Terms and Conditions

These Terms and Conditions (Agreement) includes and incorporates the terms of online Service Order Form (SOF), and contains, among other things, warranty disclaimers, liability limitations and use limitations.  There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the Parties after the date hereof.

Definitions

Capitalized terms used but not defined herein will have the meaning ascribed thereto in the Service Order Form (as defined below) or Acceptable Usage Policy (as defined below).

  • Customer Data means non-public data provided by the Customer to the Company to enable the provision of the Services and Proprietary Information of the Customer.
  • Equipment means collectively, any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
  • Group Messaging means a SMS message sent to more than one recipient.
  • Initial Term means one month from the Effective Date.
  • Service Order Form means an an online ordering form or document  specifying the Services to be provided hereunder that is entered into between the Customer and the Company, including any addenda and supplements thereto.
  • SMS means short messaging service.
  • Services means the services, software and technology described in the Service Order Form.
  • Software means software relating to the Services.
  • User means an individual, employee or an agent of the Customer who is authorized by the Customer to use the Services, for whom the Customer have purchased a subscription (or in the case of any Services provided by the Company without charge, for whom the Services have been provisioned), and to whom the Customer (or, when applicable, the Company at the request of the Customer) has supplied a user identification and password.

1. The Services

(a) The Services are delivered as a cloud-based platform that includes one or more of the following: (i) SMS Messaging Platform for Customer Support; (ii) Group Messaging Module; (iii) Coupons Module.  The services might also consist of one or more of the following: rented or text-enabled local or toll-free phone numbers, messaging applications, SMS gateway access, data transmission, data access, data storage and, if applicable, software maintenance and upgrades and customer support, that enable you to send text messages and/or group messages to recipients designated by you (collectively, the “Services”). Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services.

By signing up for an account and submitting a request to SMS-enable an existing telephone number The Customer verifies that The Customer is the above-named phone service customer, is at least 18 years of age and is authorized to change the primary carrier(s) for the telephone number(s) requested. The Customer verifies that the name and address provided during the registration is the name and address on record with The Customer’s local telephone company. The Customer authorizes The Service Provider or its designated agent to act on The Customer’s behalf and SMS-enable The Customer’s landline or toll-free phone number(s) as provided during the registration process by generating a Letter of Authorization, and to obtain any information The Service Provider deems necessary to make the carrier change(s), including, for example, an inventory of telephone lines billed to the telephone number(s), carrier or customer identifying information, billing addresses, and credit history. The Customer represents and warrants that The Customer has full authority and approval to use the telephone number(s) in conjunction with the services provided by The Service Provider and that The Customer’s use of such telephone number(s) is not in violation of any third party licenses, terms, conditions, laws, rules and/or regulations respecting the use of such telephone number(s), including any company or workplace policies regarding the use of such telephone number(s).

Service Provider transmits and receives text messages and voice broadcasts via other major telecommunications companies and mobile network operators, and thus Service Provider’s influence over the timing of the transmission of your messages and broadcasts is within the technical constraints imposed upon Service Provider. While Service Provider shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your messages and broadcasts across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Service Provider is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Service Provider for any such non-deliveries. Furthermore, you agree that message and group message contents are deemed to have zero value.

The Customer acknowledges that government agencies and telecommunications (including wireless) operators may change any existing rules or implement new rules relating to messaging or broadcasting (the Changes, or individually, a Change). The Company has a right to amend or modify Services, any applicable Service Order Forms or any Terms and Conditions upon 30 calendar days’ written notice to the Customer; provided that such amendments or modifications do not (i) in any way materially adversely affect any applicable Services, or (ii) increase the cost of such Services by more than ten percent (10%) of the total sums to be paid by the Customer for the Services specified in the applicable Service Order Forms, provided, however, any increase to the cost of any Services attributable to fees, taxes, or any other charges imposed or required by any governmental authority and wireless operators will be excluded for the purposes of this clause.

2. Username/Password

To use the Services, Customer will be assigned a unique username and/or password. Customer agrees to immediately notify Service Provider of any known or suspected unauthorized use(s) of its user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. Customer shall be responsible for maintaining the confidentiality of the password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Customer’s user account, in Service Provider’s sole discretion, and you may be reported to appropriate law-enforcement agencies.

3. Restrictions and Responsibilities

The Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by the Service Provider or authorized within the Services); (iii) use the Services for any activities that could reasonably be deemed as falling outside of appropriate and reasonable use of the Services.

The rights granted to the Customer under this Agreement are also conditioned on the following: (i) except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and (ii) the Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

In addition to any other rights afforded to the Service Provider under this Agreement, the Service Provider reserves the right to remove or disable access to any material that violates the foregoing restrictions. The Service Provider will have no liability to the Customer in the event that the Service Provider takes such action.

