Contract For The Provision Of Messaging Services (Offer)
(revision No. 2, enters into force on 01 May, 2019)
San Gwann, Republic of Malta
MESSAGGIO LTD, hereinafter “CONRACTOR”, in accordance with the laws of the Republic of Malta, extends an offer to the legal entity, hereinafter “CUSTOMER”, to conclude a contract for the provision of messaging services, located at https://messaggio.com/terms-and-conditions/contract-for-the-provision-of-messaging-services-offer , hereinafter “Agreement (Offer)” or “Agreement”, “Offer”, on the following conditions:
1. DEFINITIONS AND TERMS
1.1. For the purposes of this document, the following terms are used with the following meanings:
“Advance payment” – amount of funds transferred by by the CUSTOMER to the settlement account of the CONRACTOR which appear on the Personal Account as a Balance within 3 (three) working days from the moment they are received in the account . If at the end of the Reporting Period the CUSTOMER does not disburse the Advance Payment, it is transferred to the next Reporting Period.
“Account” is an record located on an Internet network at the network address https://messaggio.com that contains information that the CUSTOMER provides about him- or herself to the computer system.
“Acceptance of the Agreement (Offer)” – full and unconditional acceptance of the Agreement (Offer) in accordance with the legislation of the Republic of Malta and the implementation of the actions specified in section 7 Agreement (Offer). Upon acceptance of the Agreement (Offer) the CUSTOMER signifies that he or she has read and agrees to the terms of the Agreement (Offer) and has entered into this agreement with the CONRACTOR.
“Balance” – balance of funds on the Personal Account.
“Sender’s Name” – a symbol consisting of letters and/or numbers displayed in the “Sender” field of the Message.
“Information channel” – a set of third party software and hardware that the CONRACTOR uses in the execution of this Agreement (Offer). These resources allow the sending and delivery of Messages to Users using the System. Information channels are agreed to through the registered account.
“Content” is visual or textual information or other material contained in Messages.
“Personal Account” is the CUSTOMER’s account in the CONRACTOR’s System that tracks the CUSTOMER’s funds for payment of the CONRACTOR’s services under this Agreement. Refilling a Personal Account occurs when the CUSTOMER transfers money to the CONRACTOR’s current account.
“Reporting period” – one calendar month.
“User” is a natural or legal person who has given consent to receive Messages from the CUSTOMER through the Information Channel.
“User Agreement” is a binding document for the CUSTOMER and CONRACTOR located on the Internet site at https://messaggio.com/terms-and-conditions/ establishing the procedure for working with the Internet resource: https://messaggio.com and Account.
“Service” is the CUSTOMER services, information about which is provided to Users by means of Messages.
“System” is a complex of software and hardware belonging to the CONRACTOR , allowing the CUSTOMER to send Messages through the Information Channels and track the delivery status of Messages to Users , as well as control financial settlements with the CONRACTOR.
“Message” is textual, graphic or other information sent to Users through the Information channel via the System.
“Spam” is messages sent without the prior consent of the User and/or misleading the User regarding the Service and/or the content of the Message, and/or preventing identification of the sender of the Message due to non-existent or falsified sender address. The “Spam” category includes, but not limited to:
• Distribution of Messages containing information that is prohibited for distribution by the current legislation of the Republic of Malta and/or international legislation and/or legislation of the country and territory from which the message is sent, and/or applicable legislation.
• Mass mailing (either mailing to multiple Users or multiple mailings to one User) that was not previously agreed to by the User and/or sending information to Users who had previously expressed a clear unwillingness to receive such information.
1.3. The Agreement may employ terms not defined in clause 1.1. of the Agreement. In this case, the interpretation of such a term shall be made in accordance with the text of the Agreement. In the absence of a clear interpretation, the term in the text of the Agreement, the interpretation shall be guided by the interpretation of the term by the following: first by the legislation of the Republic of Malta; second by the documents located on the Internet at the network address https://messaggio.com, finally by the prevailing (commonly used) understanding on the Internet.
