By registering for, or using any of SMS Gate services you (hereinafter referred to as "You", "Your" or "Yourself") agree that you have read, understand and accept these terms, regardless of how you registered for or use the services.
You may not use any of SMS Gate's services if You do not accept this Agreement and the terms therein.
If you concluded a written contract with us, you will also be bound by these terms. However, to the extent that there is a conflict between the written contract and these terms, the written contract will prevail.
The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Website. Your continued use of the Service after such posting will constitute acceptance by You of such amendments. It is Your responsibility to review these Terms of Service frequently and remain informed about any changes to them, so we encourage You to visit this page often.
As used hereunder, the following terms shall have the meanings specified below. Except where the context requires otherwise words in the singular shall include the plural and vice versa.
"Accessible Mobile Operators" shall mean the digital cellular networks accessible from SMS Gate Platform;
"Balance" shall mean the amount of money You paid SMS Gate less the value of the SMS You have sent or received to the SMS Gate Platform minus any monthly fees;
"SMS Gate Platform" shall mean the server, hardware, software and other equipment that SMS Gate uses in connection with performance of the Services.
"Information" shall mean any visual, textual data or other material made available through the access to the SMS Gate Platform granted to You under this Agreement;
"Mobile Operator" or "Operator" shall mean the legal entity which operates a mobile telecommunications system or network;
"Mobile Subscriber" shall mean a person having entered into an agreement with a Mobile Operator allowing it to access the Operator's network;
"Services" shall mean any service as defined in section 2;
"SMS" shall mean short message service sent by the SMS Gate Platform to a Mobile Subscriber (hereinafter "Mobile-Terminated SMS" or "SMS-MT");
"Service Provider" shall mean a provider of telecommunication services.
"Peer-to-Peer" shall mean messaging between one subscriber and another subscriber.
"Subscriber" shall mean a natural person who has made some identification known to a service provider, receives telecommunication services from said service provider and has been assigned a unique SMS-enabled long virtual number.
"Telecommunication Services" shall mean two-way text messaging services but may also include additional services, such as voice.
2- The Service
2.1 Outbound SMS, Inbound SMS and HLR Look-ups
2.2 The use of our APIs such Restful and SMPP and their respective documentation
2.3 The use of our website and help desk portals
3- Price and Payment Terms
3.1 The fees to be paid to SMS Gate by You are set forth on our website pricing page or communicated to You via email. SMS Gate has the right to issue a price change to You without notice.
3.2 Payments and payment terms to be made by You to SMS Gate for the Services are based on Prepay terms. SMS Gate shall not be obliged to perform any Services under this Agreement if You has not provided payments.
3.3 The prices for Outbound SMS set forth on our website pricing page or communicated to You via email shall apply for the quantity of messages submitted by You to the SMS Gate Platform.
3.4 All charges and fees for the Services are exclusive of any taxes, including sales, value-added, or other taxes. You shall be liable for and shall reimburse SMS Gate for all sales or value-added taxes imposed in connection with or arising from the provision of Services to You. You will provide SMS Gate sufficient information as to the timely payment of all applicable withholding taxes, if so required by SMS Gate.
3.5 SMS Gate has the right to charge You in arrears for interworking charges that Your traffic has generated in relation to sending to ported numbers. Such charges need to be based on Operator invoices and will be added to Your invoice the month after SMS Gate has received the Operator invoice. SMS Gate is obliged to inform You prior to adding such interworking related charges to Your invoice.
4- Your Obligations
4.1 Unless otherwise agreed between the Parties, You are responsible for providing suitable hardware or communications equipment, and for the provision of all infrastructure necessary to ensure Your access to the SMS Gate Platform. You are also responsible, at Your own expense, for the provision and the regular monitoring of telecommunication and access infrastructure between the Your operations centre and the SMS Gate Platform.