The Customer agrees to defend and indemnify the Service Provider against any claim arising out of a violation of the Customer’s obligations under this section.

4. Ownership of Data, Data Protection & Privacy

The Service Provider will own and retain all rights, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, and (c) all intellectual property rights related to any of the foregoing.

Notwithstanding anything to the contrary, the Service Provider will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Customer Data and the data derived therefrom), and the Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5. Fees

The Service Provider will require that the Customer provide the Service Provider with credit information or credit card information as a condition of the Service Provider’s acceptance of any Service Order Form. If the Customer’s level of credit, as approved by the Service Provider from time to time, is insufficient, the Service Provider may demand immediate payment in accordance with the Service Provider’s instructions and/or discontinue the Services. If the Customer fails to make payment on time, the Service Provider may immediately suspend or terminate the Services and/or this Agreement without prior notice.

The Customer will pay for the Services immediately on the first day of the billing cycle as reflected on Service Provider’s invoice (the Due Date) delivered by the Service Provider to the Customer. If the payment is not received by any applicable Due Date, the Service Provider may impose a late payment charge of the lesser of 1.5% per month to the amount past due. The Customer may not refuse the payment of the amounts due on the grounds that that all or any portion of charges for the Services was incurred by unauthorized users. The Customer will reimburse the Service Provider for reasonable attorneys’ fees and any other costs associated with collecting delinquent or dishonored payments. Restrictive endorsements or other statements on checks accepted by the Service Provider will not apply.

6. Term and Termination

Subject to earlier termination as provided below, this Agreement is for the Initial Term and will be automatically renewed for additional periods of one month (together with the Initial Term, the Term), unless either Party requests termination at least thirty (30) days prior to the end of the then-current term. If this Agreement is terminated, all Service Order Form(s) will be terminated as well.

The term of a Service Order Form will commence on the date when customer submitted the online registration form, and will be automatically renewed for additional periods of one month, unless either Party requests termination at least thirty (30) days prior to the requested effective termination date.

In addition to any other remedies it may have, the Company may also terminate this Agreement upon one (1) week written notice or without notice in the case of nonpayment, or if the other Party materially breaches any of the terms or conditions of this Agreement.

Upon any termination, the Customer will pay in full for the Services up to and including the last day on which the Services are provided, and the Company will make all Customer Data available to the Customer for electronic retrieval for a period of 30 days, but thereafter the Company may, but is not obligated to, delete the stored Customer Data.

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. Warranty and Disclaimer

The Company will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.

Services can be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by a third-party, or because of other causes beyond the Company’s reasonable control, but the Company will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

The Company will use reasonable efforts consistent with the prevailing industry standards to deliver messages on time, however because the delivery of messages are largely dependent on the effective functioning of intermediary networks, network operators’ cellular networks, network coverage and the recipient’s mobile handset, the Company cannot guarantee the timely delivery of messages or the availability of the delivery of messages or the compatibility between any message or content format and any particular mobile handsets or mobile operating systems.

The Company will use reasonable efforts consistent with the prevailing industry standards to deliver messages, however, the Company does not provide secure messaging service or communication channels to transmit information to recipients.

8. Group Messaging

The Customer acknowledges that SMS-enabled landline or toll-free phone numbers are intended for person-to-person communication only and the outgoing speed is limited to one message per second. All outgoing Group Messages sent by the Customer, will be delivered according to the current carrier regulations and best practices.

The Customer (i) acknowledges that SMS-enabled landline or toll-free phone numbers cannot be used for bulk messaging and (ii) agrees not to send any type of marketing, advertising or promotional content to any subscribers of telecommunication services (including, wireless, mobile or landline telephone services) (End Users). The Customer acknowledges that in the case the Customer sends such content to End Users, (a) their text-enabled landline numbers can be blacklisted and blocked by the wireless operators; and (b) once blacklisted or blocked, the Company does not guarantee the recovery of your text-enabled phone numbers and is not responsible for any losses associated with the loss of the blocked phone account(s).

9. Indemnity

The Customer agrees to defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that any of the Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from the use of the Services or Content in violation of this Agreement, Order Form or applicable law (each, a Claim Against the Company), and the Customer will indemnify the Company from any damages, attorney fees and costs finally awarded against the Company as a result of, or for any amounts paid by the Company under a settlement approved by the Customer in writing of, a Claim Against the Company, provided that the Company (a) promptly gives the Customer written notice of the Claim Against the Company, (b) gives the Customer sole control of the defense and settlement of the Claim Against the Company (except that the Customer may not settle any Claim Against the Company unless the Customer unconditionally releases the Company of all liability), and (c) gives the Customer all reasonable assistance, at the Customer’s expense.

