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MSM Limited’s Terms of Use for Nimbuzz Platform and Nimbuzz Services

IMPORTANT – PLEASE READ CAREFULLY - THESE TERMS OF USE CONSTITUTE A VALID AND BINDING AGREEMENT BETWEEN AND YOU MSM LIMITED FOR THE USE OF THE NIMBUZZ SERVICES

 

Section 1 - Background

 

1.1 By clicking on the ACCEPT button or installing and using the Nimbuzz Services you are entering into a legally binding contract and agree to be bound by the terms and conditions of this Agreement. You hereby agree that this Agreement as updated from time to time covers all your use of the MSM Limited’s Nimbuzz Services, whether it is from this installation or from any other terminals where MSM Limited’s Nimbuzz Services have been installed, by you or by third parties.

1.2 This Agreement is made between you and MSM Limited; registered in the Republic of Mauritius, with its registered office C/o. Safyr Utilis Ltd, 7th Floor, Tower 1, NeXTeracom cybercity, Ebene Republic of Mauritius and Corporate office at Floor No.146, Burj Khalifa, Downtown Dubai, UAE the proprietor and exclusive owners of the NImbuzz Platform and all associated Nimbuzz Services; only and not with any of the Channels (defined below). The Nimbuzz Services, including customer support services, are not provided by the Channels but by MSM Limited, who are solely responsible for them subject to the terms of this Agreement.

1.3 You hereby agree to the use of electronic communications in order to enter into this Agreement and associated contracts, place orders and create other records and to the electronic delivery of notices, instructions, policies and records of transactions initiated or completed through MSM Limited’s Nimbuzz Services. You hereby waive any rights or requirements which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

1.4 In general, MSM Limited’s Nimbuzz Services are open to all users of all ages who are competent to contract and can accept this Agreement and the Nimbuzz Privacy Statement. If you reside or are located in a jurisdiction (i) which restricts the ability to enter into agreements such as this Agreement, according to age and you are under the relevant age limit, and/or (ii) where it is unlawful to offer or use software for voice or data communications; you may not enter into this Agreement and should not download, install or use MSM Limited’s Nimbuzz Services. You explicitly state that you have verified that your use of MSM Limited’s Services is permitted according to law in your jurisdiction

1.5 In particular, a few specific MSM Limited’s Nimbuzz Services such as certain chat rooms and certain chat themes may be suitable only for users who are over 17 years of age (e.g., dating and romance chat). Nimbuzz can/may check your age when you register for the Nimbuzz Services or use such services.

 

Section 2 - Definitions

 

In this Agreement, capitalised terms have the following definitions:

2.1 Agreement: these Terms of Use, as may be renewed, modified and/or amended from time to time.

2.2 Channel: any third party physical or virtual shop, store, kiosk, retailer, portal, hardware provider, channel partner or similar vendor and any service provider associated with them, through or from whom you download or access any of MSM Limited’s Nimbuzz Services.

2.3 Device: any device on which Nimbuzz Services are installed, accessed and/or used from time to time, including without limitation any type of computer, telephone, mobile phone, PDA, smartphone, tablet, modem, e-book reader, music player, camera or any other communications or networking device.

2.4 Documentation: any documentation provided by MSM Limited online on the Nimbuzz platform/site or by any other method, including any instructions or policies relating to the use of MSM Limited’s  Nimbuzz Services.

2.5 Emergency Calls: communications services that enable connection to any type of medical, law enforcement, fire, civil protection or any other kind of emergency service or operator and/or to provide them with details of the caller’s location.

2.6 IP Rights: any and all intellectual and/or industrial property rights, including but not limited to copyrights, designs, database rights, trademarks and patents, as well as know-how and trade secrets (including trade and product names, signs, logos, or banners), whether registered or unregistered, contained in or relating to the MSM Limited’s Nimbuzz Services, the Documentation or on the MSM Limited Nimbuzz Website.

2.7 Nimbuzz: The platform, application, services or operating system, owned by MSM Limited, a company established under the laws of Mauritius with its registered office C/o. Safyr Utilis Ltd, 7th Floor, Tower 1, NeXTeracom cybercity, Ebene Republic of Mauritius and its principal office at Floor No.146, Burj Khalifa, Dubai, UAE.     

