Your use of this Site and its Service is as an acknowledgement that you have read, understood and accept these terms and conditions of use and our Privacy Statement.
This Site and the Service are operated and provided by Cloak Mobile Limited, trading as Cloak Mobile Limited, at Unit 14, 7/F, Hewlett Centre, 54 Hoi Yuen Road, Kwun Tong, Kowloon, Hong Kong. Any references to “we”, “us” or “Cloak Mobile” in these terms and conditions refer to Cloak Mobile Limited, while any references to “you” means you personally or the company, or entity, on whose behalf you are accepting these terms and conditions.
If you have any questions regarding these terms and conditions or our Privacy Statement please contact us at [email protected].
2. UPDATED TERMS AND CONDITIONS
Cloak Mobile reserves the right to modify these terms and conditions and our Privacy Statement at our discretion. The most current version will always be available here. If the modifications are material we may notify you via the email address associated with your account that modifications have been made to these terms and conditions, however, failure to notify you will not affect the effectiveness of any modifications. By continuing to access or use the Cloak Mobile Service after those modifications become effective, you agree to be bound by the modified terms and conditions and will be deemed to have accepted any modification.
This website is controlled and operated by Cloak Mobile from Hong Kong(PRC). Cloak Mobile does not make any representation that this Site, its Content or the Service are appropriate or suitable for use in countries other than Hong Kong(PRC), or that they comply with any legal or regulatory requirements in any such other countries. In accessing this Site, you do so at your own risk and on your own initiative, and are responsible for compliance with local laws, to the extent any local laws are applicable. If it is prohibited to make this Site, its Content or the Services or any part of them available in your country, or to you (whether by reason of nationality, residence or otherwise, this Site, its Content or the Services or any part of them are not directed at you).
4. PRIVACY STATEMENT
Our Privacy Statement deals with how we may use the information you provide to us and information we collect during your use of the Site. Please carefully read our Privacy Statement as it, along with these terms and conditions will govern your use of this Site.
Any information that you provide to Cloak Mobile is subject to our Privacy Statement, which governs our collection and use of such information. You understand that through your use of the Site you consent to the collection and use (as set forth in our Privacy Statement) of this information.
5. GENERAL TERMS AND CONDITIONS
You may use the Cloak Mobile Service only in compliance with these terms and conditions and all applicable laws, regulations and industry codes of practice. If you violate any of these rules, then we may suspend or terminate your account.
To use this Site you must be at least eighteen years old and have the capacity to contract. Cloak Mobile may refuse to service, and may close accounts of any users under the age of eighteen at any time. Cloak Mobile may change these eligibility requirements at any time.
5.2 Your Contact Information
You must provide true, complete and up-to-date contact information.
You agree that you are solely responsible for your own conduct and any content that you send via the Service, and for any consequences thereof.
You cannot use the Service to impersonate any person or entity or to misrepresent your affiliation to any person or entity.
5.5 Copyright & Other Intellectual Property
You cannot use the Service to distribute or make available for download copyrighted material without the copyright owner’s consent, or to infringe any third party Intellectual Property Rights.
Subject to these terms and conditions all Intellectual Property and other rights in the content of this Site and the Service are the property of Cloak Mobile or its licensor. A number of trademarks appear on this Site which belong to Cloak Mobile, or their respective owners. Nothing in the terms gives you a right to use the Cloak Mobile name or any of the Cloak Mobile trademarks, logos, domain names, and other distinctive brand features.
5.6 Compliance with Laws
You agree to use the Service only for purposes that are legal, proper and in accordance with any applicable laws, policies, guidelines and industry codes of practice. You must not use Cloak Mobile Limited in a way that violates any laws or regulations.
6. DATA PROTECTION
Cloak Mobile is a data controller and you are a data subject, for the purposes of data protection law.
By providing Cloak Mobile with information you consent to the transfer and processing of such information, including any Personal Data, by Cloak Mobile and such third parties as required for Cloak Mobile’s business purposes.
In doing so you consent to:
(i) the transfer of such information and Personal Data to countries outside the European Economic Area (i.e. all countries in the European Union together with Norway, Iceland and Lichtenstein). We shall seek to ensure that any such transfer provides a similar level of protection, as that which applies to Personal Data in the Republic of Hong Kong by ensuring transfers are made to companies on the EU-US Safe Harbour List or through the use of EU Commission approved clauses in data transfer agreements.