4.2 It is understood that the SMS shall include no reference whatsoever to SMS Gate or its trademarks.
4.3 You undertake that You will not use the Service for any illegal, immoral or improper 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 and undertake not to allow any third party to do so.
4.4 You will inform SMS Gate immediately if it has reason to believe that there is likely to be a use of the Service in any unauthorized fashion.
4.5 If paragraphs 4.3 and 4.4 above are violated, SMS Gate can immediately suspend (i.e. temporarily stop providing the Service) or terminate this Agreement, at its sole option, without prejudice to any damages that SMS Gate may be entitled to claim.
5.1 SMS Gate shall provide to Your Services that meet reasonable commercial standards. SMS Gate does not warrant that the Services will be fault-free, that it will be available continuously or that all the Accessible Mobile Operators will be reachable at all times.
5.2 SMS Gate cannot guarantee that the Services will never be faulty but will do its reasonable commercial efforts to correct reported faults and make the Services available as soon as SMS Gate reasonably can.
5.3 SMS Gate may temporarily suspend the Services for maintenance or upgrade reasons. SMS Gate will endeavor to give You 5 working days prior written notice of such suspension. It is understood that suspension of the Services for maintenance reasons, excluding force majeure events or serious outage of the Services (where outage means a situation where the Services can barely be operated if at all) shall usually be done during off peak hours (0:00-6:00 CET).
5.4 Except as expressly provided in this Agreement, SMS Gate makes no warranties, representations, conditions or other terms in connections with the Accessible Mobile Operators or the provision of service as contemplated herein and disclaims all terms not expressly contained herein, whether written or oral, contractual , express or implied, or otherwise including without limitation any warranties as to merchantability, quality (including any warranties as to latency and throughput) and fitness for a particular purpose or use.
5.5 SMS Gate is not responsible in any way for any mobile telecommunications systems or networks, which it does not operate and in particular for the network of the Operators. Therefore SMS Gate is not liable for the acts or omissions of other providers of telecommunication services (including suspension or termination of SMS Gate connections and/or contracts with any Operator) or for faults in or failures of their apparatus or network, and in general for any other technical reason attributable to Operator's network or telecommunication service provider.
5.6 Your acknowledges that SMS Gate has no control over the Information which passes through the use of the Services and that SMS Gate does not examine the use of such Information or the nature or the source of the Information. You shall be solely liable for the content of the Information and any other material transmitted by You or anyone else using the Services including but not limited to Mobile Subscribers. SMS Gate excludes all liability of any kind in connection with the transmission or reception of such content. In case the Information was found to be offensive or unacceptable by third parties, SMS Gate would be entitled, without owing any indemnity to You, with prior notice, to suspend (i.e. to temporarily stop providing the Services) or terminate the Services.
Indemnification and Liability
5.7 Notwithstanding anything else to the contrary in this Agreement, You will defend and handle at its own expenses, indemnify and hold harmless SMS Gate, parent companies, subsidiaries and affiliated companies, their respective officers, directors, employees and agents, subcontractors, suppliers (each, an "indemnified party") from and against any and all claims, demands, actions, damages, costs and expenses, or liability of whatever nature incurred or to be incurred by an indemnified party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines and penalties) arising out of or relating to (i) Your use of the Services other than as expressly authorized in this Agreement, (ii) Your infringement of any third party intellectual property rights in using the Services or the application, (iii) any breach of Your obligations under this Agreement, (iv) any claims arising from information, data, or messages transmitted by You using the Services, including, but not limited to, claims for libel, slander, infringement of copyright, and invasion of privacy or alteration of private records or data.
5.8 SMS Gate agrees to promptly notify You of any such third party claim, to permit You to control the defense and/or settlement of such claim and to assist You, at Your expense and reasonable request, in the defense and/or settlement of any such claim. You agrees that SMS Gate shall have the right to additionally participate, at SMS Gate expense, in the defense of any such claim through counsel of its own choosing.
