General Conditions

The General Conditions determine that a contract has been signed between, on the one hand, MobileWeb NV (Verdunstraat n° 742, 1130 Brussels, Belgium, KBO n° BE-0472.759.588), further referred to as “MobileWeb”, and on the other hand, the «Customer» that asks MobileWeb to offer him mobile messaging and connectivity Services regarding:

• The sending or receiving of electronic messages (for example, SMS or MMS or IVR messages) to or from his members, clients, employees, prospects or other acquaintances via telecommunication networks. Such messages can either be free of charge for the end-user (“bulk messages”) or paying (“premium” or “premium rate” or “surcharged” or “reverse billed”);
• The processing of mobile payments via mobile telecommunication networks, using technologies such as MPAY (Belgacom/Proximus), WHA (Mobistar), Clearmode (KPN Belgium) or similar networks;
• The management of the sending of these electronic messages and the consulting of the statistics of these sendings ;
• The management of the data of the members, clients, employees, prospects or other acquaintances ;
• The purchase of credits and applications which facilitate the sending of SMS/MMS messages or the processing of mobile payments.

These General Conditions determine the conditions of this contract :

Article 1 : General

1.1 The use of MobileWeb and the purchase of Services of MobileWeb via the website www.mobileweb.be, via e-mail, via SMS or via order form, automatically assumes the approval of the conditions of this contract by the Customer.

1.2 For the online purchase of Services via the website www.mobileweb.be MobileWeb.be will only activate the Services on the account of the Client if the latter has paid the amount of the order.

1.3 If the Customer is a consumer who is buying Services online via the website www.mobileweb.be, then the Customer does not have the right to renounce the order.

Article 2 : General Rights and Obligations of MobileWeb

2.1 MobileWeb will provide access to the Services within the timelines foreseen in the purchase order. For online purchases, the access will only be provided upon receipt of payment.

2.2 MobileWeb will provide the Customer with all necessary information, technical and network specifications to enable the Services.

2.3 MobileWeb warrants that the Services will be provided free from defects in performance, will conform to the Standard Service Level Agreement and will be fit and sufficient for the purposes expressed in, or reasonably inferred from this Agreement.

2.4 Any information and mobile phone number included in the Customer’s usage of the Services remains ownership of the Customer and cannot be used, under the terms of this agreement, for any other objective by MobileWeb.

2.5 MobileWeb shall not, in any case, modify or amend the contents of the messages transmitted on behalf of the Customer, without any prejudice to the application of article 8 of the present general conditions.

2.6 MobileWeb reserves the right to extend the services, provided to the Customer. The Customer will be informed about this via the website www.mobileweb.be, by e-mail, by SMS or by post.

2.7 MobileWeb reserves the right to modify the General Conditions. The Customer will be informed about this via the website www.mobileweb.be, by e-mail, by SMS or by post.

2.8 MobileWeb reserves the right to modify the tariffs that are applicable on the website www.mobileweb.be. The Customer will be informed about this via the website www.mobileweb.be, by e-mail, by SMS or by post.

Article 3 : General Rights and Obligations of Customer

3.1 Customer promises to provide all information required by the mobile operators and legal authorities to and cooperate with MobileWeb in a timely way as to ensure the proper implementation, configuration or installation of the Services. The information required includes amongst other a description of the application and services, the legal identity of the company operating the Services, the name of Customer contact persons and their contact data. It also includes documentation which upon simple request proves Customer’s compliance with legal and fiscal obligations as required by mobile operators or legal authorities.

3.2 Customer is the only party who is responsible for the content of the messages it transmits over the telecommunication networks via the platform and services of MobileWeb.

3.3 Customer will pay for its own technical costs related to the execution of the Agreement, meaning that the cost of the technical integration of Customer’s systems and processes will be at the exclusive charge of Customer.

3.4 Customer represents and guarantees that the use of the Services will at all times be in compliance with any and all applicable laws and regulations, whether Belgian, European or international. Customer explicitly agrees with the GOF Guidelines (rules of good conduct) established by the Belgian mobile operators as well as with the applicable Belgian law on proper use of premium sms and ivr services (“ethical code”). The Client will not use the services provided by MobileWeb for the following purposes (this list is illustrative and not limitative) :

