visitors.
You may download certain content that appears on this Website for your personal use, provided you do not remove or modify any copyright, trademark or other proprietary notices. You expressly agree that no right, title or interest in any downloaded materials is transferred to you as a result of such downloading or copying. There are inherent dangers in downloading materials and information from the Internet, and MODI$club cautions you to make sure that you completely understand the potential risks before downloading any such content. You are solely responsible for adequate protection and backup of the data and equipment used in connection with any information downloaded from this Website, and MODI$club will not be liable for any damages that you may suffer as a result of such download.
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):
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
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.
We cannot therefore guarantee:
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.
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.
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.
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.
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.
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.
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 MODI$CLUB 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.
We will give You or ask You to choose a username and password for each account. We may change, cancel or suspend Your password which You will be notified about.
We reserve the right to change these General Terms and Conditions from time to time without notice by posting the changes to MODI$club's website. When we do, we will also revise the "last update" date of these General Terms and Conditions.
In order to ensure your compliance with these Terms and to ensure that MODI$club complies with national and international laws, we may, from time to time, randomly check the messages and broadcasts that you send. The importance of security for all personally-identifiable information associated with visitors to the Website–as well as MODI$club customer information, such as cell phone numbers, texts, messages, credit card information, and addresses, and other account data–is of utmost concern to MODI$club, and we have implemented, and periodically review, certain physical, electronic, and managerial procedures to help prevent unauthorized access and maintain data security. Your payment and personal information is always safe. Our Secure Sockets Layer (SSL) software is the industry standard and among the best software available today for secure commerce transactions. It encrypts all of your personal information, including credit card number, name, and address. Unfortunately, due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus we cannot guarantee that communications between you and MODI$club will be free from unauthorized access by third parties. Visitors of the Website and MODI$club customers use the Website at their own risk.
Your privacy is important to us and we provide this notice explaining our online information practices and the choices you can make about the collection and use of the personal information you submit at this Website.
If you are visiting the Website from outside the Canada, please be advised that your personal data will be processed by MODI$club in the Canada where data protection and privacy regulations may differ from similar regulations in other countries. By using the Website, you consent to any such transfer of information outside of your country if you are located outside of Canada. Additionally, by using the Website, you consent to MODI$club using your personal information to contact you electronically, in writing, or otherwise to provide notices relating to your use of the Website and to give you information about the products and services offered by MODI$club and its affiliates. If you would like to opt out of future promotional materials from us, you may indicate this preference by following the unsubscribe instructions at the end of such communications from us.
If your personally identifiable information changes, or if you no longer desire our service, you may correct, update, delete or deactivate it by making the change on your account information page or by emailing our Customer Support at [email protected]. We will respond to your request to access within 30 days.
We will retain your information for as long as your account is active or as needed to provide you services. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
The provisions of this clause apply to Paying Customers only.
You shall be solely responsible, by seeking adequate lease term of the SMS Number(s) (eg. long/short code), Chargeable Event credit allocation(s) and checking Your remaining available Chargeable Event credit level on Our website at www.modisclub.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.
For the avoidance of doubt, a Charge will be incurred every month if you lease our SMS Number(s) including long/short codes, and for every Chargeable Event conducted by You regardless of whether it is successfully delivered.
If You do not pay any Customer Charges in accordance with the applicable payment terms (as outlined on Our website at http://www.modisclub.com/sms_pricing.html, 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.
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.
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.
THE INFORMATION ON THIS SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
No advice or information, whether oral or written, obtained by a user from MODI$club, shall create any warranty not expressly made herein.
If you download or copy any material from this website, you do so at your sole discretion and risk and consequently you will be responsible for any damage to your computer system or loss of data that results from the download or copying of any material or software.
Some of MODI$club's Services require the use of third party services, products, or networks. MODI$club will make commercially reasonable efforts to communicate any policies, requirements, or guidelines of those third parties to You. You agree to follow those policies, requirements, or guidelines. ANY ACTUAL OR ALLEDGED VIOLATION OF A THIRD PARTY POLICY, REQUIREMENT, OR GUIDELINE BY YOU IS YOUR RESPONSIBILITY. MODI$CLUB MAKES NO WARRANTY OR REPRESENTATION THAT ITS WEBSITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE IF ANY VIOLATION OF A THIRD PARTY POLICY, REQUIREMENT, OR GUIDELINE BY YOU IS ALLEDGED BY A THIRD PARTY.
You warrant that You will not:
You will at all times during the continuation of the Agreement:
You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Services that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete.
You will not state or imply any approval by Us of any particular Chargeable Event that You send using the Services or refer to Us in any way without Our prior written approval.
Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service and/or Free Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.
We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any Chargeable Event.
You warrant that You are the sole owner or licensor of all rights in Your End-User Data or You have obtained all necessary rights, licenses and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement.
MODI$club does not promote, recommend or condone use of the MODI$club Service during certain activities, such as automobile driving, where there is a significant risk of accident. You agree not to use the MODI$club Service during such activities.
IN NO EVENT WILL MODI$CLUB BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER THEY MAY ARISE, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE: (i) USE OF THE INFORMATION CONTAINED ON THIS WEBSITE; (ii) USE OF SOFTWARE DOWNLOADED OR LINKED TO FROM THIS WEBSITE; OR (iii) FOR THE FAILURE TO PROVIDE SERVICES OR INFORMATION AVAILABLE FROM THIS WEBSITE, EVEN IF MODI$CLUB HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF THE WEBSITE, CONTENT OR SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST MODI$CLUB, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND SUPPLIERS FROM, FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.
You agree to defend, indemnify and hold MODI$club harmless from and against any and all third party claims, damages, costs and expenses, including reasonable attorney's fees, arising from or related to your use of this website.
Any links to third party sites are provided as a convenience to you, and such sites are neither owned nor operated by MODI$club. MODI$club has no control over these linked sites, is not responsible for the contents of these sites, makes no representations or warranties with respect to these linked sites, and shall not be liable for any damages or injury arising from the content of these linked sites. Your viewing and use of any third party sites is at your sole discretion and risk.
Unless otherwise noted, the graphic images, buttons and text contained in this website are the exclusive property of MODI$club and are Copyright of MODI$club. All rights reserved. Except for your personal use as permitted herein, these items may not be copied, displayed, transmitted or reproduced in any form without the express written permission of MODI$club.
In the event you elect to communicate to us suggestions for improvements to the Website or any of MODI$club's services or properties (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information you post or provide to MODI$club via comments, forums, emails and the like (collectively, "Communications") shall be considered the property of MODI$club. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
February 10, 2015.