GENERAL TERMS & CONDITIONS
Last Updated October 16, 2020
Summary of Changes to General Terms & Conditions of MMDSmart
We’ve updated our General Terms & Conditions (“GTC”), which will be effective starting October 16, 2020.
October 16, 2020 changes:
We have updated Section 6 “Messaging Restrictions” by inserting clauses 6.15 and 6.16.
Effective: October 16, 2020
These General Terms & Conditions (hereafter addressed as GTC) set forth MMDSmart terms and conditions for providing services to its customers in accordance with the separately executed Master Service Agreement (hereafter addressed as MSA) and are hereby incorporated by reference in the MSA. To use services of MMDSmart, the Customer must accept all of terms contained in these GTC. MMDSmart shall be entitled to unilaterally amend the General Terms and Conditions by publishing the amended GTC through http://smartmessaging.mmdsmart.com or https://messagewhiz.com. The amended GTC shall supersede prior versions and, unless MMDSmart notified otherwise, amendments shall become effective upon the effective date indicated at the top of these GTC. The Parties acknowledge that publication of the amended GTC shall serve as proper notification of the changes introduced by MMDSmart to the GTC. Customer’s continued access or use of MMDSmart Services constitutes Customer’s acceptance of any revisions and amendments.
Capitalized terms not otherwise defined herein shall have the meanings associated with them in the MSA.
1.1 In these GTC, the following terms shall have the meanings specified below:
“Accessible Mobile Operators” shall mean the digital cellular networks accessible from the MMDSmart Platform.
“Agreement” shall mean the MSA between MMDSmart and the Customer incorporating these General Terms and Conditions and all Annexes/Exhibits/Supplementary Agreements to the MSA.
“Alphanumeric Name” shall mean a unique combination of Latin letters or a unique combination of Latin letters with Arabic numerals (not more than 11 characters) and shall be displayed in the SMS transmitted to the End Users, as the A number of the Customer.
“Balance” shall mean the amount of money the Customer has paid to MMDSmart less the value of the Services the Customer has used with MMDSmart.
“Bulk SMS” or “A2P SMS” shall mean a type of SMS generally called “an application-to-person message”, which is normally of mass character (the message with the same content is designated to more than one Mobile Subscriber), generated by a software application (not by mobile device of Mobile Subscriber) and intended to be delivered to End User(s) in order for businesses/ advertisers/ organizations, etc. to interact with End Users for transactional and or promotional purposes.
“Business Day” shall mean a day other than a Saturday, Sunday or public holiday in the respective countries of the Parties.
“Confidential Information” shall mean all proprietary, secret, or confidential information, whether written or oral; knowledge, data, drawings, know-how, analysis, compilations, studies, and other materials communicated by the disclosing Party to the receiving Party, acquired by the receiving Party from the disclosing Party, prepared by the receiving Party from or in connection with any of the above information, or materials which contain or are based in whole or in part upon such information which is not generally available to the public.
“Customer” shall mean the party, who purchases the Services of MMDSmart.
“Mobile Operator” or “Operator” shall mean the legal entity which operates a mobile telecommunications system or network that is necessary to provide services to subscribers over the licensed spectrum.
“Mobile Subscriber” and/or “End User” shall mean a customer of telecommunication services, contracted or prepaid, of any Operator which is able to accept SMS messages.
“MMDSmart” shall mean MMDSmart LTD, a Limited Company registered under the law of State of Israel. Registration number 514181627. Registration address: 21 Alterman St, Herzlia 4636414, Israel. Contact phone: +972 9-3760037.
“MMDSmart Platform” shall mean the server, hardware, software and other equipment that MMDSmart uses in connection with performance of the Services.
“Person-to-Person message” or “P2P” shall mean SMS originated by Mobile Subscriber via their mobile device and intended to be transferred to another Mobile Subscriber.
“Services” shall mean the services provided by MMDSmart to the Customer.
“Supplementary Agreement” shall mean any appendix and/or addendum attached to the Agreement containing the description and any specific terms and conditions for a particular Service.
“SMS message” or “SMS” shall mean a set of systematized textual and numeric characters (text) transmitted to the Mobile Subscribers that takes up to 140 bytes in text message length. If the message length is greater than 140 bytes, the SMS shall be segmented according to GSM 03.38.
“SPAM” or “SPAM Message” shall mean any unsolicited or undesired SMS which:
(i) is sent to Mobile Subscriber without prior due consent of the Mobile Subscriber; and/or
(ii) is sent to Mobile Subscriber encouraging such Mobile Subscriber to call or send an SMS at a premium rate or to a premium rate number; and/or
(iii) results in a situation whereby a Mobile Subscriber is charged for the receipt of an SMS by the Mobile Operator and such Mobile Subscriber has not requested such SMS; and/or
(iv) does not contain truthful information about the name of the original sender; and/or
(v) results in a situation whereby a Mobile Subscriber is unable to terminate receipt of such SMS; and/or
(vi) is unlawful or fraudulent according to legislation of the territory in which the Mobile Subscriber to whom the corresponding message is designated is located; and/or
(vii) unsolicited electronic junk mail or junk newsgroup postings.
1.2 Headings are inserted for convenience of reference only and do not affect the meaning or interpretation of the Agreement.