• The use of the services provided by MobileWeb to create chain letters, "junk SMS", "spamming" or any other form of unsolicited messages ;
• The gathering of information or personal data of others (such as the GSM number) without prior permission ;
• The creation of false identities or any tentative to mislead others with the use of misleading identities when sending messages via MobileWeb ;
• The sending via MobileWeb of content that is illegal, harassing, misleading, ambiguous, uncultivated or against public order ;
• The sending via MobileWeb.be of content that breaches the rights of intellectual property or other rights of third parties, including the deposited brands and copyright ;
• The sending via MobileWeb of defamatory or negative content regarding MobileWeb and all related companies or regarding any other person or society ;
• The sending of material that contains viruses, "Trojan horses", "worms", "time bombs", or any other program that can cause damage to the electronic systems of the recipient;
• The disturbing of the networks that are connected to MobileWeb or a violation of the procedures and rules of these networks ;
• The tentative to gain access without permission, by hacking passwords or by any other method, to the services of MobileWeb, to the accounts of other clients of MobileWeb, to systems and networks that are connected to MobileWeb ;
• The use of the service for purposes that go against the criminal Law, civil rights or public order.

3.5 Customer explicitly guarantees to MobileWeb its full compliance with all fiscal regulations, related to the delivery of premium services over telecommunication networks to end users, more specifically, but not exclusively, with respect to the tax regime as described by Circular Letter E.T. 109.696 (AFER N°50/2009), related to VAT, and Circular Letter IR/IV-4/91.638 (AREC – 2/2009 AFER 51/2009, related to tax-on-games; these circulars are effective on 1 April 2010. Amongst others, Customer, offering any service which is considered by the fiscal authorities as a game of chance under the above circulars, guarantees to have a permanent establishment located in Belgium.

3.6 Customer warrants having at all time the necessary service licenses and authorizations in place (e.g., for the organization of SMS games and competitions). Customer will provide the necessary details upon simple request from MobileWeb.

3.7 Customer is sole responsible for the proper VAT and any other tax treatment (registration, reporting, correct VAT regime in accordance with international VAT rules, payments, etc) with respect to premium services delivered to End Users. Customer is assumed delivering directly these services to the End Users, and will therefore bear full responsibility.

3.8 Customer shall exercise all reasonable efforts to prevent any fraudulent use of the MobileWeb Services by third parties.

3.9 Customer warrants complying with the obligations of the Belgian data protection laws and regulations, and shall not knowingly doing anything, or permitting anything to be done, which might lead to a breach.

3.10 Customer will setup an end-user helpdesk as required by the mobile operators or legal authorities. If MobileWeb accepts to fulfill the helpdesk role on behalf of Customer, it will only handle the incoming requests and ensure timely and adequate response within an agreed framework. Parties explicitly agree that in such case MobileWeb does not bear any responsibility with respect to the content of the Services and it does not accept any legal responsibility in this respect.

3.11 For the provisioning of premium Services subject to the cash collection model, Customer shall provide the end-user at the request of the latter an invoice corresponding to the Service provided by Customer to this end-user.

Article 4 : Invoices and Payments

4.1 Within fifteen (15) days after the end of each calendar month, MobileWeb will provide to Customer a set of financial documents covering the delivery of services and processing of messages of the previous calendar month:
(i) an Invoice covering the fees payable to MobileWeb (“MobileWeb Invoice”),
(ii) if applicable under the provisioning of premium rate Services in a Reseller model, a Refund Note covering the Refund payments for which Customer can send an invoice to MobileWeb,
(iii) if applicable under the provisioning of premium rate Services in a Cash Collection model, a Cash Collection Note covering the amounts of cash collected from end-users on behalf of Customer (“acknowledgement of debt” or “obligation payable”).

4.2 Customer shall pay the MobileWeb Invoices within thirty (30) days after invoice date, unless netting/compensation is applied under the provisioning of premium rate services or unless explicitly otherwise agreed among parties.

4.3 All invoices need to be paid before the end of their due date. Every invoice which remains unpaid on the due date will, without any notice, monthly be raised with 1% of the total amount, VAT exclusive. Apart from that, a damage compensation of 15% of the invoice amount, with a minimum of 25,00 € and a maximum of 1.250,00 €, is due. Any taxes that might be applicable are at the cost of Customer.

4.4 Moreover, given the non-payment of the invoice of MobileWeb, and after a written reminder for payment, the Services can be suspended by MobileWeb and will then remain inaccessible for the Customer. Customer has the possibility to ask MobileWeb for the re-activation of the Services in question, by paying the unpaid invoices, damage compensation and related interests. Any additional administrative, technical or other costs that result from a late payment and/or the suspension of a Service are completely at the cost of Customer.

