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The QQ Instant Messaging Service (the "Service") is brought to you by MultiChoice Subscriber Management Services (Pty) Ltd ("MWEB") (hereinafter referred to as "we", "us" and/or "our"), to whom it is made available by Tencent (BVI) Ltd ("Tencent"). Please note that by using the Service you will be signifying your acceptance of these terms and conditions, which will become binding on you the first time you log-on to the Service.

The Service

1.1 You hereby agree that your use of the Service shall at all times be subject to the terms and conditions as set out herein. If you are not willing to agree to these provisions, you must NOT use the Service.

1.2 Upon successful registration for the Service, you will be issued with a QQ number and have the opportunity to choose a nickname, icon and password. You are solely responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your QQ number and password. You agree to immediately notify us of any unauthorised use of your password or any other breach of security. You further agree that we will not be liable to you or any other party whatsoever in respect of any losses or damages resulting from someone else using your password, whether with or without your knowledge. However, you could be held liable for losses or damages incurred by us or any third party due to someone else using your password.

1.3 We reserve the right at any time and from time to time to modify or discontinue, either temporarily or permanently, the Service (or any part thereof), with or without notice to you and you agree that we will not incur any liability, of whatsoever nature, to you for any such occurrence.

1.4 We will, at our own discretion, determine the period and level of support, if any, offered with regard to the Service and we make no representations and give no warranties, of whatsoever nature, in this regard.

Service Availablity

2.1 While we will use reasonable endeavors to keep the Service available at all times, you acknowledge that we make no guarantees, of whatsoever nature, in respect of the availability of the Service and that we will not be liable to you or any other party whatsoever in respect of any loss or damages suffered as a result of the unavailability of the Service for any reason whatsoever.

3.1 You hereby agree to adhere to generally acceptable messaging etiquette. In this regard, without being limited to the examples listed below, you agree not to:

3.1.1 engage in any spamming or posting of unsolicited messages to recipients who did not request to receive such messages;

3.1.2 take any action aimed at deceiving or misleading another party or attempt to impersonate or misrepresent your affiliation to any person or entity;

3.1.3 use the Service to transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or that violates any other personal rights;

3.1.4 use the Service to transmit viruses or any other destructive features, regardless of whether or not damage is intended;

3.1.5 use the Service to collect or attempt to collect personal information about third parties without their knowledge or consent;

3.1.6 violate the privacy of any person or attempt to gain unauthorised access to the Service, whether through hacking, password mining or any other means;

3.1.7 use the Service to engage in any illegal or unlawful activity;

3.1.8 use the Service to transmit content which carries any child pornography, religious or racial slurs or threatens or encourages bodily harm or the like;

3.1.9 use the Service in any manner that may infringe another party's intellectual property rights (for example copyright or trade mark) or other proprietary rights;

3.1.10 use the Service to make fraudulent offers to sell or buy products, items or services, or to offer or solicit for any type of financial scam such as "pyramid schemes";

3.1.11 in any way manipulate identifiers in order to disguise the origin of anything transmitted through the Service; and/or

3.1.12 use the Service in any manner which could damage, impair, overburden or disable the Service or interfere with any other party's use or enjoyment of the Service.

3.2 Should you engage in any of the above practices, which shall be determined in our sole discretion, we shall be entitled to suspend or terminate, without notice, your access to and/or use of the Service.

Breaches of these Terms & Conditions

4.1 Should we believe you to be in breach of any of these terms and conditions, we will be entitled, but not obliged, to exercise any rights that we may have in law and to respond to such breach and/or any complaint lodged against you in one or more of the following manners:

4.1.1 issue a warning;

4.1.2 suspend or terminate your access to and/or use of the Service;

4.1.3 claim immediate payment of all costs incurred by us in exercising our rights in terms of this clause 4;

4.1.4 institute legal proceedings against you or any third party, including a claim for any loss or damages, whether direct or indirect, sustained by us as a result of your breach and/or any complaint lodged against you; and

4.1.5 respond to the matter in any other manner deemed appropriate by us.

Indemnity

5.1 You understand and agree that all material of whatsoever nature, sent or received by you through the Service, is the sole responsibility of the party from whom such material originates. Accordingly, we do not guarantee the accuracy, integrity or quality of such material and under no circumstances whatsoever will we be liable in any way for any material, including (without being limited to) any errors or omissions, or any loss or damages of any kind incurred as a result of or in any way relating to such material.

5.2 You further understand and agree that we will not, under any circumstances, be liable for any loss or damages, of whatsoever nature, resulting from the unavailability of the Service, your use of, or inability to use the Service, unauthorised access to, or alteration of your transmissions through the Service, or any other matter relating to the Service.