1.3 Words and phrases defined in any part of the Agreement shall bear that meaning elsewhere in the Agreement.
1.4 The masculine gender includes the feminine and neuter, and the singular number includes the plural, and vice versa.
2.SERVICE AVAILABILITY AND OPERATIONAL ISSUES
2.1 MMDSmart will make the Services available to the Customer using reasonable skill and care. The Customer however acknowledges and agrees that the availability of the Services, and the Customer’s ability to access and/or use the Services may depend upon factors beyond reasonable control of MMDSmart, including (but not limited to): (i) factors affecting the operation of the Services such as geographical or topographical shortcomings in the network of any Mobile Operator, network capacity, physical obstructions or atmospheric conditions; or (ii) factors preventing End Users from receiving SMS messages such as the terms and conditions of an End User service provider.
2.2 MMDSmart does not therefore guarantee: (i) that the Services will be available to the Customer at all times or that they will be free from faults or interruptions; (ii) receiving by any intended recipient and/or End User of any SMS message sent using the Services (as applicable); (iii) the delivery of SMS messages to the End Users who are in roaming or the delivery of the concatenated SMS consisting of more than 4 (four) parts, as this depends on the destination Mobile Operator’s rules of A2P SMS processing.
2.3 MMDSmart shall not be in any way liable for any failure to make the Services available to the Customer to the extent that such failure results from a technical or other failure on the part of any Mobile Operator or any other event which is beyond the reasonable control of MMDSmart. MMDSmart provides all services “as is” and “as available”, and MMDSmart hereby does not warrant, represent or guarantee, whether expressly or by implication, that any Services are free of errors or interruptions, always available, fit for any purpose, are secure or do not infringe any third-party rights.
2.4 MMDSmart may, at its sole discretion, alter or improve the Services it provides to the Customer at any time, and will make every effort not to materially affect the nature or detract from the functionality of the Services it provides to the Customer.
2.5 MMDSmart may temporarily suspend the Services for routine or maintenance or upgrade reasons (network alterations or because of emergency). In case of planned maintenance MMDSmart will, in so far as it is reasonably possible, provide the Customer with a reasonable notice prior to any such suspension. In case of any unplanned maintenance MMDSmart will endeavor to provide notice to the Customer as soon as possible depending on the circumstances which caused the unplanned maintenance event, failure to provide a notice in said circumstances shall not be considered as a breach of the Agreement by MMDSmart.
2.6 The Customer shall be responsible for procuring, at their own expense, and providing the necessary facilities, suitable hardware or communications equipment, switching, circuits and all associated facilities required for their access to the MMDSmart Platform.
2.7 MMDSmart reserves its right to suspend its Services to the Customer should Customer’s account utilized in the provision of MMDSmart Service be inactive through a period of 6 (six) months. The Customer can try reactivate the account with a request to MMDSmart sent 5 (five) Business Days prior to the required reactivation. For avoidance of doubt, the decision whether to reactivate the account shall remain at MMDSmart sole discretion and MMDSmart shall not be, in any way, obligated to reactivate the account.
2.8 The Customer shall inform MMDSmart by email or phone as soon as practicable of any fault of which the Customer is informed or becomes aware of during the use of the Service.
2.9 MMDSmart will provide the Customer with a possibility to use an Alphanumeric Name in A2P messages.
2.10 MMDSmart operates MMDSmart Platform that enables its Customers to create and manage content and then initiate the transmission of such content over wireless networks for delivery to mobile devices. If such content transmission has been failed due to the reasons of inoperability of MMDSmart Platform, MMDSmart will return to the Customer the Balance for an unused portion of the service.
3.1 MMDSmart may require certain information in order to provide Services. The Customer must ensure that the provided information is complete and accurate. MMDSmart may suspend or terminate any Service if Customer gives false, misleading information or information that is not complete and accurate. The Customer warrants that all information provided to MMDSmart is complete and accurate, and Customer indemnifies MMDSmart in full against any liability that may arise as a result of the Customer’s breach of this clause or Customer’s failure to provide complete and accurate information. The Customer shall promptly notify MMDSmart if any of their relevant information changes.
3.2 MMDSmart will provide the Customer a username and password for each account.
3.3 The Customer must: (i) keep their username and password confidential; (ii) not circumvent, or attempt to circumvent, user authentication systems of MMDSmart; (iii) notify MMDSmart immediately after the Customer becomes aware, or should reasonably be aware, that the username and password have been stolen, lost, or disclosed to a third party, or if there is any unauthorized use of Customer’s account, or any other breach of security.
3.4 The Customer is solely responsible for all use (whether or not authorized) of MMDSmart Services under Customer’s account(s), including the quality and integrity of Customer Data and each of their applications, and for all payments that occur on Customer’s account(s). Customer is also solely responsible for all use and for all acts and omissions of anyone who has access to Customer’s application. The Customer agrees to take all reasonable precautions to prevent unauthorized access to or use of MMDSmart Services and will notify MMDSmart promptly of any unauthorized access or use. MMDSmart shall not be liable for any loss or damage arising from unauthorized use of Customer’s account.
3.5 The Customer is liable for any damage, loss, or costs that MMDSmart or any third party may sustain as a result of any of Customer’s actions, or any actions of a third party using Customer’s username and password, account name, or account information.
3.6 The Customer shall indemnify MMDSmart against any claim brought from any use of Customer’s username and password, account name, or account information by a third party, or as a result of Customer’s violation of this Section 3.
4.1 Customer Data consists of information made available to MMDSmart through Customer’s use of the Services under this Agreement, which includes information such as Customer’s name, contact information, billing records, messaging logs, and traffic routing information, as well as the content of communications sent through or integrated with MMDSmart Services, such as message bodies.