5.9 Each party releases the other party from all claims that third parties bring against the other party, even if the claims are not brought against the other party after expiry of the Agreement.
5.10 Each party is liable for damages - regardless of the basis in law - only in the event of intent and gross negligence on its part, its statutory representatives or employees or in the event of a negligent breach of essential contractual duties.
5.11 A Party shall not be liable for any indirect incidental, consequential, exemplary, special or punitive damages incurred by the other party, including without limitation any loss of profit, revenue or income, loss or use of data, or interruption of business, however arising and whether in an action in contract or tort (including strict liability and negligence) or based on breach of any warrant, even if a Party has been advised of the possibility of such damages. A Party's total liability to the other Party under this agreement shall be limited to 10,000 € and each Party releases the other Party from all obligations, liability, claims or demands in excess of the limitation of liability. The Parties acknowledge that this is a reasonable allocation of risk.
5.12 The aforesaid limitations of liability do not apply to damage caused by the fault of any party, its statutory representatives or employees resulting from harm to life, physical harm or harm to health.
6.1 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. The Parties shall not disclose such confidential information to a third party without a prior written consent of the other Party.
6.2 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) information that is required to be disclosed by a government body or court of competent jurisdiction or by operation of law or in order to comply with the rules of a recognized stock exchange, but only to the extent so required.
6.3 This clause 6 shall not prevent the disclosure by the Parties to Regulators or Mobile Operators requested by them.
7.1 The term ("Term") of this Agreement will commence once You accept this Agreement as provided above. The Agreement will remain in effect until terminated by You or us in accordance with this Section 7.
7.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which we provide an account closing mechanism or by contacting us.
7.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time by providing You up to thirty (30) days' advance notice.
7.4 We may suspend Your right and license to use the Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:
7.4.1 Immediately upon our notice to You if (i) You violate any provision of this agreement or we have reason to believe that You have violated the agreement, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
7.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism.
7.5 Effect of Suspension or Termination.
7.5.1 Upon our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services shall be terminated during the period of the suspension.
7.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
7.5.3 Following the suspension or termination of Your right to use the Services by us or by You for any reason other than a termination for cause, You shall be entitled to take advantage of any post-termination assistance we may generally elect to make available with respect to the Services such as data retrieval arrangements. We may also endeavor to provide You with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, shall be conditioned upon Your acceptance of and compliance with any fees and terms we specify for such assistance.
7.6 The terms and conditions of this Agreement shall remain in force until the expiry or termination of all of the Service Addenda.
7.7 Any Balance remaining after termination of this Agreement will be repaid by SMS Gate to You within 20 working days of termination for remaining balance over EUR 500.
8- Intellectual Property
8.1 Intellectual property rights in all software, information, technology 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.
9- Assignability and Third Party Rights
9.1 Each Party ("non-assignor") acknowledges that the other Party ("assignor") shall be entitled, by written notice to the non-assignor, 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 the assignor's assets entailed in the performance or use of the Service, for which assignments, non-assignor hereby provides its irrevocable consent. Any other assignment of assignor's rights and obligations under the Agreement shall be conducted only with the consent of the non-assignor, such consent not to be unreasonably withheld or delayed. Any assignment of obligations under this Clause 9 shall be without prejudice to the continuation of the assignor's obligations subsisting prior to the effective date of such assignment.
10.1 Notwithstanding the expiration or early termination of this Agreement, the provisions regarding Section 6 and Section 8 shall survive in accordance with its terms and shall stay in force for a period of 3 years.
11.1 The parties may not issue press releases or other forms of promotion that mention the other in regards to this agreement announcing the Service without the prior written consent of the other.
12- Force Majeure
12.1 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, decrees or restraints of governments, strikes or other labor disturbances, war, sabotage, and any other cause or causes, whether similar or dissimilar to those already specified, 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. Notwithstanding the foregoing, either party may terminate this Messaging Services Agreement in writing if such condition continues for a period of sixty (60) days.