2.8 Nimbuzz API: application program interface consisting of the set of routines utilized by MSM Limited’s Nimbuzz Services to provide the functionality for a given platform or operating system, the Nimbuzz API being included in or linked to the Nimbuzz Services.

2.9 Nimbuzz Paid Services: any services which MSM Limited’s Nimbuzz platforms or systems may offer against payment from time to time, including without limitation the ability to make calls or send messages, access content, play games etc. (see Section 8 below).

2.10 Nimbuzz Services: the facilities and products provided by MSM Limited under this Agreement including without limitation the software distributed by MSM Limited’s Nimbuzz for Internet and/or mobile communications, MSM Limited’s Nimbuzz Paid Services, the MSM Limited Nimbuzz API, UI and Documentation, as well as any future programming fixes, updates and upgrades.

2.11 Nimbuzz Staff: the officers, directors, employees, agents, consultants and advisors of MSM Limited or its related companies, affiliates.

2.12 Nimbuzz Website: all elements, content and ‘look and feel’ of all websites operated by or on behalf of MSM Limited from which Nimbuzz Services can be downloaded or accessed, including without limitation the URLs  www.nimbuzz.com and www.nimbuzzout.com, as added to or substituted from time to time.

2.13 Third Party Service: any product, service, store, website, software and/or other technology owned and controlled by third parties which may be incorporated into or accessible through MSM Limited’s Nimbuzz Services or into which the MSM Limited’s Nimbuzz Services may be incorporated.

2.14 UI: the user interface of any MSM Limited’s Nimbuzz Service.

2.15 User Account: the account with user ID and password chosen by you or assigned to you for purposes of installing, accessing or using MSM Limited’s Nimbuzz Services.

 

Section 3 - MSM Limited’s Nimbuzz Services’ Licence and Restrictions

 

3.1 Subject to the terms of this Agreement, MSM Limited hereby grants you a limited, personal, non-commercial, non-exclusive, non-transferable, non-licensable, non-sub-licensable, non-assignable, free of charge, licence to download, install, access and use MSM Limited’s Nimbuzz Services on one or more Devices for the sole purpose of using the communication applications provided by MSM Limited’s Nimbuzz Platforms or systems and any other applications that may be explicitly provided by MSM Limited, for personal use.

3.2 For the avoidance of doubt, you may personally use Nimbuzz Services for communication purposes within your work or profession, in accordance with the terms of this Agreement. However, you will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights or access to third parties with regard to the Nimbuzz Services or any part thereof.

3.3 You will not undertake, cause, permit or authorize the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, dis-assembling, scraping or hacking of any Nimbuzz Service or any part thereof.

3.4 The following shall apply to Third Party Services:

3.4.1 Any Third Party Service that is incorporated in the Nimbuzz Services is subject to the provisions of this Agreement;

3.4.2 Use of Third Party Services may in addition be subject to your signing up for an account with and accepting the terms and conditions of the relevant third party, including provisions relating to processing of personal data which may differ from MSM Limited’s Nimbuzz’ policies and for which MSM Limited is not responsible. You acknowledge and agree that you are not entering into a contractual relationship with MSM Limited or its affiliated related companies regarding such Third Party Services and your rights and obligations are exercisable exclusively between you and the applicable third party;

3.4.3 Certain MSM Limited’s Nimbuzz Services use the Google Places service provided by Google, Inc. When you use these services you are also bound by Google’s Terms of Service as set out at https://www.google.com/intl/en/policies/terms.

3.5 MSM Limited, in its sole discretion, reserves the right to add or delete features or functions, and/or to provide programming fixes, updates and upgrades, to the Nimbuzz Services. You agree that MSM Limited has no obligation to make available to you any particular version or element of the Nimbuzz Services and that they are subject to change, termination or suspension for any reason at any time, at MSM Limited’s discretion, including without limitation for maintenance, changes in applicable laws, requirements of the Channels, MSM Limited’s business decisions, breach though your User Account of any provision of this Agreement, or of the Documentation or other policies or instructions given from time to time, or for any other reason within or outside MSM Limited’s control. MSM Limited will not accept any liability in relation to any loss or damage whatsoever caused by the release and/or the absence of release of new versions of MSM Limited’s Nimbuzz Services and/or the suspension or termination of provision of or access to any part of MSM Limited’s Nimbuzz Services or this Agreement. You also agree that you may have to enter into a modified version of this Agreement, in order to download, install, access or use a newer version of MSM Limited’s Nimbuzz Services.