1.4. The titles of the headings (articles) of the Treaty are intended solely for the convenience of using the text of the Treaty and have no literal legal meaning.
2. SUBJECT OF THE AGREEMENT (OFFER)
2.1. According to the tariff schedule, located at the following network address: https://messaggio.com/pricing (hereinafter Tariffs), the CONRACTOR undertakes to provide the CUSTOMER with services to provide access to the System (hereinafter Services) such that the CUSTOMER has the ability to form and send Messages.
2.2. CUSTOMER undertakes to pay for the CONRACTOR’s Services in accordance with the terms of this Agreement (Offer).
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. The CONRACTOR undertakes to:
3.1.1. Ensure the availability of equipment and software used in the performance of obligations under this Agreement, as well as to provide full technical support for the System, with the exception of technical interruptions for the purpose of maintaining the System.
3.1.2. Provide the CUSTOMER access to the system to send messages.
3.1.3. In case of malfunctions in equipment owned by the CONRACTOR or another person employed by the CONRACTOR for the provision of services under this Agreement that impede the normal provision of Services, the CONRACTOR shall immediately inform the CUSTOMER about this by a telephone call or by electronic means specified in point 6.6. of the Agreement, indicating the alleged causes of the failure and the time it will take to rectify it, as well as the measures to be taken to rectify it as soon as possible.
3.2. The CONRACTOR is entitled to:
3.2.1. Disable the CUSTOMER’s access to the System during maintenance work. In this case, the CONRACTOR shall, via electronic communication (point 6.6 of the Agreement) notify the CUSTOMER of the planned disconnection at least 1 (one) calendar day prior to the disconnection date. The time used for preventive maintenance shall be no more than 9 (nine) hours at a time.
3.2.2. If there are not enough funds in the CUSTOMER’s Personal Account to send Messages in accordance with the Tariffs, the CONRACTOR will not provide these Services. If there is Balance of zero, the CONRACTOR will cease to provide Services to the CUSTOMER. After the CUSTOMER refills his or her Personal Account, the CONRACTOR will resume provision of Services within 2 (two) business days. The parties separately agree that the CUSTOMER’s Balance shall not be negative.
3.2.3. Prevent the CUSTOMER from sending messages to a User at the request of the latter.
3.2.4. Request from the CUSTOMER any information in any format necessary for the execution of this Agreement.
3.3. The CUSTOMER undertakes to:
3.3.1. To use the Services only for communicating information to Users.
3.3.2. To comply with the requirements of the Information Channels regarding Messages within the framework of this Contract.
188.8.131.52. The Messages must not:
• contravene the ethical, moral standards when they are sent to Users;
• violate copyrights, related rights and other rights;
• contain or transmit anything harmful to software.
184.108.40.206. Not to use access to the System for sending out Messages:
• which contain materials of a crude, insulting, humiliating or threatening character; which insult human dignity; which promote violence, terrorism, racial or national enmity, etc.; which have pornographic or political content;
• which violate Maltese and/or international law and/or the laws of the country on the territory of which the dissemination of the Messages is made, and/or applicable law.
3.3.3. Not to use the Services to disseminate among Users non-agreed advertising information corresponding to the definition of “Spam,” as well as coming under the category of advertising information forbidden by the laws of the Republic of Malta, by international law and/or by applicable legislation.
3.3.4. To receive from a User on whose device Messages are planned to be sent the written consent to receive such Messages or consent by conclusive actions, if so stipulated by the laws of the Republic of Malta and/or by the laws of the country on the territory of which the dissemination of the Messages is planned to be performed. The agreement of the User to receive Messages must be expressed by his performing actions equivalent to identifying the User and allowing for reliable determination of his expression of the wish to receive Messages in accordance with the laws of the Republic of Malta and/or international law and/or the laws of the country on the territory of which the mailing of Messages is planned to be performed. At the request of the CONRACTOR and within a period of no more than 2 (two) working days, the CUSTOMER presents proof of consent in written form.