(ii) the transfer of such information and Personal Data to third parties for the processing of payments (including the transfer of credit card details), reporting, providing the Services and compliance with regulatory and/or legal requirements.
7.1 Setting up your account
To avail of the Service you must register and set up an account with Cloak Mobile. As part of this registration process you will be required to provide certain information. This information must be accurate and you accept responsibility for keeping this information up to date.
You warrant that all information provided is accurate and pertains to you or a company or entity on whose behalf you are registering and that you have been given express consent to provide this information to us. Furthermore you agree to indemnify us from any claim made against us or loss suffered by us resulting from the above warranty. Should you provide false information or fail to adequately update your information we retain the right to cancel your account.
7.2 Your Responsibility For Your Account
Cloak Mobile bears no liability for any activity carried out through your account. You are solely responsible and liable for all use made of the Service through your account, whether authorised by you or not and you hereby indemnify Cloak Mobile for any claims, made in respect of such use.
7.3 Multiple Accounts
Each person, company or entity is entitled to set up one (1) account. Cloak Mobile reserves the right to cancel any accounts where we find that any person, company or entity has more than one (1) account.
You are responsible for safeguarding your Cloak Mobile password and for any activities or actions under your password. We encourage you to use a “strong” password, to provide for greater security. Cloak Mobile cannot and will not be liable for any loss or damage arising from your failure to comply with the above.
Cloak Mobile will provide you with a replacement password upon request, provided you meet the appropriate security checks. However, Cloak Mobile will not be liable for any loss you suffer as a result of you forgetting your username and password.
Cloak Mobile reserves the right to require you to change your password at any time, without cause.
Once you have registered, your email address shall serve as your username and shall be requested along with your password each time you attempt to log on to your account.
7.5 Service Messages
As part of providing you the Service, we may need to provide you with certain communications, such as service announcements and administrative messages. These messages are part of the Service and you may not be able to opt-out of them while using the Service. You consent to the use of your personal Contact Details by Cloak Mobile, for these purposes.
7.6 Communication with Cloak Mobile
To ensure that Cloak Mobile provides a quality Service, communication between you and Cloak Mobile (or parties acting on Cloak Mobile’s behalf) may be recorded. Cloak Mobile will treat the recorded information as confidential and will only use it for staff training/quality control purposes, confirming details of your conversations with Cloak Mobile or for any other business purposes require to fulfil the terms of this contract.
8. YOUR LICENCE TO USE Cloak Mobile
Cloak Mobile gives any account holder a personal, non-assignable and non-exclusive license to use the software that is provided to you by Cloak Mobile for the sole purpose of allowing you to use the Service, in the manner permitted by these terms and conditions and all applicable laws.
9. USE OF THE SERVICE
9.1 Your Contact Database
You warrant that you will comply with all laws and regulations, including data protection, electronic commerce, electronic communication and privacy laws, that apply to the collection, storage, transfer and use of contact information contained in your account. You agree that you are solely responsible for ensuring such compliance.
You are responsible for ensuring that you have the necessary permission to transfer Contact data to Cloak Mobile and to allow Cloak Mobile to receive and process data and send communications to that individual on your behalf.
You must not use purchased, rented, or third-party lists of mobile phone numbers or other Contact Details.
You must be able to provide written evidence of each Contact’s opt-in to your database.
You agree that Cloak Mobile can opt-out one or more of your contacts at any time for any reason including a customer care request, receipt of an opt-out request from a Contact and/or a network operator request. You cannot re-opt-in a Contact unless they subsequently agree to receive electronic communication (including SMS messages) from you.
Cloak Mobile may permanently opt-out certain mobile phone numbers for any reason. Where details of Contacts have been permanently blocked you will be unable to send Messages to this person, company or entity. Cloak Mobile is under no obligation to, and will not, inform you of any Contacts which have been permanently blocked in advance of your purchase of Message Credits.
Cloak Mobile is under no obligation to, but may as a courtesy, inform you should any of your Contacts become permanently blocked after you have set up your account.
You retain your rights to any Contact Details stored in your account. By storing Contact Details in your account, you grant us permission to store, process and, where directed by you, to transmit your Messages to those Contact Details.
9.2 Sensitive Information
You cannot use Cloak Mobile to store or transmit any Sensitive Personal Data. You warrant that you will not use your account to store or transmit any Sensitive Personal Data, or the following types of data: personal identification numbers, medical information, bank account information, passwords, security credentials, or Sensitive Personal Data of any kind.