 

Section 4 - API Licence and Restrictions

 

4.1 Subject to the terms of this Agreement, MSM Limited hereby grants you a limited, personal, non-commercial, non-exclusive, non-Licensable, non-sub-licensable, non-assignable, free of charge licence to use the Nimbuzz API for the sole purpose of enabling your application to connect with MSM Limited’s Nimbuzz Services, provided that:

4.1.1 All such use of MSM Limited’s Nimbuzz API is carried out for legitimate purposes and by legitimate means and must in no way adversely affect the functionality or performance of the Nimbuzz Services;

4.1.2 You will not remove, overwrite, conceal or otherwise make the UI inaccessible for end users;

4.1.3 You will not use MSM Limited’s Nimbuzz API in order to create derivative works based on or competitive with MSM Limited’s Nimbuzz Services or the Nimbuzz API;

4.1.4 You will monitor MSM Limited’s Nimbuzz Website in order to ensure that you are aware of any changes in the applicable legal documentation. In the event you cannot agree to any changes in any applicable legal document, you will immediately cease any and all use of the Nimbuzz API and, where applicable, any and all use of the Nimbuzz Services; and

4.1.5 You agree that your use of Nimbuzz API will be entirely at your own risk.

4.2 MSM Limited retains all IP Rights in and to the Nimbuzz Services including the Nimbuzz API and any derivative works created there from by or for MSM Limited or its licensors. You retain the intellectual property rights you may have in the materials, products, applications or processes you create which connect to the Nimbuzz Services utilizing the Nimbuzz API. MSM Limited, its related companies, affiliates or any of their licensors, licensees, assigns or successors, shall have no liability for any and all damages, liabilities, causes of action, judgments or claims: (a) pertaining to any intellectual property you develop that is based on your own knowledge or expertise to connect with, interface with or relate to the Nimbuzz API; and (b) which otherwise may arise in connection with your use of, reliance on, or reference to the Nimbuzz API.

4.3 If you are interested in developing anything else/any useful interface tool other than permitted under this Agreement, please do contact MSM Limited to discuss a possible commercial arrangement for any development tool that you may like to commercialise. For the avoidance of doubt, any activity not expressly permitted under this Agreement always requires MSM Limited’s previous written consent.

Section 5 - IP Rights

 

5.1 You acknowledge that all IP Rights in MSM Limited’s Nimbuzz Services, Nimbuzz Website, Nimbuzz API, software, networks, systems, content (including advertising content) and all other material provided to or accessible by you in connection with MSM Limited’s Nimbuzz Services or MSM Limited’s Nimbuzz Website, are and shall remain the exclusive property of MSM Limited and/or its licensors and include materials protected under applicable IP Rights laws in various territories worldwide (whether registered or not). Nothing in this Agreement shall act as a transfer or assignment of any such IP Rights to you, or permit you to use such IP Rights except as provided by MSM Limited within the MSM Limited Nimbuzz Services. You will not take any action to challenge, jeopardize, limit or interfere with the IP Rights. All IP Rights in and to any third party content, products or services that is not contained within MSM Limited’s Nimbuzz Services, but that may be accessed through use of MSM Limited’s Nimbuzz Services, are the property of the respective owners.

5.2 You agree that you will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or MSM Limited’s Nimbuzz (or any other person’s) rights and ownership, in whatever form attached to, incorporated in or associated with MSM Limited’s Nimbuzz Services, Documentation or any other materials.

 

Section 6 - Use of MSM Limited’s Nimbuzz Services

 

6.1 The MSM Limited Nimbuzz Services are designed to enable you to communicate with other persons including other similar MSM Limited’s Nimbuzz Services users. Some categories of communications or services may be MSM Limited’s Nimbuzz Paid Services and require you to purchase credits in order to use them.