3.3.5. Ensure the confidentiality of the login and password assigned by the CONRACTOR for access to the Account.
3.3.6. Not send messages in the name of any organization (mobile operator, bank, insurance companies, government agencies, etc.) with which the CUSTOMER or the CUSTOMER’s clients have no relationship, except in cases where the use of such names is approved by the legal entity itself.
3.3.7. Not to use, without the consent of the CONRACTOR, trademarks and service marks of the CONRACTOR and third parties involved by the CONRACTOR in the execution of this Agreement to advertise their goods and services.
3.3.8. When written or oral communications (claims, complaints) come to the CONRACTOR and/or to a third party invited to perform this Contract from a User, and also from competent state authorities, when there is a statement of claim made against the CONRACTOR and/or a third party relating to this Contract, the CUSTOMER undertakes to settle with his own means and at his own expense or to take part in review of such communication or court procedure on the side of the CONRACTOR and/or third party in accordance with the laws of the Republic of Malta and or the laws of the country on the territory of which the dissemination of Messages was carried out, and also to compensate fully the CONRACTOR and/or the third party for losses they may bear in connection with the settlement of such demands and claims, including court and other fees. The CUSTOMER undertakes the aforementioned actions after receiving the claims of the CONRACTOR together with supporting documents.
3.3.9. Ensure the legality of the processing of the provision of personal data in accordance with the legislation of the Republic of Malta, including obtaining the consent of the Users to the processing of personal data.
3.3.10. Not to distribute Content that does not comply with previously given information, as well as Content that does not correspond to the activity of the CUSTOMER, and/or does not correspond to the site that the CUSTOMER informed the CONRACTOR for the purpose of sending Messages, and/or Content not corresponding to the Name provided the sender.
3.3.11. At the request of the CONRACTOR, provide information stipulated in point 3.2.4 of the Agreement within the time period specified in such a request.
3.4. The CUSTOMER has the right to:
3.4.1. Request that the CONRACTOR provide Services in accordance with the terms of this Agreement.
3.4.2. In the event that the customer needs to change connection settings, apply to the CONRACTOR in writing with a request to make such changes and specify the reasons such changes need to be made. The above request must be in writing or sent by electronic means (point 6.6. of the Agreement). The date for making the above changes is established by agreement of the Parties.
3.4.3. Receive information on the number and status of the Messages sent for delivery.
4. COST OF SERVICES AND PROCEDURE FOR CALCULATIONS
4.1. The CUSTOMER shall pay for the Conractor’s Services in accordance with the terms of this Agreement and in the amount of the Advance Payment. Cost of Services is determined without VAT. All calculations under this Agreement are made in euros.
4.2. To refill Personal Account, the CUSTOMER shall transfer the advance payment to the CONRACTOR’s current account on the basis of this Agreement.
5. RESPONSIBILITY OF THE PARTIES
5.1. The Parties bear responsibility for failure to perform and for improper performance of their obligations under this Contract in accordance with the current laws of the Republic of Malta.
5.2. Claims of the CUSTOMER against the Services provided are accepted by the CONRACTOR for review in written form within a period no later than 3 (three) working days from the moment that the contested situation arose. The time period for review of CUSTOMER claims is no greater than 15 (fifteen) working days.
5.3. The CONRACTOR does not bear liability for interruption in provision of Services relating to his carrying out technical maintenance, and also for interruptions which arise in the following situations: problems with electricity supply, fire, overloading the network and on the technical platform of the Information Channel, as well as in other situations of the equipment of third parties which are invited to perform this Contract.