4.2 Except as agreed by MMDSmart and Customer in writing, MMDSmart may periodically delete Customer Data. Further data storage is not guaranteed by MMDSmart, and Customer agrees that MMDSmart shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur in relation to the loss or deletion of Customer Data.
4.3 MMDSmart shall keep Customer Data confidential in accordance with Clause 11 [Confidentiality] of this GTC. The Customer further acknowledges and agrees that MMDSmart may access or disclose Customer Data, including the content of communications stored on MMDSmart systems, if: (i) MMDSmart believes that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process, or government request, (ii) to enforce MMDSmart agreements and policies, (iii) to protect the security or integrity of MMDSmart services and products, (iv) to protect MMDSmart, its other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which MMDSmart believes in good faith requires MMDSmart to disclose data to assist in preventing a death or serious bodily injury.
5.1 The Customer agrees not to transfer, resell, lease, license or otherwise make MMDSmart Services available to third parties or offer them on a standalone basis.
5.2 The Customer shall not attempt to use MMDSmart Services to access or allow access to emergency services.
5.3 The Customer shall ensure that Services are used in accordance with all applicable laws, codes of practice of Mobile Operators and third-party rights, as well as these GTC that may be amended from time to time.
5.4 The Customer shall ensure that MMDSmart is entitled to use Customer Data, including content of communications stored on MMDSmart systems, as needed to provide the Services, and shall not use the Services in any manner that violates any applicable law.
5.5 The Customer shall not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with MMDSmart Services.
5.6 If the Customer purchases a short code, then the Customer shall not change their use of that short code from the use stated in Customer’s application to the carrier for approval of the short code without first obtaining an amendment to its application or re-applying to the carrier for approval of the short code under the new use.
6.1 The Customer shall not use any Services and the MMDSmart Platform for any illegal, immoral, improper, fraudulent purpose or in any manner which contravenes applicable laws and codes, regulatory requirements of the appropriate jurisdiction or Mobile Operator requirements as they exist and as they change over time.
6.2 The Customer shall not use the Services and shall take all reasonable precautions to ensure that the Services and MMDSmart Platform shall not be used to send SMS messages that may be deemed illegal in any applicable jurisdiction, such as (but not limited to) messages containing contents (i) derogating or distorting a nation or race, or of derogatory or distorting nature of any kind, e.g., based on a person’s sex, sexual orientation, race, or nation; AND/OR (ii) of pornographic, indecent, immoral, abusive, obscene, menacing character or otherwise offensive nature; AND/OR (iii) of defamatory or libelous or slanderous nature; AND/OR (iv) of fraudulent nature of any kind; AND/OR (v) promoting criminal activities of any kind; AND/OR (vi) promoting ethnic or religious hostility or intolerance; AND/OR (vii) promoting violence, political unrest, or war; AND/OR (viii) endangering national or international security, national integrity, or the constitutional order of any country.
6.3 The Customer shall not use the Services and shall take all reasonable precautions to ensure that the Services and the MMDSmart Platform shall not be used to send SMS messages that may contain messages with content that may be deemed malicious or harmful, or may be able to damage any electronic system or network, including any mobile device, Mobile Operator’s network or equipment, or equipment of MMDSmart or Mobile Subscriber of any kind in any way, such as (but not limited to) messages containing viruses, Trojans, spy programs or generally malware of any kind.
6.4 The Customer shall not use the Services or permit the Services to be used in a manner that infringes the intellectual property rights of MMDSmart or any other proprietary rights of any third party.
6.5 The Customer undertakes to send SMS messages to the Mobile Subscribers which provided prior due consent to receive such SMS messages. The Customer shall not use the Services or permit the Services to be used to send SMS messages to any End User for marketing purposes without that End User’s explicit request for, or prior consent, to receiving them. If the Customer is sending any SMS messages for commercial purposes to any of their End Users, the Customer must abide by the telephone marketing practices of the jurisdiction of End Users, including but not limited to obtaining prior express written consent from those End Users, and give all End Users the right to opt out of receiving any further SMS messages sent by the Customer for commercial purposes (and the Customer shall promptly process any End User’s election to opt out).
6.6 The Customer shall under no circumstances send unsolicited traffic or transfer SMS messages that may be qualified as SPAM under applicable law to the MMDSmart Platform. In the event that MMDSmart receives a complaint from any Mobile Operator or becomes otherwise aware that the Services have been used for SMS messages containing prohibited content as described in this Section 6 [Messaging Restrictions], MMDSmart will inform the Customer of such and the Customer shall stop sending prohibited messages immediately upon receiving MMDSmart’s notification.
6.7 The Customer shall take all necessary measures, procedures, and technical precautions for the protection and confidentiality of information and data of End Users. The Customer warrants that they are the sole owner or licensor of all rights in Customer’s End User data or that Customer has obtained all necessary rights, licenses, and consents from all relevant third parties to enable the Customer, MMDSmart, and sub-contractors of MMDSmart to use the End User data for the purposes of this Agreement.
6.8 The Customer shall, upon request, provide MMDSmart or any Mobile Operator or Regulator or any legal authority with any information relating to Customer’s use of the Services that the requesting party requires. The Customer is responsible for ensuring that any information relating to the Customer’s End Users, including (but not limited to) Customer’s End User Data, is accurate and complete.
6.9 The Customer, prior to the commencement of their use of the Service, will inform in writing of the general content of its traffic and will also provide any information reasonably requested by MMDSmart.