9.3 Sending Messages to your Contacts via Cloak Mobile
You warrant that any person whose Contact Details you store on your account and send Messages to has expressly given their consent, for the specific purpose for which each individual Message is sent, within the last 12 months and that such consent has not been withdrawn. You are responsible for ensuring that the necessary consents are obtained from each user and that where such consent is withdrawn, or has not been obtained within the last 12 months, details of those Contacts are deleted from the your account.
When required by Cloak Mobile you are responsible for providing sufficient evidence to Cloak Mobile proving that the appropriate consents have been obtained for each set of Contacts. Failure to produce sufficient evidence will result in those Contacts being deleted from your account and, at Cloak Mobile’s discretion, the cancellation of your account.
Consent will not be deemed to be valid where the person giving the consent is under the age of 18 at the time of giving the consent. You are responsible for ensuring that only Contact Details of individuals who have reached the age of 18 are stored on your account.
Where you obtain an individual’s, company’s or entity’s Contact Details during the course of a sale of a product or a service, you may only use those Contact Details for direct marketing purposes where you are promoting your own products or services and where the products and services are similar to those originally provided to the Recipient. You must also include an opt-out feature in the message.
You warrant that you will not use such Contact Details in any a manner other than as described above. Failure to comply with these requirements will constitute a breach of your obligations under electronic commerce, data protection and privacy laws and any other applicable laws and regulations. Cloak Mobile is in no way liable for any such breach and you are solely responsible for ensuring your compliance.
As part of the Service, users will be entitled to select one Keyword which will be associated with their account. Customers will be able to SMS this Keyword to a designated number. Their Contact Details will then be added to a mailing list on that account.
Cloak Mobile retains the right to disassociate a keyword from an account, without cause. Some of the possible reasons which may lead to Cloak Mobile disassociating a Keyword from an account are, inter alia:
- trademark infringement;
- the Keyword is deemed to be pornographic, offensive, racist, hateful, discriminatory, defamatory or libellous;
- the Keyword needs to be reserved to ensure the provision of the Cloak Mobile Service or we deem it necessary for operational reasons; and
- Keyword squatting.
The above list constitutes a sample of possible reasons, and is not intended to restrict the grounds under which Cloak Mobile may disassociate a Keyword.
Cloak Mobile retains the right to disassociate a Keyword from an account where it has not been used for more than six (6) months. A Keyword will be deemed not have been used where no Messages have been sent to it in that six (6) month period. Cloak Mobile is under no obligation to inform you that it intends to disassociate a Keyword from your account due to lack of use, but may choose do so as a courtesy.
You will have no right to compensation of any kind where a Keyword is disassociated from your account.
9.5 Message Delivery
Whilst we endeavour to ensure that delivery for each Message takes place within a reasonable period of time we do not make give any guarantees that delivery will take place. You must pay for every Message you send regardless of the final delivery status of the Message.
Cloak Mobile will not be liable for any Message not delivered, or not delivered in a reasonable period of time. Similarly Cloak Mobile will not be liable for any loss resulting from failed or late delivery of Messages.
9.6 Acceptable Use of the Service
You understand that you are responsible for all Messages sent by Cloak Mobile on your instruction. Furthermore you understand you are responsible for activities that take place as a result of the use of the Service via your account (whether authorised by you or not).
What is to be considered acceptable use of the Site and Service shall differ depending on whether the user is utilising the Service in his/her personal capacity or in a business capacity. Where the Service is being utilised in a business capacity the user will be required to comply with all legal requirements imposed on him/her under all applicable legislation protecting the rights of consumers and governing direct marketing, electronic communication, electronic commerce and data protection.
While every user utilising the Service warrants to comply with all applicable laws there is a particular onus on users utilising the Service in a business capacity to ensure they understand all obligations imposed on them by law when using the Service. Cloak Mobile accepts no liability for any breach of those obligations by users of the Site. Cloak Mobile merely provides the Service as conduit between the user and the Recipient and is in no way responsible for the Content of any Message sent.
You undertake to indemnify Cloak Mobile from any loss suffered resulting from your breach of your legal obligations when utilising the Service. This indemnity includes loss suffered due to damage caused to Cloak Mobile’s reputation resulting from your breach.
