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MXit Development Zone Terms & Conditions Welcome to the MXit Developer Zone. Kindly read these terms and conditions if you want to participate in the MXit Developer Zone. These terms & conditions apply from the moment you have registered with the MXit Development Zone, accessed the MXit Development Zone download any material from the MXit Developer Zone or upload any of your works, whichever happens first. If you don’t agree with these terms and conditions please do not access the MXit Developer Zone and do not use the MXit API, the MXit Tools or the guidelines provided on the site. 1. Definitions In these terms and conditions, unless the context indicates a contrary intention, the following words shall have the meanings given to them: a. “Affiliated Company” means in relation to MXit, a company which is a subsidiary or holding company of it, or a company which is a subsidiary of such holding company (holding company and subsidiary having the meanings ascribed to them in terms of the Companies Act 61 of 1973) and also means MXit International Limited and MXit Lifestyle Development Company (Pty) Ltd; b. “Developer MXit Application” means any application, add on, enhancement or other software developed by you using the MXit API, the MXit Tools and the guidelines published on the MXit Developer Zone; c. “Intellectual Property Rights” means all copyright, trade mark rights, patent and design rights, know-how and confidential information including methods, manuals, specifications, technical information and data relating to MXit’s services, the MXit Application, the MXit API, the MXit Tools and the content of the MXit Developer Zone; d. “MXit API” means the application programming interface that outlines the rules, requirements and specifications that will enable a Developer MXit Application to interface with MXit and in doing so will enable MXit Users to use MXit’s services; e. “MXit Application” means the software for the installation on mobile telephones or personal computers for the use by MXit Users to communicate with other MXit users or to login to the MXit Services; f. “MXit Tools” means the tools provided by MXit on the MXit Developer Zone; 2. Agreement a. Your use of the MXit Development Zone and your use of MXit APIs and the MXit Tools which are available on the MXit Developer Zone and the interface of your Developer MXit Application are subject to these terms and conditions, the MXit User terms and Conditions and any guidelines and documentation published by MXit on the MXit Developer Zone. b. In the event of a conflict between the provisions of this agreement on the one hand and the MXit User terms and conditions or the guidelines published by MXit on the MXit Developer Zone, then the provisions of this agreement will enjoy prevalence. 3. Granting of rights a. MXit grants you the right to do the following subject to the terms of this agreement: i. Access the MXit Developer Zone; ii. A free non-exclusive, non-transferable, revocable, personal licence to use the API’s and MXit Tools for purposes as allowed for in the MXit Developer Zone; iii. Create Developer MXit Applications, and; iv. View the MXit source codes posted on the MXit Developer Zone. b. MXit reserves the right to terminate this licence immediately upon notice and to request you to return and delete all MXit APIs, MXit Tools and all material in your possession that are subject to the Intellectual Property Rights. c. You grant MXit a free, global, non-exclusive, perpetual, royalty free, transferrable licence to any Developer MXit Applications, including the right to use your MXit Developer Applications for commercial purposes and to grant sub-licenses. 4. Interface a. MXit will allow MXit Users using your Developer MXit Application to login to their accounts with MXit and to use the MXit Services. b. MXit may without prior notice restrict the use of Developer MXit Applications if such restriction will improve the available or stability of MXit’s Services, or as MXit may deem appropriate in its sole discretion. c. MXit may give preferential treatment to MXit Users using the MXit Application. 5. Registration and Login a. When you register with the MXit Developer Zone you will select a user name and password. You must keep the user name and password secret, and MXit will assume every time someone has logged in that it is you. You are responsible for all activities taking place when someone is logged on using you user name and password. 6. Developer MXit Applications a. All Developer MXit Applications must conform to the specifications and guidelines published on the MXit Developer Zone. b. You agree to provide MXit with a copy of your Developer MXit Application together with any supporting documentation before you distribute it to MXit Users. c. You agree to display a obvious and clear reference to the MXit Terms and Conditions on your Developer MXit Application and will draw MXit Users’ attention to the fact that the MXit Terms and Conditions applies to their use of MXit’s Services while your terms and conditions will govern their use of your Developer MXit Application. d. You agree to display a reference to you own terms and conditions regulating the use of your Developer MXit Application. Such reference will be done in such a manner as to ensure the agreement between you and the user will be fully enforceable in both the countries where you and the user reside. The reference must include a link to the place where the user can view, download and save the terms and conditions for later reference. e. You agree that the intellectual property rights to any modifications or changes you make the MXit API or the MXit Tools will belong to MXit and MXit will be deemed to be the author of such modifications or changes. f. If your Developer MXit Application allows MXit Users to access and download content provided by any third party, you agree to place a notice in a visible place notifying the user that such content is not provided by MXit. g. Your Developer MXit Application may not contain any additional splash screens other than the ones provided for in the specifications and guidelines published on the MXit Developer Zone. h. Your Developer MXit Application may not intercept or communicate the MXit User’s password in any manner other than is allowed for in the MXit API, the MXit Tools and in the guidelines available on the MXit Developer Zone. i. You Developer MXit Application may not divert MXit