6.10 The Service is used by the Customer in order to be connected with mobile phone networks globally, and the Customer agrees to comply with the policies of acceptable use of these networks and all applicable laws, regulations and codes. If the Customer uses the Service in order to create a database of contacts for use in marketing purposes, the Customer must notify the End Users that the use of the Service will be made for advertising purposes. The Customer will have to ensure that all their activities are compliant with all legal provisions about the protection of personal data.
6.11 The Customer shall (i) comply with and observe at all times all applicable laws, regulations and codes and any directions, recommendations, and decisions of any Regulator; (ii) comply with all reasonable directions and instructions issued by MMDSmart from time to time in relation to the Services; (iii) not act in any manner likely to bring MMDSmart, the Service, or any Mobile Operator into disrepute.
6.12 The Customer acknowledges that they shall be fully responsible for the content of SMS messages and undertakes to examine and review the messages before transmission. The Customer also undertakes to protect and compensate MMDSmart for any issues or disputes or claims brought by any third party due to the content of such messages in accordance with the Section 10 [Indemnification and Limitation of Liability] of these GTC.
6.13 If any provisions in this Section 6 are violated, MMDSmart shall have the right to immediately suspend (i.e. temporarily stop providing the Service) or terminate the Agreement, at its sole discretion, without prejudice to any damages that MMDSmart may be entitled to claim, and any penalties shall not be applicable to MMDSmart in this case.
6.14 The Customer acknowledges that the commitments and obligations contained in this Section 6 are binding and valid and undertakes to implement these provisions in case of any dispute.
6.15 Customer acknowledges that all of the content and message profiles sent by Customer on MMDSmart’s systems are subject to comply with the terms of acceptable use described in these GTC. MMDSmart reserves the right, at its sole discretion, to monitor Customer’s messaging traffic, and determine if a Service is being used in compliance or in violation of the GTC. MMDSmart reserves the right, at its sole discretion, to (i) delay the delivery of the SMS messages from the Customer to End Users if additional approval for Customer’s messaging traffic is required from MMDSmart’s carrier or service provider partners, or (ii) cancel the delivery of the SMS messages from the Customer to End Users in case of any violations or attempted violations of the GTC by Customer, or its customers or End Users, or partners, or any third party acting on behalf of any of the aforementioned.
6.16 Customer acknowledges and agrees that SMS messages to or from Customer or Customer’s End Users, customers and/or subscribers may be blocked by carriers or other service provider partners for reasons known or unknown to MMDSmart; MMDSmart is under no obligation to investigate or remedy any such blockage for Customer or any of Customer’s End Users, customers or subscribers. MMDSmart and its suppliers do not guarantee delivery of any messages that are found to not be compliant with the defined terms of acceptable use, or the operating policies of its carrier or service provider partners.
7.FEES AND CHARGES, PAYMENT RELATED PROVISIONS, TAXES
7.1 Pre-pay Customers. Unless otherwise specified in the MSA, the Customer will pay MMDSmart the fees and all other amounts payable to MMDSmart through prepayments made by the Customer on Customer’s account. The fees shall be calculated in accordance with the rates and pricing which MMDSmart makes available to the Customer (by means determined by MMDSmart) from time to time.
Where the Customer seeks to utilize the Service, they must ensure that the Balance of prepayment monies received by MMDSmart from Customer is in credit. Such prepayments shall be in amounts of Customer’s sole discretion. The Service will be made available to the Customer after the payment is transferred and received to designated bank account of MMDSmart. MMDSmart automatically deducts the cost of the pre-paid Services rendered to the Customer in accordance with the applicable prices provided to the Customer.
MMDSmart reserves the right to suspend the Services immediately in case of a full consumption of the prepaid Balance. Cancellation of suspension shall be approved by MMDSmart upon submitting further payments until reaching positive Balance. Any and all charges that accrue in excess of the prepaid Balance shall be due on the next Business Day following depletion of the prepaid Balance. Date of payment shall be the date when MMDSmart gets the whole amount of the prepayment on its account. The Customer shall be solely liable for estimating the traffic volumes, prepayment usage, and submitting the prepayments and MMDSmart shall not be responsible of sending any notifications or reminders to the Customer to this effect.
The Customer shall not earn interest on any credit Balance held by MMDSmart. The Customer shall not be entitled to a refund of an unused credit Balance under any circumstances. At the end of each month, any remaining prepaid Balance shall be rolled over to the next month. MMDSmart may deduct or offset from the Customer’s credit Balance, any sums the Customer owes to MMDSmart, which may include but are not limited to fees and taxes. All recurring fees and one-time fees may be deducted in advance of the applicable Service being provided, and all non-recurring fees may be deducted after the applicable Service is provided. Payments received from the Customer will be deposited in the currency selected during Customer’s account creation. MMDSmart supports USD and EUR as standard. Every Service on a Customer’s account will deduct fees, taxes, and other sums due from the same credit Balance.
7.2 Post-pay Customers. If the Customer has provided financial guarantees that warrant an MSA with a post-pay option, the Customer shall pay MMDSmart the fees and taxes and all other invoiced amounts within 7 (seven) days of invoice date, without deduction. Invoices will be sent to the Customer by email and shall be deemed received on the date sent. The fees shall be calculated in accordance with rates and pricing which MMDSmart makes available to the Customer (by means determined by MMDSmart) from time to time. All non-recurring fees may be invoiced monthly in arrears, and all recurring fees and one-time fees may be billed in advance. All fees, taxes, and other sums due under this Agreement are quoted and payable in Euros (EUR). The Customer shall make payments in accordance with the invoice issued by MMDSmart via bank transfer to the bank account of MMDSmart specified in the invoice.