9.7 Abusive Messaging
You agree that you will not engage in any activity that interferes with or disrupts Cloak Mobile’s servers or networks. You warrant that you will not use the Service to send anything offensive or illegal or to harass or bully anyone. You further warrant that when using the Service you will not send anything pornographic, offensive, racist, hateful, discriminatory, defamatory or libellous.
9.8 Inappropriate Use of the Service
Regardless of legal obligation or whether you use the Site in a business or personal capacity the following activities are never permitted:
- the use of the Site or Service for unlawful or fraudulent purposes, or in connection with a criminal offence or other unlawful activity;
- to sending, use or reuse of any material that is illegal, offensive, abusive, malicious, threatening, racist, indecent, defamatory, derogatory, obscene, menacing or otherwise objectionable;
- the use of the Site or Service to harass stalk or inconvenience, cause annoyance or needless anxiety to any person, impersonate any person or act in a way which may be reasonably objectionable;
- the use of the Site or Service to, in any way, infringe copyright, trademarks, confidence, privacy, privilege or infringe on the Intellectual Property Rights of others;
- to use the Service to impersonate another or engage in any form of passing off;
- to use the Site or the Service in any way which is likely to cause damage to the Service, the Site or Cloak Mobile;
- the use of the Site or Service in any way which infringes on other customer’s use and enjoyment of the Site and Service;
- to initiate the sending of unsolicited advertising or promotional material including, without limit, junk-mail for commercial or non-commercial purposes;
- to send anything which consists of or contains viruses, political campaigning, chain letters or spam; to market services for escort and dating services, pharmaceutical products, work from home, make money online, lead generation opportunities, nutritional, herbal, and vitamin supplements, online trading/stock market related content, gambling services or products, multi-level marketing, affiliate marketing, credit repair and get out of debt opportunities, mortgages, loans, adult novelty items, list brokers or list rental services;
- to organise a public protest or demonstration, for any cause;
- to transmit personal sensitive data and/or confidential information; and
- to send any promotional material or messages to anyone under the age of 18.
Use of the Site or Service for any of the above will result in cancellation of your account and a permanent ban from using the Service.
10. YOUR CONTENT
10.1 Your Responsibility for Your Content
Any Content you created during the use of the Service is owned by you and you are responsible for said Content. Cloak Mobile is not responsible for any Content created by you.
By submitting Content through Cloak Mobile, you grant us permission to store, process and transmit the Content as necessary to deliver the Content to recipients you have designated in accordance with these terms and conditions and our Privacy Statement.
In order to deliver your Message we may need to modify the Content as necessary to meet any requirements or limitations of any networks, devices, services or media.
You are responsible for your use of any Content you provide, and for any consequences thereof, including the use of your Content by Message Recipients and our third party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
In addition, you warrant that:
- • any Content you create will be civil, tasteful and in accordance with these terms and conditions;
- • the Content provided by you shall not constitute a criminal offence or give rise to a civil action against you;
- • all necessary licences and consents have been obtained to upload or publish any materials you send via the Service; and
- • where you are a business user using the Service for direct marketing purposes you will comply fully with the applicable direct marketing and advertising industry guidelines and codes.
You hereby agree that you shall indemnify Cloak Mobile against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Cloak Mobile arising out of or in connection with your Content.
We may remove or refuse to transmit Message Content alleged to be infringing copyright without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Cloak Mobile may terminate a user’s account if the user is determined to be a repeat infringer of copyright.
10.3 Reviewing, Editing, Removing and Monitoring your Content
You accept that you are solely responsible for your content and understand that Cloak Mobile will not monitor, edit or remove any of your content before sending a message. Cloak Mobile will only review content, which has already been sent, in response to a complaint received.
We may access, read, preserve and disclose any information, which has already been sent, where we reasonably believe it necessary to do so in order to:
- • satisfy any applicable laws, regulations, legal process or governmental request;
- • enforce these terms and conditions, including investigating any potential violation thereof;
- • detect, prevent or otherwise address fraud, security or technical issues;
- • respond to user supported requests; or
- • protect the rights, property or safety of Cloak Mobile, its users, its staff and the public.
Cloak Mobile may keep track of how your Contacts interact with links across our Service, including, but not limited to, recording whether your Contact has clicked a link provided in a Message, the time of click, the number of times the link was clicked and ip-addresses. We do this to help provide you with reports on your Contact’s interactions. As part of this we may shorten links. This will be done automatically and we accept no liability for the linked content. It is your responsibility to ensure your Contacts have consented to the use of their data for these purposes and you indemnify Cloak Mobile against any liability arising out of your failure to obtain such consent.
