"Administrative User" means an individual who is an employee or contractor of Customer and that Customer wishes to have access to and use of the Emalify.
“Content” means all material, information, access and details contained in the Emalify Website and all or any material generated on the Emalify Website.
“Customer” means a Corporate or Individual user of the Emalify Website who is fully paid up and in use of Emalify services.
“Services” means the services provided by Emalify to the Customer that facilitates the communication between a Business and Chat Participants through a variety of Messaging Channels, as more particularly described on the Emalify Website.
“User” means any person (corporate or individual) who accesses and makes use of the Emalify Website regardless of whether such User is a Customer of Emalify.
Clause headings do not affect the interpretation of these terms.
A reference to a person includes a natural person, a corporate or unincorporated body (whether or not having a separate legal personality).
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment, and includes any subordinate legislation for the time being in force made under it.
Words in the singular include the plural and in the plural include the singular.
Subject to these terms and conditions, the Services are solely for User's particular and sole use. As used herein, "User" includes Emalify's paying customers ("Customers"). These terms set forth certain terms and conditions that apply to Customers, but not other Users. In the event any Customer-specific terms or conditions conflict with any of the terms or conditions that apply to Users generally, the Customerspecific terms and conditions shall prevail.
Subject to issuing a two (2) week notice, Emalify may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. Emalify may however impose limits on certain features and services or restrict User's access to parts or all of the Services without notice or incurring any liability from the User provided that such limitation shall not last for a period beyond 72 hours;upon which Emalify shall either issue the two (2) week notice or reinstate the Services immediately.
User certifies to Emalify that if User is an individual (i.e., not a corporation) User is at least 13 years of age. User also certifies that it is legally permitted to use the Service, and takes full responsibility for the selection and use of the Service. These terms are void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.
User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to or access the Service, including, without limitation, modems, hardware, software, and long distance or local telephone service. User shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
User shall not, nor permit anyone else to, directly or indirectly:
(i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (this restriction shall apply in addition to the limited extent restrictions on reverse engineering where prohibited by applicable local law);
(ii) modify or create derivatives of any part of the Service;
(iii) rent, lease, or use the Service for timesharing or service bureau purposes; or
(iv) remove or obscure any proprietary notices on the Service.
As between the parties, Emalify shall exclusively own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof.
User shall not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any Emalify Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any Emalify Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service. Emalify reserves the right to bar any such activity and take any remedial action to remedy breach of this condition of use.
User shall not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Emalify server, or to any of the services offered on or through the Service, by hacking, password "mining", or any other illegitimate means.
User shall not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.
User shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or Emalify's systems or networks, or any systems or networks connected to the Service or to Emalify.
User shall not use the Service or any Emalify Content for any purpose that is unlawful or prohibited by these terms.
Premium paid services are available on the Website. By selecting a premium service User agrees to pay Emalify the monthly or annual subscription fees indicated for that service. Payments will be charged on the day User signs up for a premium service and will cover the use of that service for a monthly or annual period as indicated. Premium service fees are not refundable.
As a condition to using certain products and services of the Service, User may be required to register with Emalify and select a password. User shall provide Emalify with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these terms, which may result in immediate termination of User's account. Emalify reserves the right to refuse registration of, or cancel any Emalify User at its discretion. User shall be responsible for maintaining the confidentiality of User's Emalify password and other account information.
Subject to issuing a two (2) week notice and the clause on 'Access to the User's Emalify Account' above, Emalify may terminate User access to all or any part of the Website or Service at any time, with or without cause, with or without notice, effective immediately. If User wishes to terminate its Agreement or its Emalify User account (where assigned), User may discontinue using the Website. Notwithstanding the foregoing, paid accounts can only be terminated by Emalify where there has been a material breach of the Agreement with Emalify and such breach has not been cured within thirty (30) days of notice by Emalify of such breach; provided that, Emalify reserves the right to terminate the Website immediately as part of a general shut down of the services offered. All provisions of such Agreement and these terms, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, indemnity and limitations of liability.
User agrees that all content and materials (collectively, "Content") delivered via the Service or otherwise made available by Emalify at the Website are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Emalify does not support the distribution of pornographic content. Except as expressly authorized by Emalify in writing, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any legally prohibited materials or content.
Subject to a notice period of two (2) weeks, Emalify reserves the right, at its sole discretion, to modify or replace any part of these terms. It is the User’s responsibility to check these terms periodically for changes. The continued use of or access to the Website following the posting of any changes to these terms constitutes express acceptance of those changes. Emalify may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to these terms and conditions.
If User is a Customer, Emalify makes the following warranty to Customer: Emalify shall use commercially reasonable efforts consistent with prevailing industry standards to provide the services in a professional and workmanlike manner that is free of defects. Customer's sole remedy, and Ongair’s exclusive liability, for defects in the Service shall be for Emalify to use commercially reasonable efforts to promptly correct such defects.
Customer represents and warrants that:
(i) with respect to all information it provides to Emalify (such as, Recipient Information), Customer has the full right and authority to make such provision and to allow Emalify to use such information to provide the Service (including, without limitation, for Emalify to provide such information to its data providers),
(ii) none of the content (e.g. emails) transmitted, uploaded or otherwise distributed by it (or its partners or any third party) through use of the Service will infringe or otherwise conflict with the rights of any third party.
In no event will Emalify, or its suppliers or licensors, be liable with respect to any subject matter of these terms under any contract, negligence, strict liability or other legal or equitable theory for:
(i) any special, incidental or consequential damages;
(ii) the cost of procurement of substitute products or services;
(iii) for interruption of use or loss or corruption of data; or
(iv) for any amounts that exceed the fees paid by the User to Emalify under these terms or any specific Agreement with Emalify. Emalify shall have no liability for any failure or delay due to matters beyond its reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
The User represents and warrants that:
(ii) the use of the Website will not infringe or misappropriate Ongair’s intellectual property rights or those of any third party.
All content included on the Website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Emalify or its content suppliers and protected by international copyright laws. The compilation of all content on the Website is the exclusive property of Emalify and protected by international copyright laws. All software used on (or provided through) the Website is the property of Emalify or its software suppliers and protected by international copyright laws.
The User indemnifies and holds harmless Emalify, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of the use of the Website, including but not limited to the User’s violation these terms.
Customer will not assign its use/licence and these terms and conditions to any third party without Ongair’s prior written consent, which consent will not be unreasonably withheld. Emalify may assign its obligations or any rights under this terms and conditions to any third party without Customer’s consent in connection with any merger or change of control of Emalify or the sale of all or substantially all of Ongair’s assets provided that any such successor agrees to fulfil its obligations pursuant to these terms and conditions. Any assignment in violation of this Section will be void. These terms and conditions will be binding upon permitted assignees. These terms will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
Choice of Law.
These terms and any action related thereto will be governed by and construed in accordance with the substantive laws of the Republic of Kenya, without regard to conflicts of law principles. The Parties will initiate any lawsuits or dispute resolution mechanisms in connection with these terms in London, England and irrevocably submit to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these terms.
Customer’s relationship to Emalify is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Emalify.These Terms & Conditions were last updated on 21st August 2019.