MMDSmart will invoice the Customer for the Services monthly in arrears or once the Credit Limit is reached, whichever occurs earlier. The invoice period is from 00.00.00 AM of the 1st day of the calendar month until 11.59.59 PM of the last day of the same calendar month.
Credit Limit. Customer’s Credit Limit shall be as notified by MMDSmart to the Customer from time to time. If at any time MMDSmart determines that the sum (the Accrued Liability) of (i) total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage of the Customer, exceeds the Credit Limit, Customer shall pay, no later than twenty-four (24) hours from receiving a notice from MMDSmart, such amount as determined by MMDSmart which is necessary to (i) reduce the Accrued Liability to the same or less than the Credit Limit and, (ii) ensure that the Credit Limit shall not be exceeded prior to the next invoice due date.
7.3 Fee Changes. MMDSmart, at its sole discretion, may change its rates and pricing used to calculate the fees at any time and will notify the Customer of such change in advance via email. The Customer is responsible to provide an eligible email address for price change notifications on time and in advance. All prices specified in the price notifications are an integral part of the Agreement. Customer’s continued use of the Services after a price change becomes effective constitutes the Customer’s consent of the said amendments.
7.4 MMDSmart reserves its right to suspend performance of the Services under the present Agreement and/or temporarily suspend the Services associated with Customer’s account without prior notice to the Customer, in cases where the Customer’s use of Services exceeds the amounts prepaid by Customer, or Customer fails to pay any amounts due on or before invoice due date, such suspension shall be effective until the outstanding payment is received in full. MMDSmart shall have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that the Customer may incur with connection with any suspension of MMDSmart Services pursuant to this Section.
7.5 MMDSmart shall be entitled to charge the Customer late payment fee at the rate of 1.5% per month on any overdue amount calculated from the payment due date until the date of actual payment. The Customer agrees to pay issued invoices within the time frame defined in this Agreement.
7.6 All charges, fees, and payments for the Services are exclusive of any applicable taxes, including sales, value-added, or other taxes. The Customer is solely liable for and shall pay all applicable taxes associated with the Customer’s access to and use of the Services and shall not deduct any such amounts or any other withholdings, set-offs, or deductions from amounts Customer owes MMDSmart, but will not be responsible for taxes based on net income of MMDSmart. If the Customer is required by law to deduct or withhold any taxes, duty, or levy from any amounts payable to MMDSmart, such amount shall be increased as necessary so that MMDSmart receives an amount equal to the sum it would have received without any deduction or withholding. In that case the Customer shall provide a copy of the withholding tax certificate to MMDSmart without undue delay. If for any reason a taxing jurisdiction determines that the Customer is not exempt from those taxes and assesses those taxes, the Customer agrees to pay MMDSmart those taxes, plus any applicable interest or penalties.
7.7 Each Party shall bear the costs imposed by their own bank when making and receiving payments under this Agreement, while the Customer shall be solely responsible for payment of all bank charges of intermediary bank. Any shortfall between the invoiced amount and the amount received by MMDSmart shall constitute an outstanding amount and will be carried forward.
7.8 MMDSmart may set off amounts owed by the Customer under the Agreement or any other agreement Customer has with MMDSmart or any of its affiliates.
7.9 MMDSmart will send invoices to the Customer by email to the non-personal email address specified in MSA. The date of sending the Invoice by MMDSmart shall be considered the date of receiving of the Invoice by the Customer. The Customer shall notify MMDSmart regarding any change of their designated email address used for receiving the invoices.
7.10 In the event of any errors and/or omissions in MMDSmart invoices are found, MMDSmart reserves its right to notify the Customer in writing within 90 (ninety) calendar days from the date of the said invoice (whether or not the payment thereof is settled) and perform a recalculation of said invoice.
7.11 No omission or delay by MMDSmart in invoicing any sums and/or deducting them from a credit Balance shall prohibit MMDSmart from raising an invoice and/or deducting them from a credit Balance at a later date, nor shall it relieve the Customer of their liability to pay.
7.12 The Customer shall be solely responsible for billing and collection from their own customers. The Customer shall be fully responsible for payment to MMDSmart on the payment due date in accordance with the Agreement regardless of collection of payment from their customers, in no event will payment to MMDSmart be delayed or waived due to failure by customers to pay the Customer, and Customer will be fully liable to MMDSmart for any and all payments.
7.13 The Customer shall at all times comply with ongoing credit approval procedures and policies of MMDSmart. If the financial circumstances or payment history of the Customer is or becomes unacceptable to MMDSmart in its reasonable business judgment, MMDSmart may in its sole discretion require from the Customer reasonable additional security for payments due hereunder in the form of a cash deposit, guarantee, irrevocable clean standby letter of credit, or other means. Failure to provide additional security for payments as requested shall give rise to suspension of Service.
7.14 Per SMS message fees:
(a) Per SMS message fees are in accordance with the latest version of MMDSmart price and coverage list, which MMDSmart makes available to the Customer (by means determined by MMDSmart) from time to time, or prices which are quoted by designated MMDSmart staff to the Customer and documented in Appendix.