6.2 MSM Limited cannot guarantee that you will always be able to communicate with other persons, that all your communication will always be delivered to other users nor that such communication will be without disruptions, delays or communications-related errors by using the Nimbuzz Services.

6.3 You expressly acknowledge and agree that the MSM Limited’s Nimbuzz Services are not intended to support or carry Emergency Calls. For Emergency Calls, you acknowledge that MSM Limited’s Nimbuzz service is not a replacement for your primary telephone service and that it is your responsibility to obtain, separately from the Nimbuzz Services, traditional wireless or fixed line telephone service that supports such calls.

6.4 You will use MSM Limited’s Nimbuzz Services exclusively for lawful purposes. In particular but without limitation you may not (a) intercept, monitor, interfere with or modify any communication which is not intended for you, (b) interfere with, hack, disrupt or gain unauthorised access to any network, computer system, database, server or hardware of MSM Limited’s Nimbuzz or any other entity or person, (c) impersonate any other person or use their User Account or ID, (d) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to attack, distort, delete, damage, disassemble or otherwise interfere with the Nimbuzz Services or network, (e) send any unsolicited commercial communication not permitted by applicable laws, regulations or codes of practice (e.g., spam), (f) collect or harvest personal information from other users (e.g., phishing), (g) harass or threaten any person, (h) expose any person to material which is offensive, defamatory, harmful to minors, indecent, obscene, illegal, in breach of third party rights or otherwise objectionable, or (i) solicit any objectionable favours or use the Services to sell anything illegal or harmful or intended to cause injury to anyone or the public at large, or (j) undertake any activity that is in breach of the law, public order, or public morality using MSM Limited’s Nimbuzz Services.

6.5 MSM Limited reserves the right to edit, correct, take down, store and/or permanently delete any material posted by you in any user profile, chat forum, or other use of MSM Limited’s Nimbuzz Services that MSM Limited in its discretion deems to be in breach of the above rules or otherwise inappropriate for any reason, or as required by any public authority, and to cooperate with and when requested to do so retain and/or provide such material to any such authority. You understand that sending or posting content referred to in Section 6.4 may result in termination of this Agreement and/or your exclusion from some or all of MSM Limited’s Nimbuzz Services.

6.6 You must only use MSM Limited’s Nimbuzz Services in accordance with the terms of your agreement(s) with your internet service, mobile and fixed line communications provider as applicable. You must not use MSM Limited’s Nimbuzz Services if they are not permitted by such agreement(s).

6.7 You agree that MSM Limited may impose limits on the use of its Nimbuzz Services and/or terminate your use of MSM Limited’s Nimbuzz Services in order to ensure “fair use” and to protect its Nimbuzz Services and networks, in particular if it appears to MSM Limited that its Nimbuzz Services or networks are being resold or otherwise misused including through their use or access using any software or system not distributed or authorised by MSM Limited.

6.8 You acknowledge that the contents of any data or communication sent or received using MSM Limited’s Nimbuzz Services is exclusively the responsibility of the person from whom such communication or content originated. You will be solely liable if you send or receive content referred to in Section 6.4 and you accept the risk that such content might be sent to you. MSM Limited will not be liable for any type of communication made by means of MSM Limited’s Nimbuzz Services. You may report an infringement of this Agreement or inappropriate content, behaviour or use of MSM Limited’s Nimbuzz Services from or by any other user to support@nimbuzz.com although all decisions on any action to be taken shall be at MSM Limited’s sole discretion.

 

Section 7 - Utilization of your Device

 

7.1 You hereby acknowledge and agree that:

7.1.1 MSM Limited’s Nimbuzz Services may utilize the processor and bandwidth of any Device used to access or use them;

7.1.2 Use of MSM Limited’s Nimbuzz Services, in addition to the cost of any of its Nimbuzz Paid Services, may require you to contract, set up and pay for data and/or other communications services from your internet service, mobile or fixed line communications provider, including roaming charges if you are outside your home country. Please check the terms of your agreement with your communications provider before using MSM Limited’s Nimbuzz Services in that jurisdiction as you are solely responsible for all such costs and for selecting and paying for the appropriate Device, data, communications and internet access services and plans you wish to use with the Nimbuzz Services;

7.1.3 Within the Nimbuzz Services, MSM Limited or its third party providers may serve and deliver advertisements to and access, index and record responses made from your Device. Any contacts/contracts with advertisers are made at your own discretion and risk and may be subject to their applicable terms of service or sale and privacy policies which are not controlled by MSM Limited and may differ from MSM Limited’s policies.