5.3 The entire risk relating to the use of the Service is borne by you and you assume full responsibility and liability for all claims, losses and damages arising as a direct or indirect result of your use of the Service. You understand that the Service is provided on an "as is" and "as available" basis and that we give no warranties of any kind, whether express or implied, with regard to the Service. Accordingly, we assume no responsibility or liability for timeliness, deletion, mis-delivery, corruption or failure to store any messages or other material maintained or transmitted by or through the Service.

5.4 You hereby indemnify us and agree to hold us harmless from any claim, demand or damage asserted by any third party due to or arising out of your use of the Service.

5.5 You hereby indemnify us and agree to hold us harmless from any loss or damage of whatever nature and howsoever arising from your use of the Service and/or failure to comply with these terms and conditions and/or any other requirements that we may impose from time to time.

5.6 You hereby agree that we will not, under any circumstances whatsoever, be liable for any indirect, consequential, special or incidental loss or damages, howsoever arising from or in connection with the Service, even if advised of the possibility of such loss or damages and whether arising from negligence, breach of warranty or contract or otherwise.

5.7 Tencent does not warrant, guarantee or make any representations regarding the currency, correctness, accuracy, reliability or any other aspect regarding characteristics or use of the Service. You accept sole responsibility and risk associated with the use and results of the Service, irrespective of the purpose to which such use or results are applied. In no event shall Tencent be liable for any damages resulting from misconduct committed by us or any other third party.

Alterations to Terms & Conditions

6.1 We reserve the right to alter these terms and conditions at any time.

6.2 You acknowledge that by using the Service, you will be bound to the then current version of the terms and conditions (the "Current Version") from time to time and that, unless stated otherwise in the current version, all previous versions will be superseded by the Current Version.

6.3 You are responsible for reviewing the Current Version each time you make use of the Service.

6.4 Without derogating from the a foregoing, and without imposing any obligation whatsoever on us, we reserve the right to give you notice of amendments of the terms and conditions. On receipt of notice of amended terms and conditions, you will be obliged to visit the legal section of the www.qq.co.za website and view the then Current Version.

6.5 A certificate signed by us (or by one of our directors, whose appointment, qualification and authority need not be proved) shall be prima facie proof of the date of publication and content of the Current Version and all previous versions of the terms and conditions.

Intellectual Property Rights

7.1 The website www.qq.co.za is operated by us under license from Tencent and the trade mark QQ and the QQ Penguin logo are trademarks or registered trademarks of Tencent. Copyright with regard to the Service belongs to Tencent and Tencent's rights in this regard are reserved. Unauthorised use of Tencent's marks and logo's is prohibited.

7.2 All materials contained in the www.qq.co.za website and its derivatives, which are created or developed on the basis of Tencent copyrighted material by any party rightfully licensed by Tencent or sublicensed by us, are the copyrighted property of Tencent or its affiliated companies. Except for any fair use for purposes of study, research, criticism and review, as permitted under applicable copyright legislation, no part of the aforesaid materials may in any form or by any electronic, mechanical, photocopying, recording or any other means be used, reproduced, stored in a retrieval system, broadcast or transmitted without the prior permission of Tencent. Whoever develops or creates the aforesaid derivatives, including (without being limited to) QQ client skin, animations, cartoons and icons, shall not break any applicable laws or infringe upon any third party's rights, including (without being limited to) intellectual property right and the right of privacy.

7.3 All trademarks, service marks, logos, and trade names relating to the Services (the "Trademarks") are proprietary to Tencent or its affiliates. You may not change any Trademark in any way, including (without being limited to) changes in the color, proportion or design, or removal of any words, artwork or trademark symbols. No part of any Trademark may in any form, alone or in combination with other marks, names or products, or by any electronic, mechanical, photocopying, recording or any other means be used, reproduced, broadcast or transmitted without prior permission from Tencent.

General

8.1 These terms and conditions shall in all respects be governed and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters in connection herewith, shall be determined in accordance with such laws.

8.2 Failure to enforce any provision of these terms and conditions shall not be construed as a waiver of our rights, nor shall such failure in any way affect the validity of the whole or any part of these terms and conditions, nor prejudice our right to take subsequent action.

8.3 These terms and conditions constitute the entire agreement that applies to your use of the Service and no other provision shall be binding on us. No addition to, or variation of these terms and conditions (save for those effected under clause 6 above) shall be of any force or effect.

8.4 If any part of these terms and conditions is determined to be invalid or unenforceable, it shall not affect the remainder of the terms and conditions, which shall remain in full force and effect.

Date of publication: January 10, 2003

 
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