(b) Unless otherwise specifically specified by prior agreement, MMDSmart will charge for all SMS messages sent by the Customer to MMDSmart Platform, and the Customer shall pay for all SMS sent to MMDSmart Platform.
(c) Any SMS that is rejected by the Operators or third-party providers due to SPAM or not compliance with local regulation (due to law requirements or third-party providers) is, however, chargeable by MMDSmart.
(d) Concatenated SMS are billed as separate standard SMS of 140 bytes message length. SMS sent to multiple Mobile Subscribers shall be billed separately for each Mobile Subscriber.
7.15 MMDSmart invoices and billing records are based on GMT+0.
7.16 For Customers who pay by credit card, their credit card statement will read ALW*messagewhiz18882551137.
7.17 Additional features or functionality. MMDSmart may make available through the Services additional features or functionality (e.g. unsubscribe from receiving of messages) and additional fees may be applicable to such features or functionality. Customer’s use of additional features or functionality are subject to these GTC and to the applicable fees. Customer agrees to pay any applicable fees in connection with their order of any additional features or functionality.
7.18 All Sales Final. See Payment and Refund Policy of MMDSmart for more information about Customer’s rights to cancel or return purchases for a refund. Except as expressly set out in Payment and Refund Policy of MMDSmart, all sales are final, and no returns or refunds are permitted.
7.19 Recurring Payments. The refund for cancelled broadcast by Customer shall not affect any recurring payment for Customer.
7.20 MMDSmart reserves the right to adjust its fees paid by the Customer in the event of irregular traffic distribution among the networks in a specific destination country and Customer agrees to bear the associated costs.
8.1 The fees payable by the Customer shall be calculated by reference to data recorded or logged by MMDSmart and not by reference to any data recorded or logged by the Customer. Any invoices issued by MMDSmart shall, save in the case of manifest error, be final, conclusive, and binding on the Customer. The Customer may dispute an invoice in good faith, if disputed amount is larger than 3% (three percent) of the total invoiced amount.
8.2 The Customer must notify MMDSmart in writing within 30 (thirty) days of the invoice date if they dispute any portion of the invoice, otherwise Customer shall be deemed to have irrevocably waived all rights and claims concerning such invoice.
8.3 The Customer must send the written dispute notice to MMDSmart at email@example.com, and such dispute notice shall include at least the following: invoice number, invoice period, total disputed amount, and reason of a dispute. A pending billing dispute shall not exempt the Customer from timely payment of any undisputed amounts owed.
8.4 Upon receipt of Customer’s dispute notice by MMDSmart, the Parties shall discuss and attempt to resolve the dispute in good faith in a timely manner. If the Parties fail to resolve the dispute within 30 (thirty) days of the receipt of dispute notice, the Parties agree to escalate disputes to their respective management, who shall use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both Parties within 15 calendar days from the escalation date. Neither Party shall pursue or commence proceedings regarding the dispute in any court prior to engaging in such consultations and negotiations.
8.5 Any disputes that cannot be resolved in accordance with the foregoing shall be handled in accordance with Section 14 below.
Except as expressly provided in the Agreement, MMDSmart makes no warranties, representations, conditions, or other terms in connection with the provision of Service as contemplated herein and specifically excludes and disclaims any and all warranties, whether written or oral, contractual, express, or implied, or otherwise including without limitation those with respect to the description, merchantability, non-infringement, completeness, quality (including any warranties as to latency and throughput), fitness for any particular purpose or use or local access, warranties related to third-party equipment, material, services, or software, or as to any other matter. MMDSmart does not warrant that the Services will meet the Customer’s requirements except as may be specifically provided for in the Agreement, or that the Services will prevent unauthorized access by third parties. Services are provided “As Is” to the fullest extent permitted by law. The “Customer” shall be deemed to include the Customer and Customer’s respective directors, employees, officers, and agents, and any person or entity assisting the Customer in their performance or obligations under this Agreement. “MMDSmart” shall be deemed to include MMDSmart and its respective directors, employees, officers, and agents, and any person or entity assisting MMDSmart in its performance or obligations under this Agreement.
10.INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 Indemnification. The Customer shall defend and handle at Customer’s own expense, fully indemnify and hold MMDSmart and its affiliates, their respective officers, directors, employees and agents, subcontractors, suppliers harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to the Customer’s activities under this Agreement or the Customer’s acts or omissions in connection with the provision of its application, including, without limitation, any intellectual property claims relating to the Customer’s application and any violation by the Customer or Customer’s end users of the terms of this Agreement (“Claim”). MMDSmart and its affiliates will cooperate as fully as reasonably required in the defense of any Claim at Customer’s expense. MMDSmart reserves the right, at Customer’s expense, to retain separate counsel for itself in connection with any Claim or, if the Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which Customer is a named party and that is otherwise subject to indemnification under this Section 10.1. The Customer will pay all costs, reasonable attorneys’ fees, and any settlement amounts or damages awarded against MMDSmart in connection with any Claim. The Customer shall also be liable to MMDSmart for any costs and attorneys’ fees MMDSmart incurs to successfully establish or enforce its right to indemnification under this Section 10.1.
10.2 MMDSmart shall not be responsible for non-delivery of any SMS message if the End User does not activate their mobile device, or if such mobile device is unable to receive such SMS message, or for any other reason resulting in the failure of the End User’s mobile device to receive such SMS message. MMDSmart shall not be responsible nor be liable to the Customer for faults in the delivery, transmission, re-transmission, or reception of any SMS message attributable to any Mobile Subscriber.