10.4 Commercial Content and “Opt-Out?”
If you use choose to use the Service for commercial purposes you are required to comply with the obligations imposed on you by law. In an effort to facilitate your compliance Cloak Mobile offers an “opt-out?” tag line which can be added to Messages where required. You warrant that whenever you send a Message for commercial purposes you will choose to include the “opt-out?” tagline. Failure to include this tagline or an alternative opt-out service for Recipients will result in a breach of your obligations under the relevant electronic commerce and electronic communications laws and regulations. This opt-out service is provided to aid you to comply with your obligations, however, Cloak Mobile bears no responsibility for ensuring you comply with the applicable laws and will not be liable for any breach of these obligations by you. Your compliance is solely your responsibility.
Any commercial Content should also be clearly identified as such and should contain the name of the natural or legal person on whose behalf it is being sent. Also any promotional offers or games must be clearly identified as such.
It is also important that you note that commercial Messages cannot be sent to an individual, company or entity who has objected to such communication. It is your responsibility to ensure that you do not authorise the sending of Messages to any such individual, company or entity.
11. AVAILABILITY OF THE SITE AND SERVICE
We aim to ensure that the Site and Service are available to you at your discretion. However, there may be occasions where we are forced to withdraw the Site or Service for a period of time. While we endeavour to limit any such period, Cloak Mobile will not be liable for any loss suffered resulting from such disruption.
11.1 Suspending or Varying Site Content
From time to time we will update the Site in an effort to ensure we provide the most up to date and efficient Service possible. We may vary any Content or any of the technical specifications of the Site at any time. It may be necessary during such variations to suspend access to the Site or Service for a period of time. We reserve the right to suspend access to the Site or Service for such reasons and in addition for operational reasons such as repairs, maintenance, upgrading Content or functionality of the Service or for the introduction of new Services. We will endeavour to limit the frequency and duration of these disruptions.
11.2 Operations of the Site, Service and Content
We use all reasonable endeavours to provide you with the quality of service generally provided by a competent Site provider exercising reasonable skill and care. However, there may be occasion when there may be faults on the Site or the Site may be impaired by geographic, atmospheric or other conditions or circumstances beyond our control. Due to the nature of the Service and the internet generally Cloak Mobile gives no warranties that the Site and Service will be provided in a timely manner free from interruptions or errors.
Cloak Mobile tries to protect the integrity of the Site, however, Cloak Mobile gives no warranties that the Site will be secure, or that the Site or any part of it will be free from infection by viruses or anything else which has contaminating properties or which may cause damage.
11.3 Supply of the Service
While we endeavour to ensure uninterrupted and timely provision of the Service and to correct any faults which we become aware of within a reasonable period of time we cannot ensure this is always the case. The Service is provided without any warranty or guarantee (including those implied by law).
11.4 Changes to the Cloak Mobile Services
The Services that Cloak Mobile provides are always evolving and we may change the Services that Cloak Mobile provides from time to time without prior notice to you. We may stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally and may not be able to provide you with prior notice. We may create limits on use and storage at our sole discretion at any time without prior notice to you. We may refuse to transmit any Message Content entered on the Site, to suspend or terminate your account, and to reclaim Keywords without liability to you.
12. PAYMENT AND MESSAGE CREDITS
The Charges for the Service will be those displayed on the Site at the time of purchase or those notified to you before purchasing Message Credits. All Charges are inclusive of VAT and other applicable taxes. Additional administrative charges may apply, depending on the method of payment.
Cloak Mobile reserves the right to vary its Charges or to introduce new Charges for Services which were provided for free in the past or to vary or introduce new administrative fees at any time. Any variation to our payment terms shall be binding and final.
12.2 Payment Method
All payments, unless otherwise agreed with Cloak Mobile, must be made online via our payment processing service. Payment will not be accepted in any form other than those designated in our payment processing service. Cloak Mobile accepts no responsibility for any loss resulting from failed payments.
You warrant that any information supplied as part of the payment process is accurate and pertains to you and any credit card, debit card or equivalent method of payment provided belongs to you or you are authorised to use such payment method. You agree to indemnify Cloak Mobile against any loss we may suffer resulting from incorrect payment information provided or resulting from your use of a payment method which you were not authorised to use.