7.2 You acknowledge that MSM Limited will use its commercially reasonable efforts to protect the privacy and proper functioning of your Device and of your communications, but that MSM Limited does not give any guarantees in this respect.

 

Section 8 - MSM Limited’ s Nimbuzz Paid Services

 

8.1 If you wish to use MSM Limited’s Nimbuzz Paid Services, you must agree to all the terms of this Section. All the other provisions of this Agreement also apply to MSM Limited’s Nimbuzz Paid Services.

8.2 Payments will be made exclusively in the manner(s) indicated by MSM Limited from time to time, including through service providers separate from MSM Limited. You need to agree to any specific terms presented at the moment of making a payment, including without limitation provisions relating to processing of personal data by that service provider which may differ from MSM Limited’s policies and for which MSM Limited is not responsible.

8.3 You are solely responsible for any charges incurred using your User Account and must keep your log-in details private and notify MSM Limited if you believe that another person has had unauthorized access to your User Account/ID. In particular, if you use any chatrooms or other MSM Limited Nimbuzz Services reserved for adult users you must keep your User Account Details private, in order to prevent access by underage users.

8.4 Please be aware that occasionally third party websites may pose as Nimbuzz sites and may request your User Account details. MSM Limited seeks to prevent the operation of such sites, but MSM Limited cannot be responsible for any consequences of interacting with any such site and recommends that you only log into your User Account via pages reached from www.nimbuzz.com.

8.5 If you have not already begun to use the applicable MSM Limited’s Nimbuzz Paid Services, then depending on the type of service you may be entitled to a full refund provided you contact MSM Limited to claim this within fourteen days of purchase. Otherwise, all purchases are final and no refunds are available for payments made for MSM Limited’s Nimbuzz Paid Services. In the event that you believe you have been charged in error, you must contact MSM Limited Nimbuzz support within 14 days of such charge. If you have not used your credit for 6 months then it will automatically expire and you will lose it. MSM Limited will try to send you a reminder before it expires. No refunds will be given for charges which are more than 14 days old. If your User Account expires or is terminated you will also lose any remaining credit in your User Account. Note that certain special promotions may be subject to shorter expiry dates within which you would need to use the relevant credit, so please read the applicable terms carefully at the time of purchase.

8.6 Charges for MSM Limited’s Nimbuzz Paid Services are subject to change. For NimbuzzOut the applicable rates are those in effect at the time of using the service. Please always check the up to date charges at http://www.nimbuzz.com/en/nimbuzzout/rates. Unless otherwise specified, rates do not include VAT, and if MSM Limited is required to charge VAT then it will do so at the applicable rate, which will be added to the cost of your purchase. Calls are normally charged in one-minute increments and will be rounded up to the nearest Euro cent or Dollar cent (or other applicable currency unit), except as set out on the current rates page from time to time.

8.7 If you encounter any problems related to payment, pricing or use of the applicable MSM Limited Nimbuzz Paid Services, please contact support@nimbuzz.com. Be aware that MSM Limited does not provide support in all languages and English is the language generally used.

8.8 If the law of your country or location prohibits you from using MSM Limited’s Nimbuzz Paid Services whether due to age restrictions, content laws or other legal restrictions, you must not use the MSM Limited Nimbuzz Paid Services and any payments that you make will not be refunded.

 

Section 9 - Term and Termination

 

9.1 This Agreement will be effective from the date on which you accept it by (i) clicking on the ACCEPT button as stated above, or (ii) your first use of MSM Limited’s Nimbuzz Services, and will remain effective until terminated by either MSM Limited or you as set out below.