10.3 MMDSmart shall in no way or manner be held responsible for the content of any of the SMS messages transmitted by the Customer. The Customer acknowledges that the role of MMDSmart under this Agreement is limited to providing a line of communication through the MMDSmart Platform to broadcast a prepared and reviewed by Customer SMS messages and under the responsibility of the Customer alone. MMDSmart shall not be responsible nor be liable to the Customer for any errors, changes, or incorrect display of the SMS message content because of processing of such content by any mobile telecommunications systems or networks, which MMDSmart does not operate.
10.4 Under no circumstance shall MMDSmart be liable to the Customer or their customers as a result of the use or misuse and/or reliance on the Services by the Customer or their customers to commit an offense of any nature, be it civil or criminal, or as an accomplice, aider, or abettor to such offense.
10.5 MMDSmart Services are not intended to support or carry emergency SMS messages to any emergency services. Neither MMDSmart nor its representatives shall be liable under any legal or equitable theory for any claim, damage, or loss (and Customer shall hold MMDSmart harmless against any and all such claims) arising from or relating to the inability to use MMDSmart Services to contact emergency services.
10.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MMDSMART OR MMDSMART’S PARTNERS, SUPPLIERS, LICENSORS OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF MMDSMART HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 10, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL MMDSMART BE LIABLE TO THE CUSTOMER FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY THE CUSTOMER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM.
10.7 While utilizing services of third party providers, including, but not limited to telecom operators, data network providers, hosting services providers, messaging providers (like WhatsApp, WeChat, Viber, Telegram, etc.), the Customer acknowledges the acceptance of both MMDSmart and third party providers Terms & Conditions, the consent on possible usage restrictions and limitations, the responsibility for penalties imposed by those third party providers due to the breach. The Customer undertakes to indemnify and hold harmless MMDSmart for any and all liability, costs and expenses imposed by and/or through third party providers in relation to the Customer’s activities against and through such third party providers, or as a result of non-compliance with these Terms & Conditions by the Customer.
11.1 The Parties shall treat all material and information, including this Agreement, which is delivered by the other Party in order to perform its obligations under this Agreement, as confidential. Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and will not disclose such information to any third party without the other Party’s prior written consent. Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each Party may disclose the Confidential Information of the other Party, in whole or in part, to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either Party may disclose the Confidential Information of the other Party as required by law, upon prior written notice to the other Party (where allowed by law); provided that such Party shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
11.2 Confidential Information shall not include (i) information which was in the public domain at the time of disclosure, (ii) information which, though originally Confidential Information, subsequently falls into the public domain other than a result of any breach of this clause or any other duty of confidence, (iii) information received by a Party from a third party, without any breach of this clause or any obligation of confidentiality, (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
11.3 At the disclosing Party’s written request at any time, the receiving Party shall promptly return the Confidential Information to the disclosing Party or certify in writing to the disclosing Party that the Confidential Information has been destroyed.
11.4 Each Party agrees that it will not, without the prior written consent of the other, issue any press release or announcement or otherwise disclose the existence or nature of this Agreement and/or proposed business arrangement.
11.5 The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching Party shall be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
12. INTELLECTUAL PROPERTY
Intellectual Property Rights shall mean patents, trademarks, contents, service marks, copy “property rights”: moral rights, confidential information and any other intellectual property rights, whether registered or not registered or capable of registration and subsisting in any part of the world, together with any or all goodwill related thereto, which the Party bear full responsibility for such contents and undertake to obtain all permits, licenses and intellectual property rights and related governmental approvals necessary for the ongoing legal execution of this Agreement and related annexes. Intellectual Property Rights in all software, trade and service marks, brands, names, logos, inventions, patents, copyrights, registered designs, design rights, information, technology and all other proprietary or intellectual property rights or data whatsoever supplied by either Party under the Agreement shall remain the property of that Party or its licensors. Any Intellectual Property Rights to any developments shall be the property of the developing Party.
13.TERMINATION, SUSPENSION AND SURVIVAL
13.1 The terms and conditions of these GTC shall remain in force until the expiry or termination of the Agreement.
13.2 Either Party may terminate this Agreement for any reason upon 60 days written notice to the other Party.
13.3 This Agreement may be terminated by (i) either Party if the other Party has breached any material obligations under this Agreement and has failed to cure such breach to the reasonable satisfaction of non-breaching Party within 10 (ten) Business Days of receiving written notice to do so; (ii) by either Party to the extent permissible by law, the other Party ceases to trade or to pay its debts in the normal course, enters into or proposes to enter into a voluntary arrangement or composition with its creditors, becomes insolvent, bankrupt, or goes into liquidation (other than for the purpose of solvent reconstruction or amalgamation), or has a receiver, administrator, trustee or similar officer appointed in respect of all or part of its business and assets, or anything occurs analogous to the foregoing under the laws of the place where that Party is established or otherwise ceases to be a validly existing corporation; (iii) by either Party in an event of Force Majeure, and this event lasts for a period longer than 30 (thirty) calendar days; (iv) by MMDSmart if the Customer breaches their obligations under these GTC. If MMDSmart terminates this Agreement due to Customer’s material breach, MMDSmart may terminate or suspend Customer’s account(s) as well.