User away from MXit’s services. j. You will maintain your Developer MXit Application and agree to release updates and patches as is necessary. k. If you use any third party proprietary code or any open source code in your Developer MXit Application, and provided you are entitled to do so, you will disclose such use in your license file and provide the necessary information to allow any person accessing the license file to consult such third party licenses. l. Your Developer MXit Application may not: (i) infringe, violate or misappropriate any third party's intellectual property rights; (ii) be misleading, deceptive or fraudulent. (iii) engage in spamming or other advertising or marketing activities that violate any applicable laws, regulations or generally-accepted advertising industry guidelines. (iv) in a fraudulent or otherwise illegal manner engaging in phishing or otherwise obtaining financial or other personal information of MXit Users; (v) contraven MXit’s content policy; (vi) request, collect, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any MXit Users, or to proxy authentication credentials for any MXit Users for the purposes of automating logins to their MXit accounts; (vii) impersonate any person, or obtain access to the MXit Services without authorization, and; (viii) enable you to personally identify any MXit User except with their express consent. 7. Distribution of Developer MXit Applications a. You may not charge any fee to anyone for distributing or using your Developer MXit Application. b. You may not distribute your Developer MXit Application in any manner that may mislead an MXit User into believing that the application has been created by MXit or that he or she obtains the application from MXit. c. You may not in any agreement relating to your Developer MXit Application purport to grant any rights, impose any obligations or pretend to have any authority that is inconsistent with this Agreement. d. You agree to provide customer support for your Developer MXit Application and you will give MXit an e-mail address where customer queries can be directed. e. You may not distribute, make available or attempt to sub-license the MXit API and the MXit Tools. f. When distributing your Developer MXit Application you must make sure that MXit’s patent-, trademark-, copyright- and other proprietary notices are displayed in accordance with the guidelines provided on the MXit Developer Zone. g. You may state that your Developer MXit Application has been developed in accordance with the provisions of the MXit Developer Zone. 8. Your obligations a. You agree to comply with all local, national and international laws and regulations that are in force and apply in the territory where you and the MXit User using your Developer MXit Application reside. b. You may not distribute, share or display any of MXit’s source codes, the MXit API or the MXit Tools or any extracts there from to any other person other than to fellow users of the MXit Development Zone provided that the communication with such fellow developers may only take place through the MXit Developer Zone. c. You will not sell, export, transfer, or otherwise dispose of your developer MXit Application to any country without obtaining the required prior authorization from the appropriate authorities. d. You may not interfere or attempt to interfere in any manner with the functionality or proper working of MXit’s Services or the MXit Developer Zone. e. Your attention is drawn to MXit’s new ideas policy, a copy of which is available on the MXit Developer Zone and you agree, without limiting the general nature of that policy, that nothing you place on the MXit Developer Zone will prevent MXit from developing, launching and distributing similar software, services or products. f. You will provide MXit with any information required by MXit in respect of yourself, your use of the MXit Developer Zone and your Developer MXit Application. 9. MXit’s rights a. If your Developer MXit Application in any way interferes with MXit’s business, MXit may, without derogation to any other similar right MXit may have in terms of this agreement, remove your MXit Developer Application from the MXit Developer Zone and, if applicable, prevent MXit User’s using your Developer MXit Application from logging on to MXit. MXit reserves the right to charge you a reasonable fee for using the APIs and the MXit Tools, for distributing your Developer’s MXit Application and for allowing users using your Developer’s MXit Application to connect to- and use the MXit services. Such fees will be published on the MXit Developer Zone and will apply equally to all developers. If you disagree with such fees you must cease using the APIs, MXit Tools and MXit’s confidential information, and cease distributing your Developer’s MXit Application. b. Nothing in this agreement entitles you to any part of MXit’s revenue even if the service to which the revenue relates has been supported by your Developer MXit Application. 10. Intellectual Property Rights a. The Intellectual Property Rights are either owned by MXit or licensed to MXit and include any applications or renewals of such rights, and are protected by intellectual property laws. The compilation of such intellectual property is also the exclusive property of MXit, and is likewise protected by South African and international copyright laws. The name "MXit" and the MXit logo are registered trademarks of MXit and its affiliated companies and may not be used in any manner without MXit’s permission. All other intellectual property rights not owned by MXit that appear on the MXit sites or MXit services are the property of their respective owners. b. You may use the Intellectual Property Rights only in terms of the rights explicitly granted in this agreement. All other MXit rights are reserved. c. You may not, without MXit’s prior written permission, use any of MXit’s other intellectual property or that of third parties for any purposes other than provided for in this agreement. d. The Intellectual Property Rights remain the exclusive property of MXit and nothing in these terms of use intends to transfer any intellectual property rights to you other than giving you the license as described in clause 3 above. e. You shall not display or distribute any other person’s intellectual property on your Developer MXit Application or on the MXit Developer Zone without first having received that person’s permission to do so. f. You own all intellectual property rights in the Developer MXit Applications are developed by yourself and you grant MXit a non-exclusive, worldwide, perpetual, irrevocable license to use, distribute and sub-license your Developer MXit Application. 