4.5 In case of the provisioning of premium rate Services under the Cash Collection model, MobileWeb will pay to Customer as soon as reasonably practicable the “amount collected for third party account” for the respective period after deduction of its own facilitation costs and the operators’ intermediary and telecommunication service fees for the respective period. Netting of the amounts collected and the services will be applied, unless otherwise explicitly agreed. MobileWeb will strive to pay the amounts collected no later than 70 days after the end of the reporting period, being understood that a later payment for which MobileWeb is not responsible, will not entitle Customer to any interest or damage indemnification.

4.6 The parties explicitly agree that based on the convention they concluded regarding Premium Services in the reseller model, in which party MobileWeb puts its technical platform and services at disposal and invoices Customer, who delivers content and invoices the refunds to MobileWeb, the principle of conventional compensation applies regarding the receivables between parties. The conventional compensation will take place at the issue of every new invoice by MobileWeb.

Article 5 : Intellectual Property Rights

5.1 MobileWeb is and remains the right and sole owner of the intellectual property rights on its applications, platforms, and in general all elements belonging to its MobileWeb Plug & Play Mobile Solutions.

Article 6 : Duration of the Agreement

6.1. This Agreement shall enter into force at the date of signature. The Agreement is entered into for consecutive periods of one year.

6.2. This Agreement may be terminated as follows:

• by either party provided a three (3) months notice is given to the other party by registered mail, the Agreement will terminate at the expiration of the period of one year.
• by either party if the other party shall be in material breach of one or more of the terms of this Agreement, and such material breach shall continue uncured for twenty (20) calendar days after written notice from the non-breaching party, specifying the terms of this Agreement allegedly breached;
• by either party immediately and without compensation in the event of bankruptcy or any other insolvency proceedings against the other party;
• by mutual written agreement of the Parties;
• immediately and without compensation by MobileWeb in case Customer is in material breach with the applicable laws and regulations of good conduct as stipulated in Article 8 of the present general conditions.

6.3. The SMS credits purchased by the Client remain valid for one (1) year after purchase. After this period MobileWeb.be preserves the right to cancel these credits, without further obligations or refund.

Article 7 : Liability

7.1. MobileWeb will not be held responsible for the actions of Customer that violate applicable material rules or regulations (cfr. Article 3).

7.2. MobileWeb is in no way responsible for the content of the messages that are transmitted through its Services. The responsibility of the content of these messages lies entirely and solely with Customer.

7.3. In case of liability arising out of or in connection with Customer’s breach of the Articles of this Agreement Customer shall be liable, indemnify and/or hold MobileWeb harmless against all losses, claims, demands, actions, proceedings, damages (indirect or consequential damages included) and other payments, costs, expenses or other liabilities of any kind (“Losses”) incurred or suffered by MobileWeb.

7.4. Furthermore, Customer shall be liable to indemnify and hold MobileWeb harmless against all losses howsoever caused by Customer, its representatives or any other person or entity used by Customer (e.g. agents, contract partners or subcontractors) in respect of any claim from third parties (e.g. Users or Competent Authorities) for which MobileWeb is (legally) liable to pay in respect of or resulting from the manner in or means by which the Services are performed or the failure to provide the Services in accordance with this Agreement.

7.5. The Client shall hold MobileWeb or the mobile operator harmless for any Games of Chance Taxes which would be imposed on MobileWeb or the mobile operator in case the Client has not complied with his obligation to pay the Games of Chances taxes. In such case, MobileWeb or the mobile operator will be entitled to retain any amounts collected by it from the end-users and due to the Client and MobileWeb or the mobile operator will be entitled to set of its claim in relation to the Games of Chance Taxes with such retained amounts.

7.6. MobileWeb shall not be liable for any damages and costs incurred or suffered by Customer, its representatives or any other person or entity used by Customer except in the event of the willful and serious misconduct of MobileWeb. In no event shall MobileWeb be liable for any special, incidental or consequential damages, or lost revenue or profits, or lost or damaged data, or any indirect damages, whether arising in contract, tort, or otherwise. The parties explicitly agree that in any case the liability of MobileWeb cannot exceed the amount paid by Customer for the delivery of services and/or goods in the month preceding the demand of compensation for damages.