13.4 In addition to suspension of the Services for maintenance as described in clause 2.5 and for non-payment of fees as described in clause 7.4, MMDSmart may also suspend the Services immediately and without incurring any liability for cause if: (i) the Customer violates (or gives MMDSmart reason to believe the Customer has violated) these GTC; (ii) there is reason to believe the traffic created from Customer’s use of the Services or Customer’s use of the Services is fraudulent or negatively impacting the operating capability of MMDSmart Services; (iii) MMDSmart determines, in its sole discretion, that providing the Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; (iv) MMDSmart is entitled to terminate this Agreement under clause 13.3; (v) MMDSmart is obliged to comply with an order, instruction, or request of government, emergency services organization, or other competent authority. If MMDSmart suspends its Services to Customer account, it will make a reasonable attempt to notify the Customer.
13.5 In addition to any other remedies provided in this Agreement, upon expiration or termination of this Agreement, all sums due and payable by the Customer under this Agreement shall become immediately due and payable.
13.6 Termination or expiration of this Agreement shall not affect any accrued rights or obligations or those intended to be of a continuing nature or to come into force upon termination or expiration. Upon termination or expiration of this Agreement, Customer’s payment obligations and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 5 (Restrictions), Section 9 (Warranties), Section 10 (Indemnification and Limitation of Liability), Section 11 (Confidentiality), Section 12 (Intellectual Property), Section 13 (Termination, Suspension and Survival) and Section 15 (General Provisions).
14.1 This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by and interpreted in accordance with the laws of England & Wales.
14.2 The Parties shall endeavor to resolve any controversy through good faith negotiations. In the highly unlikely event that the Parties are unable to resolve the matter within 30 (thirty) days of the matter being referred to them, or any other period agreed upon, such matter shall be resolved exclusively by arbitration.
14.3 All disputes between the Parties arising out of or in connection with the present Agreement shall finally be settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce. The place of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. Any arbitration award may, if necessary, be enforced by any court or authority having jurisdiction. The arbitral award shall be final and binding on the Parties.
15.1 Waiver. The waiver by MMDSmart of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default of breach. The failure by MMDSmart to enforce or to require the performance at any time of any provision of this Agreement shall not be construed as a waiver of any other provision and shall not affect either the validity of this Agreement or any part hereof or the right of MMDSmart thereafter to enforce or insist upon strict adherence each and every provision of this Agreement. Any waiver must be in writing and signed by MMDSmart to be legally binding.
15.2 Entire Agreement. These GTC together with the MSA and all Annexes/Exhibits/Supplementary Agreements attached to the MSA represent the entire understanding and agreement between the Parties in relation to the subject matter hereof and supersede all other agreements, proposals, statements, sales materials and representations, whether verbal or written. No oral or written information or advice given by MMDSmart, its agents or employees will create a warranty or in any way increase the scope of the warranties in the Agreement.
15.3 Unenforceability. If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of the Agreement shall continue in full force and effect.
15.4 Relationship of the Parties. MMDSmart and the Customer are independent contractors in the performance of each and every part of the Agreement. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. MMDSmart and Customer will be solely responsible for all of their respective employees and agents and their respective labor costs and expenses arising in connection with their respective employees and agents. MMDSmart and the Customer will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of their respective activities, or those of each of their respective employees or agents, in the performance of this Agreement. Neither the Customer nor MMDSmart has the authority to commit to the other in any way and shall not attempt to do so or imply that it has the right to do so.
15.5 Assignment. The Customer shall not assign or otherwise transfer this Agreement, in whole or in part, without prior written consent of MMDSmart. Any attempt by the Customer to assign, delegate, or transfer this Agreement will be null and void. Subject to this Section 15.5, this Agreement shall be binding on both the Customer and MMDSmart and each of their successors and assigns. Notwithstanding the foregoing, the Customer acknowledges that MMDSmart shall be entitled, by written notice to the Customer, to assign any or all of its rights and obligations under this Agreement to another entity: (i) within its group of companies as part of a bona fide reconstruction of that group; (ii) which acquires all or substantially all of MMDSmart assets entailed in the performance of the Service.
15.6 Force Majeure. Any delay or failure by either Party hereto in performance hereunder shall be excused if and only to the extent that such delays or failures are caused by occurrences beyond such Party’s control, including acts of God, acts or terrorism, fire, explosion, vandalism, fiber optic cable cut, storm, extreme temperatures or other similar catastrophes; any law, order, regulation, direction, action or request of any national government, including state, provincial, and local governments having jurisdiction over either Party, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies, insurrections, riots, wars (whether declared or not), or strikes, lockouts, work stoppages or other similar labor difficulties; actions or inactions of a third party provider or operator of facilities employed in provision of the Services (“Force Majeure”) which cannot be controlled by such Party; provided that the Party seeking to excuse its performance shall promptly notify the other Party of the cause therefore, such performance shall be so excused during the inability of the Party to perform but for no longer period, and the cause thereof shall be remedied so far as possible with all reasonable dispatch.
Market conditions and/or fluctuations (including a downturn of Customer’s business) are not deemed Force Majeure events.
15.7 Notices. Any notice required or permitted to be given under this Agreement shall be given in writing and in English to the receiving Party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier, or by e-mail upon confirmation of receipt.
15.8 Compliance with Laws. Both Customer and MMDSmart will comply with the applicable law relating to each of their respective activities under these GTC, including privacy and data protection laws. If Customer is collecting data from End Users located in the European Union (“EU”), Switzerland, or the United Kingdom, additional terms for data processing apply in accordance with the European Union’s General Data Protection Regulation (the “GDPR”). Unless otherwise agreed to in writing between the Parties, those terms and instructions are available here.