11. Warranties You warrant that: a. Your Developer MXit Application will comply at all times with the provisions of this agreement; b. You have all the rights necessary to grant us the rights recorded in this agreement; c. Your Developer MXit Application does not infringe the intellectual property rights of any other person; d. If you are an individual acting on behalf of a company or legal entity that you have the authority to enter into this agreement; e. The content included in the Developer MXit Application does not violate MXit’s content policy; f. Your Developer MXit Application will not include any virus, worms, trojans, adware, spyware or other malicious code; g. Information given by you to MXit is true and correct, and h. You will adhere to this agreement. 12. Indemnity a. You agree to indemnify, defend and hold MXit, its parent companies, subsidiaries, affiliates, officers, directors, agents, licensors and any other partners and employees harmless from any and all claims, losses, expenses, damages, actions, demands, liabilities or costs, including but not limited to legal fees resulting from: i. A breach of any of the warranties made by you, and; ii. Any violation of any third party’s intellectual property rights by you. 13. Disclaimers a. MXit makes various disclaimers throughout this agreement. In addition to those MXit also disclaims the following: i. MXit does not warrant that the MXit services or the MXit Development Zone will always be able be available. This may be for different reasons, amongst others, because a user’s cellular telephone does not have reception or if a telecommunications provider on whom a user or MXit rely for the services, is unavailable. ii. You cannot rely on the MXit services to dispatch any emergency communications. iii. MXit does not warrant the quality, performance, fitness for purpose, non-infringement or merchantability of the MXit API, the MXit Tools and the guidelines on the MXit Developer Zone. 14. Liability a. You agree that MXit will not be liable for any loss or special, incidental, indirect or consequential damages of any kind resulting from your use of the MXit API, the MXit Tools, the guidelines or any content or representation made on the MXit Developer Zone. MXit will further not be liable to any third party who has obtained your Developer MXit Application from you. b. When a hyperlink on the MXit Development Zone refers to information that can be found elsewhere, then it is your obligation to study such information. MXit does not accept liability for the information or data contained on any third party website, even if MXit has included a hyperlink to such website. 15. Termination a. When these terms of use terminate, all the supplementary terms and guidelines will terminate at the same time. The licences granted in clause 3 will also terminate at the same time and you will immediately stop using the MXit API, the MXit Tools, the Intellectual Property Rights and the MXit Developer Zone. You will remove it all from your personal computer and/or other device on which it has been installed, and destroy all other copies your possession. b. The following clauses will survive the termination of these terms of use: clause 6 (intellectual property), clause 12 (indemnity), clause 13 (disclaimer) and clause 14 (liability). 16. Breach a. If you violate any of your obligations as described in this agreement or if your Developer MXit Application does not conform to the requirements of this agreement then MXit may, without limiting any other right, warranty or indemnification that may be granted to it under these terms of use, cancel these terms of use immediately and without prior notice to you, suspend your access to the services, suspend MXit Users using your Developer MXit Application access to the services, remove any content uploaded by you to the MXit Developer Zone, and/or ban you for such period as MXit may deem fit from the MXit Developer Zone. 17. General a. These terms of use shall be deemed to have been concluded in Stellenbosch, South Africa. b. You may not cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of these terms of use without the prior written approval of MXit. MXit on the other hand shall be entitled to cede, assign or otherwise transfer this agreement or its rights in terms of this agreement without your prior consent and without giving notice to you. c. You agree that for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from these terms of use that MXit may send such notices to your cellular telephone number as indicated on your user account on the MXit Developer Zone. d. MXit chooses Riesling House, Brandwacht Office Park, Trumali Road, Stellenbosch, 7600, South Africa as its domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from these terms of use. e. These terms of use constitute the whole agreement between you and MXit relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of these terms of use not incorporated in these terms of use shall be binding on any of the parties. f. Failure or delay on the part of any party hereto in exercising any right, power or privilege hereunder will constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. g. Each clause of these terms of use is separate and severable from the other clauses and if any clause, or part thereof, of these terms of use is retrospectively found to be defective or unenforceable then that provision only shall be deemed to be modified to the extent and in the manner necessary to render it consistent with the enactment rendering it unlawful, or if such modification is impossible to be pro non scripto. The remaining clauses shall continue to be of full force and effect. h. The law of the Republic of South Africa will apply to these terms of use and to all subsequent amendments and variations thereof, including the interpretation, validity, performance, consequences of breach, remedies, assessment of damages, extinguishing of obligations and limitations of actions. The applicable law will apply to all disputes arising out of these terms of use or in relation to these terms of use. i. MXit shall not be liable for any costs you incur to obtain professional advice on these terms of use. ------------ Download T&C
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