TERMS AND CONDITIONS FOR KIVALO SMS
In these Terms of Service (hereafter “Agreement”
or “Terms”), “we,” “us,” “our” or “Kivalo” will
refer to Kivalo Solutions. The terms “you,” “your” and
“Customer” will refer to you. To be eligible to register for a
customer account to use the Services, you must review and accept these Terms by
clicking on the “I Accept” checkbox or other mechanism provided. If
you are registering for a customer account to use the Services on behalf of an
organization, then you are agreeing to these Terms for that organization and
promising to Kivalo Solutions that you have the authority to bind that
organization to these Terms (and, in which case, the terms “you” and
“your” or “Customer” will refer to that organization). The
exception to this is if that organization has a separate written agreement with
Kivalo Solutions covering the use of the Services, in which case that agreement
will govern such use.
When we refer to the “Services” in these Terms, we
mean to include all products and services that Kivalo Solutions offers.
Your use of our services constitutes your agreement to all
such Terms. Please read these terms carefully and keep a copy of them for your
reference.
Eligibility
Our Services are intended to be used in
business-to-business, consumer-to-consumer and business-to-consumer
communications. No person under the age of eighteen (18) years shall have the
right to use our Services. By using Our Services, you represent and warrant
that You are at least eighteen (18) years of age and that your use of the
Services does not abuse our system or violate the Agreement. Your uploads may
be deleted, and your subscription may be terminated without notice if we have
reason to believe that you are under eighteen (18) years of age or abuse or
have the intention to abuse our system or violate the Agreement or any law.
Service Pricing
To the extent the Services are made available for a fee, you
agree to pay all applicable fees. Your continued use of the Services after a
price change becomes effective constitutes your agreement to pay the changed
amount. All fees payable by you are exclusive of applicable taxes and duties,
including, without limitation, VAT and applicable sales tax.
We may specify the manner in which you will pay any fees,
any penalties or charges, fines, that Kivalo Solutions may have been charged by
a carrier or any other government/regulatory agencies. All payments must be
made in advance unless otherwise agreed in a written agreement signed by
authorized representatives of the parties. You warrant that you are authorized
to use any credit/debit card or payment account for the payment for the use of
our services.
Your Account
If you use our Services, you are responsible for maintaining
the confidentiality of your account and password and for restricting access to
your computer, and you agree to accept responsibility for all activities that
occur under your account or password. You may not assign or otherwise transfer
your account to any other person or entity. You acknowledge that Kivalo
Solutions is not responsible for third party access to your account that
results from theft or misappropriation of your account. Kivalo Solutions and
its associates reserve the right to refuse or cancel service, terminate
accounts, or remove or edit content in our sole discretion.
Refund of payment
All purchases are final, and all payments made or accrued
are non-refundable. Also, if your account is terminated due to your breach of
the Agreement, no payment will be refunded.
No Unlawful or Prohibited Use/Intellectual Property
You agree to use our services only for lawful purposes and
that you are responsible for your use of communications and content you share
via the Kivalo Solutions platform. You agree not to use the Services to offer
any services for any unlawful purposes. You agree not to post on or transmit
through our services any unlawful, infringing, threatening, harassing,
defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise
objectionable material of any kind, including any material that encourages criminal
conduct or conduct that would give rise to civil liability, infringes others’
intellectual property rights or otherwise violates any applicable local,
regional, national or international law. You agree not to use these Services in
any manner that interferes with its normal operation or with any other user’s
use and enjoyment of the Services.
All content included as part of the Service, such as text,
graphics, logos, images, as well as the compilation thereof, and any software
used on the site, is the property of Kivalo Solutions or its suppliers and
protected by copyright and other laws that protect intellectual property and
proprietary rights. You agree to observe and abide by all copyright and other
proprietary notices, legends or other restrictions contained in any such
content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer,
participate in the transfer or sale, create derivative works, or in any way
exploit any of the content, in whole or in part of our services. Kivalo
Solutioins content is not for resale. Your use of our services does not entitle
you to make any unauthorized use of any protected content, and in particular,
you will not delete or alter any proprietary rights or attribution notices in
any content. You will use protected content solely for your personal use and
will make no other use of the content without the express written permission of
Kivalo Solutions and the copyright owner. You agree that you do not acquire any
ownership rights in any protected content. We do not grant you any licenses,
express or implied, to the intellectual property of Kivalo Solutions or our
licensors except as expressly authorized by these Terms.
Additionally, the following list gives examples of illegal,
abusive, interfering or otherwise unacceptable or inappropriate behaviour while
using our services.
Attempting to bypass or break any security mechanism on any
of the Services or using the Services in any other manner that poses a security
or service risk to Kivalo Solutions, to any user of our Services, or to any of
our or their respective customers.
Testing or reverse-engineering the Services in order to find
limitations, vulnerabilities or evade filtering capabilities.
Using the Services in any manner that may subject Kivalo
Solutions or any third party to liability, damages or danger.