By approving the purchase of Message Credits, you authorise Cloak Mobile to charge the designated payment method for the total amount of the purchase.
12.3 Message Credits
Cloak Mobile is not a licensed financial service provider and Cloak Mobile provides its Services as a cashier using a payment processing service rather than a banking service.
Once payment has been successfully received by Cloak Mobile the designated users’ account will be credited with the corresponding number of Message Credits. These Message Credits are non-refundable and may only be used to pay for Messages sent via Cloak Mobile.
Should Cloak Mobile credit Message Credits to your account which subsequently transpire not to have been paid for Cloak Mobile may remove these Message Credits from your account and deduct any additional Message Credits in your account to make up for any improperly credited Message Credits spent by you.
12.4 Connection and Access Charges
You are responsible for any and all service fees, Charges and costs associated with the access to the Site and the use of the Service via the Site. This includes the responsibility for paying for the fixed internet connection necessary for connecting to the Site and using the Service.
13. CLOSING YOUR ACCOUNT
13.1 Closing your Account
You or Cloak Mobile may terminate this Agreement at any time and for any reason by giving notice to the other party. We may suspend the Cloak Mobile Service to you at any time, with or without cause. These terms and conditions will continue to apply until terminated by either you or Cloak Mobile as follows.
If we terminate your account without cause, we’ll refund a prorated portion of your monthly prepayment or reimburse you for unused Message Credits. We won’t refund or reimburse you if there’s cause, like a violation of these terms and conditions. Once terminated, we may permanently delete your account and all the data associated with it, including your Contact database.
We also retain the right to immediately suspend the Service at any time without cause. During any such suspension of Service these terms and conditions and our privacy statement will continue to apply, until this Agreement is terminated by you or Cloak Mobile.
13.2 Inactive Accounts
If you don’t log in to your account for 12 or more months we may consider it to be “inactive” and may permanently delete the account and all the data associated with it. Such deletion will result in a loss of all your Message Credits, none of which shall be refunded by Cloak Mobile.
13.3 Data Retention after Account Closure
We may choose to retain your account data after your account is closed where we reasonably believe it is necessary to address:
- any future claims of breach of laws and/or regulations;
- claims of copyright infringement;
- claims of trademark or other intellectual property infringement;
- claims of fraud;
- identifying future risks of breaches of law and/or regulations, fraud, security or technical issues.
You consent to the retention of your data and the data stored in your account for these purposes.
To the fullest extent permitted by law Cloak Mobile nor any of its directors, employees, affiliates or other representatives will be liable for any loss or damage arising out of or in connection with:
- your use of the Service;
- your inability to access or use the Service;
- loss of data;
- claims of third parties;
- failure to store or transmit data maintained by Cloak Mobile;
- any advice, whether oral or written, obtained from Cloak Mobile;
- your provision of incorrect Contact Details;
- your device not supporting Cloak Mobile;
- your failure to receive opt-out Messages due to an unidentified fault with the Service;
- our failure to correctly register you for the Service;
- any Content provided by you;
- any Message sent on your behalf;
- your information, third party information or any other material on the internet which can be accessed using the Service or the Site and we are not responsible in any way for goods or services provided, advertised or otherwise made available by means of the Service or Site; or
- any failure to do what we have promised because of something beyond our reasonable control such as technical failure, lightning, flooding, exceptionally severe weather, fire or explosion, civil disorder, war, military operations, industrial disputes of any kind (including those involving our employees), natural or local emergency, the acts or omissions of other providers of internet service or the failure of any mobile network or apparatus, anything done by the government or other competent authority.
Even if Cloak Mobile has been advised of the possibility of such loss or damages, or such loss or damages were reasonably foreseeable. No advice or information, whether oral or written, obtained from Cloak Mobile will create any warranty not expressly made herein.
We do not accept liability in these terms and conditions, tort (including negligence) or otherwise, for direct or indirect loss of profits, income, business or anticipated savings, nor for any indirect, incidental or consequential damages, including, without limitation, loss or destruction of data, or other information under any circumstances.
Our maximum aggregate liability arising out of or in connection with these terms and conditions whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused, including by negligence and/or arising from a breach of, or a failure to perform the Service or otherwise in relation to the Service or the Site or operation thereof will be limited to the Charges you have paid for the Service during the twelve (12) months preceding the date on which the claim arose. The financial limit on liability set out above is the maximum liability of Cloak Mobile any of its directors, employees, affiliates or other representatives.