9.2 Without limiting any other remedies, MSM Limited may without prior notice to you restrict, suspend or terminate any licences granted hereunder and/or your use of any version or element of MSM Limited’s Nimbuzz Services including its Nimbuzz Paid Services, block access to MSM Limited’s Nimbuzz Website and/or suspend or cancel your User Account and/or ID, with immediate effect, if MSM Limited reasonably believes you have failed to comply with any terms contained in this Agreement, the Documentation and/or MSM Limited’s other policies or instructions, you have infringed someone else’s rights (e.g. copyrights, other intellectual property, or privacy rights), or engaged in any fraudulent, immoral or illegal activity. MSM Limited reserves the right to cancel User Accounts that have been inactive for more than six months. If credits for MSM Limited’s Nimbuzz Paid Services have been purchased and remain unused you will lose these but MSM Limited will try to remind you before any such cancellation.

9.3 You may terminate this Agreement with immediate effect at any time provided that you meet all the conditions/obliagtions set out in Section 9.4 below.

9.4 Upon termination of this Agreement for any reason (a) all licences and rights to use MSM Limited’s Nimbuzz Services including its Nimbuzz API shall terminate, and (b) you will cease all use of MSM Limited’s Nimbuzz Services, and (c) you will remove MSM Limited’s Nimbuzz Services from all Devices, hard drives, networks and other storage media and destroy all copies in your possession or under your control, and (d) any unused prepaid credits for MSM Limited’s Nimbuzz Paid Services will be retained by MSM Limited and not repaid.

9.5 MSM LIMITED WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE CAUSED BY THE TERMINATION OF THIS AGREEMENT WHETHER OR NOT MSM LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.

 

Section 10 - Representations and Warranties; Indemnification of MSM Limited:

 

10.1 You represent and warrant that you (i) are authorized to enter into this Agreement and comply with its terms, and to use all MSM Limited’s Nimbuzz Services that you use, (ii) will only provide true, accurate, up to date and complete registration, contact and billing information, and (iii) will at all times comply with your obligations hereunder, as well as any and all applicable laws, regulations and policies.

10.2 You agree to indemnify, defend and hold MSM Limited, its related companies and MSM Limited’s Nimbuzz Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees, in connection with or arising out of the absence, failure or outage of MSM Limited’s Nimbuzz Services and/or your (a) breach of any term of this Agreement or any applicable law or regulation, or (b) breach of any rights of any third party, or (c) use or misuse of MSM Limited’s Nimbuzz Services, or (d) use and/or modification of the Nimbuzz API and/or any application created using MSM Limited’s Nimbuzz API, or (e) communications made by means of MSM Limited’s Nimbuzz Services.

10.3 You acknowledge that MSM Limited’s Nimbuzz Services may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to MSM Limited’s Nimbuzz Services as well as end-user, end-use and destination restrictions issued by national governments or international bodies.

 

Section 11 - Disclaimer of Warranties

 

11.1 THE MSM LIMITED’s NIMBUZZ SERVICES ARE PROVIDED “AS IS”. MSM LIMITED HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ITS NIMBUZZ SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR ANY PARTICULAR PURPOSE OR REQUIREMENT. MSM LIMITED DOES NOT REPRESENT OR WARRANT THAT ITS NIMBUZZ SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT MESSAGE, FILE OR PACKET LOSS, NOR DOES MSM LIMITED WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET OR ANY FIXED OR MOBILE COMMUNICATIONS NETWORK, OR ANY QUALITY, ACCURACY OR RELIABILITY OF COMMUNICATIONS MADE THROUGH MSM LIMITED’s NIMBUZZ SERVICES.

11.2 You agree that the entire risk arising out of the use or performance of MSM Limited’s Nimbuzz Services remains with you, to the maximum extent permitted by law.

11.3 To the extent that any jurisdiction does not permit any of the exclusions or limitations set out above, some of these exclusions or limitations may not apply to you and MSM Limited’s liability will in that case be limited as far as possible under applicable law.