Using the Services in any manner that violates any
applicable third party policies or requirements that Kivalo Solutions has
communicated to you.
Using the Services in any manner that violates the Mobile
Marketing Association guidelines and/or best practices, carrier guidelines, or
any other industry standards.
Engaging in fraud with respect to your account, including
using any caller or Sender ID functionality of the Services to misrepresent the
identity of a caller or organization.
Using your account to engage in fraudulent activity with
respect to third parties or otherwise using your account to bypass phone
identification systems such as those by classified advertising websites.
Using any of the Kivalo Solutions Properties or Marks other
than as expressly permitted.
Transmitting any material that may infringe the intellectual
property rights or other rights of third parties, including but not limited to
trademark, copyright or rights of publicity or otherwise violating, infringing,
or misappropriating the rights of any third party.
Using the Services in connection with any unsolicited or
harassing messages (commercial or otherwise) including but not limited to
unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes.
Using Kivalo Solutions SMS in a manner that is not designed
to enhance or augment the person-to-person nature of SMS communications.
Promoting or engaging in illegal activities.
Engaging in activities or transmitting through the Services
any information that may be libelous or defamatory or otherwise malicious or
harmful to any person or entity, or discriminatory based on race, sex,
religion, nationality, disability, sexual orientation, or age.
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 of a message or phone call using your account.
Using the Services, or a component of the Services, in a manner
not authorized by Kivalo Solutions.
Indemnification
You agree to indemnify, defend and hold harmless Kivalo
Solutions, its officers, directors, employees, agents and third parties, for
any losses, costs, liabilities and expenses (including reasonable attorney’s
fees) relating to or arising out of your use of or inability to use the
services, any user postings made by you, your violation of any terms of this
Agreement or your violation of any rights of a third party, or your violation
of any applicable laws, rules or regulations. Kivalo Solutions reserves the
right, at your cost, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you, in which event you will fully
cooperate with Kivalo Solutions in asserting any available defenses.
Class Action Waiver
Any arbitration under these Terms and Conditions will take
place on an individual basis; class arbitrations and
class/representative/collective actions are not permitted. THE PARTIES AGREE
THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS,
COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE
ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Kivalo
Solutions agree otherwise, the arbitrator may not consolidate more than one
person’s claims, and may not otherwise preside over any form of a
representative or class proceeding.
Liability Disclaimer
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED
IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL
ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. KIVALO
SOLUTIONS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE
AT ANY TIME.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL KIVALO SOLUTIONS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT,
INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES
WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR
PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF
THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE
PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE,
PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE
ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KIVALO SOLUTIONS OR ANY OF
ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME
STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE
TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
Termination/Access Restriction
Kivalo Solutions reserves the right, in its sole discretion,
to terminate your access to our services and the related services or any
portion thereof at any time, without notice. To the maximum extent permitted by
law, this agreement is governed by the laws of Ghana and you hereby consent to
the exclusive jurisdiction and venue of courts in Ghana in all disputes arising
out of or relating to the use of our services. Use of our services is
unauthorized in any jurisdiction that does not give effect to all provisions of
these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, or
agency relationship exists between you and Kivalo Solutions as a result of this
agreement or use of our services. Kivalo Solutions’s performance of this
agreement is subject to existing laws and legal process, and nothing contained
in this agreement is in derogation of Kivalo Solutions’s right to comply with
governmental, court and law enforcement requests or requirements relating to
your use of our services or information provided to or gathered by Kivalo
Solutions with respect to such use. If any part of this agreement is determined
to be invalid or unenforceable pursuant to applicable law including, but not
limited to, the warranty disclaimers and liability limitations set forth above,
then the invalid or unenforceable provision will be deemed superseded by a
valid, enforceable provision that most closely matches the intent of the
original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes
the entire agreement between the user and Kivalo Solutions with respect to our
services and it supersedes all prior or contemporaneous communications and
proposals, whether electronic, oral or written, between the user and Kivalo
Solutions with respect to our services. A printed version of this agreement and
of any notice given in electronic form shall be admissible in judicial or
administrative proceedings based upon or relating to this agreement to the same
extent and subject to the same conditions as other business documents and
records originally generated and maintained in printed form. It is the express
wish to the parties that this agreement and all related documents be written in
English.
Electronic Communications
Sending emails to Kivalo Solutions via [email protected] constitutes
electronic communications. You consent to receive electronic communications and
you agree that all agreements, notices, disclosures and other communications
that we provide to you electronically, via email and on the website, satisfy any
legal requirement that such communications be in writing.
Survival
Upon termination of these Terms, your payment obligations
will survive.
Changes to this Statement
We reserve the right to change any of the terms of the
Agreement by posting the revised Agreement on Our Website and/or by sending an
email to the last email address you have given us. The most current version of
the Terms will supersede all previous versions. Kivalo Solutions encourages you
to periodically review the Terms to stay informed of our updates.