However, nothing contained herein will operate to exclude or restrict our liability in respect of death or personal injury caused by our negligence or any other liability to the extent that it cannot be excluded or limited by law.
Except as expressly set out in these terms and conditions and our Privacy Statement, all representations, warranties, terms and conditions whether express or implied, in relation to the Site and the Service, are hereby excluded to the fullest extent permitted by law. Each provision of these terms and conditions which seeks to exclude or limit liability operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
You agree to use reasonable endeavours to mitigate the consequences of any losses, costs, expenses, claims and demands incurred by you from your use of the Service and the Site.
The exclusions from and limitations of liability contained herein will apply after as well as before termination of this Agreement.
Your access to and use of the Cloak Mobile Service is at your own risk. You understand and agree that the Cloak Mobile Service is provided to you on an “AS IS” and “AS AVAILABLE” basis.
You agree to indemnify us against any claims or legal proceedings which are brought or threatened against us by a third party because the Site or Service is used by you in breach of the provisions of these terms and condition. We will notify you of any such claims or proceedings and keep you informed as to the progress of such claims or proceedings.
16. DISPUTES WITH THIRD PARTIES
You undertake to tell us immediately if anyone makes or threatens to make any claim or issue legal proceedings against you in relation to your use of the Service. You warrant that at our request you will immediately stop the act complained of. Should we ask, you warrant to provide a written statement detailing any such claims or legal proceedings. You agree that should you fail to stop the acts complained of after requested to do so by us we may immediately suspend your account or terminate this Agreement.
The Cloak Mobile Site and Service may contain links to third-party websites or resources. We are not responsible or liable for the content availability or accuracy of these third parties. Links to such websites or resources do not imply any endorsement by us of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
If any section of this Agreement is found by a court of law not to be enforceable, then that section will be removed or edited as little as necessary, to ensure compliance, and the rest of these terms and conditions shall remain valid and applicable.
The following clauses of this Agreement shall continue to apply after termination of this Agreement, clause 10, 13.3, 14, 15, 16 along will all warranties, indemnities and undertakings given by you.
The failure of Cloak Mobile to enforce any of the provisions of these terms and conditions, and the rights contained therein, will not be deemed to be a waiver of such provisions or rights.
21. GOVERNING LAW AND JURISDICTION
These terms and conditions and any matter arising hereunder whether contractual or non-contractual shall be governed by the laws of Hong Kong, and you hereby agree to submit any dispute (contractual or non-contractual) regarding this Agreement to the jurisdiction of the Irish courts.
22. ENTIRE AGREEMENT
These terms and conditions and our Privacy Statement are the entire and exclusive Agreement between you and Cloak Mobile. These terms and conditions supersede and replace any previous terms and conditions or prior Agreements between you and Cloak Mobile, regarding the Site and the Service.
Save as provided for in the limitation of liability section, the parties do not intend that any of these terms and conditions will be enforceable by any person other than you, Cloak Mobile and any Cloak Mobile group members.
The following terms shall have the following meanings in these terms and conditions:
- Agreement means the entire agreement between you and Cloak Mobile; this includes these terms and conditions and our Privacy Statement
- Charges means all charges for the Service as notified to you prior to your purchase. These charges may be varied from time to time and it is the responsibility of the user to check the Charges prior to purchase. Charges may also include a reasonable administration fee
- Contact or Contact Details means a mobile phone number and associated information like name, email, note stored in your Cloak Mobile account
- Content means any text, graphics, photos or other materials uploaded entered by you to the Cloak Mobile Service
- Intellectual Property Rights means copyright, trademarks, patents, registered and unregistered design rights, know how, confidential information and other relevant proprietary and intellectual property rights
- Keyword means a unique set of letters and/or numbers that your Contacts can use to opt-in to your database via text message
- Message Credits means the credit which a user is required to purchase in order to use the Service. Message Credits are deducted from a users account after each message is sent
- Messages means any SMS, MSM or email which is sent on your instruction by Cloak Mobile to a designated Contact
- Personal Data means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller
- Recipient means the person who actually receives the Message you instructed to be sent
- Sensitive Personal Data means sensitive personal data as defined in the EU Data Protection Directive 1995
- Service means the service provided by Cloak Mobile which allows you to send Messages to one, or a group, of your Contacts online through the Site.
- Site means website, mobile app or any other medium on which the Service can be accessed.