 

Section 12 - Limitation of Liability

 

12.1 YOU AGREE THAT MSM LIMITED, ITS RELATED COMPANIES, ITS LICENSORS AND THE MSM LIMITED STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF OR INABILITY TO USE THE MSM LIMITED NIMBUZZ SERVICES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, INCLUDING FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFIT, CONTRACT, BUSINESS, GOODWILL OR DATA, COMPUTER FAILURE OR PECUNIARY LOSS), EVEN IF MSM LIMITED, ITS RELATED COMPANIES, AFFILIATES OR ITS STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING THOSE ARISING FROM OR RELATING TO THE USE OR INABILITY TO USE MSM LIMITED’s NIMBUZZ SERVICES TO MAKE EMERGENCY CALLS.

12.2 YOU ALSO AGREE THAT THE CHANNELS ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WHATSOEVER IN RELATION TO MSM LIMITED’s NIMBUZZ SERVICES INCLUDING WITHOUT LIMITATION IN RELATION TO THE SALE, DISTRIBUTION OR USE, PERFORMANCE OR NON-PERFORMANCE THEREOF, PRODUCT LIABILITY, THIRD PARTY INTELLECTUAL PROPERTY CLAIMS, NON-COMPLIANCE WITH ANY APPLICABLE WARRANTY, LAW OR REGULATION (INCLUDING CONSUMER PROTECTION AND SIMILAR LEGISLATION), AND ANY CONTENT INCLUDED THEREIN THAT THEY HAVE NOT PROVIDED.

12.3 YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH MSM LIMITED’s NIMBUZZ SERVICES IS TO DE-INSTALL AND CEASE USE OF SUCH MSM LIMITED NIMBUZZ SERVICES, SAVE IN RESPECT OF MSM LIMITED’s NIMBUZZ SERVICES PURCHASED FROM A CHANNEL, IN WHICH CASE IF SUCH MSM LIMITED NIMBUZZ SERVICE FAILS TO COMPLY WITH ANY APPLICABLE WARRANTY, YOU MAY BE ENTITLED TO CONTACT SUCH CHANNEL AND REQUEST A REFUND OF THE PURCHASE PRICE AS ITS EXCLUSIVE OBLIGATION IN ACCORDANCE WITH ITS APPLICABLE TERMS AND CONDITIONS.

12.4 MSM LIMITED DOES NOT ENDORSE OR WARRANT AND ACCEPTS NO LIABILITY FOR ANY CONTACT, CORRESPONDENCE, TRANSACTIONS OR LOSS AND DAMAGE THAT MAY ARISE BETWEEN YOU AND ANY THIRD PARTY THROUGH MSM LIMITED’s NIMBUZZ SERVICES OR ITS NIMBUZZ WEBSITE, WHETHER OR NOT SUCH THIRD PARTY ADVERTISES WITHIN MSM LIMITED’s NIMBUZZ SERVICES OR ITS NIMBUZZ WEBSITE. YOU ACKNOWLEDGE THAT PARTICULAR CARE IS REQUIRED - AND MSM LIMITED WILL HAVE NO LIABILITY FOR ANY ADVERTISEMENT, ANY INFORMATION TRANSMITTED OVER ITS NIMBUZZ SERVICES OR WEBSITE OR ANY DECISIONS MADE - IN CONNECTION WITH ANY FINANCIAL SERVICES OR PRODUCTS.

12.5 To the extent that any jurisdiction does not permit any of the exclusions or limitations set out above, some of these exclusions or limitations may not apply to you and MSM Limited’s liability will in that case be limited as far as possible under applicable law.

 

Section 13 - General Provisions

 

13.1 MSM Limited reserves the right to modify this Agreement at any time by notifying you by any reasonable means or by publishing the modified Agreement on the MSM Limited Nimbuzz Website. The modified Agreement shall become effective thirty days from such publication or notification, unless you expressly accept the modified Agreement earlier. Such express acceptance by you, or your continued use of any MSM Limited Nimbuzz Service after expiry of the notice period of thirty days, shall constitute your acceptance to be bound by the terms and conditions of the modified Agreement. You can access the latest version of this Agreement at http://www.nimbuzz.com /en/legal/end-user-license-agreement

13.2 MSM Limited’s privacy statement, available at http://www.nimbuzz.com/en/legal/privacy-statement, the Documentation, and all other applicable policies and instructions on MSM Limited’s Nimbuzz Website or contained within or applicable to the MSM Limited Nimbuzz Services form part of this Agreement.