Article 8 : Suspension, sanctions and penalties

8.1. Without prejudice to its right to claim damages, MobileWeb has the right to suspend the execution of its obligations, without prior notice, in the following cases:

• End-User complaints and/or regulator investigations for non-compliance with the Applicable Legislation (morality, intellectual property, privacy, prevention of racism, pricing regulations including Article 71 of the Numbering Royal Decree of 27 April 2007,…),
• failure to declare and pay appropriately VAT or tax, and to comply with Circular Letter E.T. 109.696 (AFER N°50/2009)(VAT circular) and Circular Letter IR/IV-4/91.638 (AREC – 2/2009 AFER 51/2009)(gambling circular)
• harm or risk of harm to the reputation of MobileWeb (or any linked company) or that of the mobile operators,
• harm or risk of harm to the End-Users,
• an element of information, of whatever nature, makes it clearly appear that Customer’s Service concerned is prohibited by law or by this Agreement,
• Customer’s Service associated with a shortcode does not match the description provided by Customer,
• Customer is unable to prove that an End-user agreed explicitly to receive a SMS/MMS premium or SMS/MMS Bulk message,
• Customer sends unsolicited SMS/MMS messages or sends such messages at random to End Users,
• Customer does not respect warning requirements (eg in case of activation or de-activation of mobile services by the End-User),
• the de-activation processes as required in this Agreement are not complied with,
• the communication or advertising or promotion associated to SMS/MMS Premium, SMS/MMS Bulk or Green SMS is not meeting the requirements described in this Agreement.

8.2. In case of intervention by MobileWeb, suspension or cancellation of a Customer’s Service, or in case MobileWeb has to address a complaint or respond to an investigation, due to a problem under the responsibility of Customer, including any violation of the present Agreement and if applicable its Annexes, MobileWeb reserves the right to charge Customer administrative costs up to 5,000 Euros, without prejudice to MobileWeb’s right to claim for the actual damages, pursuant to Article 8 above. In any case, Customer will refund all amounts paid by MobileWeb or the mobile operators to the End-Users as part of an eventual settling of an incident.

8.3. Customer agrees that all unpaid amounts (refunds or cash collected in the cash collection model) can be used by MobileWeb as a warranty to cover up for eventual damages and claims, even if the open amounts relate to periods other than an eventual period in which an incident would have occurred.

Article 9 : Data protection and privacy

9.1. The personal data of Customer are registered in the databases of MobileWeb NV, Verdunstraat 742, 1130 Brussels. Customer has the right to access and to modify his data.

9.2. These data will be used by MobileWeb NV for Customer administration, for market research and for promoting our products and services. In case Customer does not want to receive certain information, he can inform MobileWeb about this by e-mail info@mobileweb.be, by fax on 02/247 37 01, or by post on the following address: MobileWeb NV, Verdunstraat 742, 1130 Brussels.

9.3. MobileWeb NV declares to treat Customer’s data confidentially, conform the national and international conventions, among which the Belgian law of December 8th, 1992, about the protection of the privacy related to the treatment of personal data (M.B., March 18th, 1993), modified by the law of December 11th, 1998 (M.B., February 3rd, 1999), its later amendments and executory decisions

9.4. MobileWeb NV will not pass on, share or sell to a third party any information regarding GSM numbers, and the identification data of members, clients, prospects, employees, relations or friends without asking Customer for a written permission, in which is confirmed that the people concerned have given their permission for the specific use of their data and thereby guarantee the rules and duties regarding the use of data with a personal character.

9.5. MobileWeb NV will not pass on, share or sell to a third party any information regarding GSM number, e-mail address, telephone and fax number, demographical and identification data of Customer unless he has explicitly given a permission.

Article 10 : Force majeure

10.1. Either party shall have the right to delay delivery, performance or acceptance where such delay is caused by natural or civil occurrences beyond its control. The affected party shall notify the other party of the delay as soon as reasonably possible, and shall cooperate in minimizing the impact of such delay.

Article 11 : Miscellaneous

11.1. Persons furnished by MobileWeb shall be solely the employees or agents of MobileWeb under its sole and exclusive direction and control. MobileWeb’s employees or agents shall not be considered employees of Customer for any purpose.

11.2. Customer shall not solicit directly and indirectly, employees of MobileWeb.

11.3. Customer shall not, without the prior written approval of MobileWeb, disclose the information contained in this Agreement, nor any other information which both parties exchange as part of their collaboration and which is considered as confidential. This Article shall survive the termination of the Agreement.

11.4. Neither of the Parties may transfer nor assign all or part of the Agreement to a third party without the prior written agreement of the other party, which shall not be unreasonably, be withheld to the other party.

11.5. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.

11.6. This Agreement supersedes and replaces any and all prior negotiations, arrangements and understandings, whether or not in writing, between the Parties with respect to the subject matter of the Agreement. No variation or change of this Agreement is valid unless it is in writing and signed by or on behalf of each party.

11.7. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of this Agreement or of any other provision hereof. The provision held to be invalid and/or unenforceable shall only be ineffective to the extent of such unenforceability or invalidity.

11.8. Both Parties will perform the Agreement on a loyal basis. All disputes arising in connection with the Agreement shall be settled by the courts courts of Brussels in accordance with Belgian Law.