13- General Terms and Conditions
13.1 The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default of breach.
13.2 This Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be deemed to have been given, except by an agreement in writing signed by the party against whom enforcement of the change or modification is asserted.
13.3 If any provision of this Agreement or any part of such provision is or becomes invalid or unenforceable or is missing, the other provisions of this Agreement shall not be affected thereby. The invalid or unenforceable or missing provision shall be replaced by a valid and enforceable provision, the effect of which comes as close as possible to the intended economical effect of the invalid or unenforceable or missing provision.
13.4 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 the State of Delaware, United States.
13.5 You and SMS Gate shall endeavor to resolve any controversy or claim through good faith negotiations. In the highly unlikely event that the parties are unable to resolve the matter within ten working days of the matter being referred to them, or any other period agreed upon, such matter shall be resolved exclusively by arbitration.
13.6 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 laws of the state of Delaware The place of arbitration shall be Delaware state, United States. 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.
Appendix A - US and Canada Specific Terms
SMS Gate US SMS Services are to be used exclusively as Peer-to-Peer.
A message may originate from a mobile phone, a computer or an internet-based service, but the message must have been initiated due to human interaction, versus an automated or timed message. Each message is viewed as a single instantiation of these definitions (i.e., if a message is transmitted from a natural person to an application and a subsequent message is transmitted from the application to a natural person, such as a SMS search function for example). Although the "round-trip" appears as though the message originated from a natural person back to the same natural person, each message is viewed individually. To that end, the initial message is viewed as a single message sent from a natural person to an application and the subsequent message is viewed as a single message sent from an application to a natural person. Marketing SMS and mobile content delivery messages are forbidden on SMS Gate US SMS Services.
You (and any end user using the Service by or through You) is strictly prohibited from using SMS Gate Inbound and Outbound Services in connection with any call types that would result in SMS Gate incurring originating access charges, local exchange carrier "DIP" fees or other call types that may be subject to reverse billing process, application or charge. In the even that You (and any end user using the Service by or through You) fail to comply with the terms of this section, SMS Gate shall have the right to (i) immediately suspend or terminate the Service without notice or opportunity to cure and (ii) SMS Gate shall charge You an additional $0.05 per minute or SMS of use for all SMS Gate Inbound Services from and after the date of any violation. You agree to comply with rules and obligations set forth by the FCC and the Mobile Marketing Association You agree to advise (in writing) all end users obtaining Service by or through You that SMS Gate Incoming Services does not include outbound calling and does not support 911 functionalities. An inbound SMS number might be canceled should your number not to be used for period of 3 (three) months.
Content Control. You agree that SMS Gate exercises no control whatsoever over any Content of any Messages and is a passive conduit in transmitting, delivering, and handling Content. As between You and SMS Gate, You are responsible for (i) the Content delivered by it, or by any third party for it or on its behalf and (ii) the acts or omissions of End Users and any such third parties with respect to any Content.
Inappropriate Content. You shall not use the Services, or permit the Services to be used directly or indirectly, to transmit Inappropriate Content.
"Inappropriate Content" means any Content and/or Message that (i) is unsolicited, including without limitation, "junk mail", "bulk e-mail," spam or other unsolicited advertising material; (ii) causes the introduction of "viruses", "worms", "Trojan horses", "e-mail bombs", "cancelbots" or other similar destructive computer programming routines (iii) violates any Applicable Law, (iv) violates the Mobile Marketing Association Guidelines or any Network Operator requirements, conditions, or codes of practice; (v) constitutes "hate speech" directed at an individual or a group based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group, (vi) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; or (vii) infringes or misappropriates the intellectual property of any Person. SMS Gate shall have the right, in its sole, but reasonably exercised, discretion, not to accept, transmit or deliver any Messages and/or Content that Provider reasonably believes contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process, or inquiry.