13.3 Should any term or provision hereof be deemed to be invalid, void or unenforceable this shall not affect the other terms of this Agreement, which shall remain in full force and effect.

13.4 The failure or delay by MSM Limited to require performance of any provision hereof shall in no manner affect its right at a later time to enforce such provision, or act as a waiver, unless such waiver is in writing and signed by MSM Limited.

13.5 You cannot assign this Agreement or any rights or obligations hereunder. MSM Limited may assign this Agreement or any rights or obligations hereunder to any person, without prior notice.

13.6 You acknowledge that any relevant Channel and/or its subsidiaries are third party beneficiaries of these Terms of Use and where their rights are affected shall be entitled to enforce the same against you.

13.7 This Agreement shall be governed by and construed in accordance with the laws of England, without giving effect to any conflict of laws, but without depriving you of the benefit of any consumer protection rules that must be given to you in accordance with the terms of any international treaty.

13.8 Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of England.

 

Section 14 – Specific Provisions in relation to ORMMA Software in iPhone client

 

14.1 This section relates exclusively to software code provided by ORMMA and used within MSM Limited’s Nimbuzz iPhone Client (the “ORMMA Software”). All other elements of the MSM Limited Nimbuzz iPhone Client and all other Nimbuzz clients are not governed by this section but by the other applicable provisions of these Terms of Use.

14.2 The ORMMA Software is Copyright © 2011, The ORMMA.org project authors. All rights reserved.

14.3 Redistribution and use of the ORMMA Software in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

14.3.1 Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

14.3.2 Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

14.3.3 Neither the name of the ORMMA.org nor the names of its contributors may be used to endorse or promote products derived from the ORMMA Software without specific prior written permission.

14.4 THE ORMMA SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE ORMMA SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

Section 15 – Specific Provisions in relation to mOcean Software in Android Client

 

15.1 This section relates exclusively to software code and associated documentation files provided by Clement CN Tsang and used within MSM Limited’s Nimbuzz iPhone Client (the “Clement CN Tsang Software”). All other elements of the MSM Limited Nimbuzz iPhone client and all other MSM Limited Nimbuzz Clients are not governed by this section but by the other applicable provisions of these Terms of Use.

15.2 The Clement CN Tsang Software is Copyright © 2013, Clement CN Tsang.

15.3 Permission is hereby granted, free of charge, to any person obtaining a copy of the Clement CN Tsang Software, to deal in the Clement CN Tsang Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Clement CN Tsang Software, and to permit persons to whom the Clement CN Tsang Software is furnished to do so, subject to the following conditions:

15.3.1 The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Clement CN Tsang Software.

15.4 THE CLEMENT CN TSANG SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE CLEMENT CN TSANG SOFTWARE OR THE USE OR OTHER DEALINGS IN THE CLEMENT CN TSANG SOFTWARE.

 

Section 16 – Specific Provisions in relation to mOcean Software in Android Client

 

16.1 This section relates exclusively to software code provided by Mocean Mobile and used within MSM Limited’s Nimbuzz Android client (the “mOcean Software”). All other elements of the Nimbuzz Android client and all other Nimbuzz clients are not governed by this section but by the other applicable provisions of these Terms of Use.

16.2 The mOcean Software is Copyright © 2011-13, Mocean Mobile, Inc. All rights reserved.

16.3 Redistribution and use of the mOcean Software in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

16.3.1 Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

16.3.2 Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

16.3.3 Neither the name of Mocean Mobile, Inc. nor the names of its contributors may be used to endorse or promote products derived from the mOcean Software without specific prior written permission.

16.4 THE mOcean SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE mOcean SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

Section 17 – Refer a Friend

 

The promotion is automatically invalidated if a card that has been used in the system is used to credit the referred account under the ‘Refer a friend’ promotion.

 

Section 18 – Acceptance

 

YOU EXPRESSLY STATE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR INSTALLING OR USING ANY OF MSM LIMITED’s NIMBUZZ SERVICES, YOU EXPRESSLY CONSENT TO BE BOUND BY THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT.

© MSM Limited, all rights reserved. Last revised: 1st Oct, 2017.

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