The Customer will indemnify and hold harmless The Company from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including, without limitation, reasonable attorneys’ fees) on the part of or which may be incurred by Customer, the Company or any third-party relating to or arising from the use or operation of the Customer Equipment. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with or arising due to the unauthorized access to or use of the Services by any third-party through or in connection with the Customer Equipment, whether or not such unauthorized access is accidental, intentional, unintentional, or by fraud and whether or not Customer had or should have had knowledge of such unauthorized access. In all such cases of unauthorized access, Customer retains full and sole responsibility for any and all charges for the Services provided by The Company incurred due to such unauthorized access.

10. Limitation of Liability

Notwithstanding anything to the contrary, except for bodily injury of a person, the Company and the Company’s suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees will not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond the company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the customer to the company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the company has been advised of the possibility of such damages.

Unless caused by the Company’s willful misconduct or gross negligence, the Company will not be liable for (i) delays in the installation, commencement or restoration of any Services; (ii) any temporary or permanent cessation of any Services; (iii) errors, malfunctions, delays or defects in the transmission of any Services; (iv) inability to provide Services because of the change in rules and regulations imposed by the government or wireless operators; and (v) to the fullest extent permitted by applicable law, for injury to or death of any person and/or damage to or loss of any property arising out of or attributable to any Service(s) and/or performance pursuant to this Agreement. The Company will not be liable for loss or damage occasioned by any Force Majeure Event.

11. Service Outages

When the Customer believes that a loss or material degradation of the Services has occurred (the Service Outage), the Customer must first conduct customary problem isolation, resolution and troubleshooting activities. If the Customer believes that the Service Outage is attributable to or related to the Company or the Company’s network, the Customer will notify the Company’s customer care department via email at support@messagekite.com (or any other email address specified in any applicable the Service Order Form or Terms and Conditions), or by any tools provided by the Company from time to time, to report the Service Outage) and initiate an investigation of the cause and remedy of such Service Outage (a Trouble Ticket). Once a Trouble Ticket has been opened, the Company’s appropriate personnel will initiate diagnostic testing and isolation activities to determine the source and severity of the Service Outage and suggest a remedy to, or enact a remedy on behalf of, the Customer; the Company and the Customer will cooperate to restore the Services as soon as reasonably practicable.

12. Governing Law and Dispute Resolution

This Agreement and any dispute arising from or in relation to this Agreement will be governed by, and interpreted and enforced in accordance with, the law of the province of Ontario and the laws of Canada applicable in that province.

Any dispute, controversy or claim arising under, out of or relating to this Agreement (a Dispute), including its formulation, existence, validity, binding effect, interpretation, performance, breach or termination, as well as other non-contractual claims, must be referred to and finally determined by arbitration in accordance with the provisions of the Arbitration Act (Ontario). Any Party may initiate arbitration proceeding by delivering notice (a Notice to Arbitrate) to the other Party. The Notice to Arbitrate must be in writing and must set out a concise description of the Dispute to be submitted to arbitration. The arbitration, including the rendering of the award or decision, will take place in Toronto, Ontario which will be the place of arbitration. The language to be used in the arbitration will be English.

13. Force Majeure

If either Party’s performance under this Agreement is delayed, prevented, obstructed or inhibited because of any act of God, governmental action or any other cause beyond either party’s reasonable control (Force Majeure Event), such Party will not be in default of this Agreement or any applicable the Service Order Form; provided, however, such Party will exercise commercially reasonable efforts to prepare for, perform in spite of, and resume performance after the Force Majeure Event. For avoidance of doubt, Customer will ensure proper protection and conformity to industry standards to protect the integrity of Customer’s network; the Customer’s failure to do so for any reason will not be considered a Force Majeure Event and any incurred charges for Services will be deemed valid and due in accordance with the terms of this Agreement. If a Force Majeure Event materially impacts performance for ten (10) business days or more, either Party may terminate the affected Services without penalty or further obligation upon written notification to the other Party. During a Force Majeure Event, all payment obligations will abate with respect to the impacted Services.

14. General

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.

The Company may audit the use of the Services by the Customer. The Customer agrees to cooperate with the Company’s and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with the Customer’s normal business operations. You agree that the Company shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.

The Company may use tools, scripts, software, and utilities (collectively, the tools) to monitor and administer the Services and to help resolve the Customer’s service requests. The tools will not collect, report or store any of the Customer’s data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing the Company’s product and service portfolio and for license management. The Customer agrees that (a) except as set forth in the following paragraph, the Customer may not access or use the tools, and (b) the Customer will not use or restore the tools from any tape backup at any time following termination of the agreement.

All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.