5.4. The CONRACTOR does not bear liability for errors or incorrect use of the System by the CUSTOMER.
5.5. In case of violation by the CUSTOMER of the requirements stipulated by this Agreement to dispatch Messages, the CONRACTOR has the right to:
5.5.1. terminate this Agreement unilaterally by notifying the CUSTOMER in writing or electronically (point 6.6. of the Agreement) no less than 1 (one) working day before termination of Agreement;
5.5.2. to recover in full any penalties from third parties contracted by the CONRACTOR
5.5.3. for purposes of executing this Agreement incurred by the CONRACTOR due to improper fulfillment of obligations under this Agreement by the CUSTOMER. The CONRACTOR shall send to the CUSTOMER in writing or by electronic means (point 6.6 of the Agreement) the corresponding request for recovery of penalty or damages along with documented expenses from the CONRACTOR or third-party claims;
5.5.4. suspend provision of the Services, upon which the CONRACTOR shall immediately notify the CUSTOMER (point 6.6. of the Agreement) and conduct an internal investigation with the involvement of the latter. After consulting with the CUSTOMER, the CONRACTOR is entitled to renew access to the System.
5.6. The CUSTOMER bears liability for the completeness and reliability of the information provided by him in all Messages which are intended to be sent out to the Users.
5.7. If as a result of the CUSTOMER’s violation of the conditions of this Contract the CONRACTOR is exposed to losses, the CUSTOMER is obliged to compensate the CONRACTOR for the losses incurred in the full amount on the basis of a written demand from the CONRACTOR together with supporting documents confirming his expenses. In case the CONRACTOR receives claims from third parties, or if the CONRACTOR is held liable by an entity of the state or municipal authorities in relation to the actions of the CUSTOMER, the latter is obliged to make full monetary compensation to the CONRACTOR on the basis of respective written demand of the CONRACTOR together with supporting documents.
5.8. THE CONRACTOR has the right to set off an Advance Payment made by the CUSTOMER for Services rendered by the CONRACTOR against payment of all forms of fines/damages/losses or other claims of the CONRACTOR made in writing to the CUSTOMER for violation of the conditions of this Contract. The CONRACTOR has the right to use 100% of the Advance Payment. If the balance of moneys paid in is insufficient to cover the penalties assessed, the CONRACTOR sets off the next Advance Payments until the indebtedness is fully paid off. If the CONRACTOR does not apply the aforementioned condition or in case of nonpayment by the CUSTOMER for Services, the CUSTOMER is obliged to pay the sums of all forms of damages, including losses, onto the CONRACTOR’s settlement account within 5 (five) working days from the day the respective demand is sent by the CONRACTOR. Payment of the damages (fine, penalty) and compensation of losses caused by improper fulfillment of obligations does not free the CUSTOMER from performance of his obligations under the Contract in full and payment of the Services in accordance with the terms of the Contract.
5.9. The CUSTOMER bears liability for distributing Spam, including for distributing information to those Users who did not give their consent to receive it.
6. SPECIAL PROVISIONS
6.1. The PARTIES agree that all property and any other rights to intellectual property used during the execution of this Agreement remain with the PARTIES to whom the belonged at the time of signing this Agreement.
6.2. The CUSTOMER guarantees that he or she has all the necessary licenses and permits necessary for the execution of this Agreement and that they have been obtained in accordance with the laws of the Republic of Malta and/or the country or territory from which the Messages are sent.
6.3. The PARTIES cannot unilaterally transfer their rights and obligations (fully or partially) under this Contract to third parties. However, the PARTIES have the right to invite third parties to perform separate works and/or services under this Contract whereby they answer for the actions of the third parties before the second PARTY as if they were their own.
6.4. The Parties have separately agreed that the Messages in the System are assigned but not limited to the following statuses: “Delivered,” “Sent.” A message is given the status “Sent” when the request of the System addressed to the Information Channel for transmission of the Message is successfully executed. A message is given the status “Delivered” when the System receives the respective status from the Information Channel.
6.5. The Parties acknowledge that under this Agreement the CONRACTOR provides only the technical means for sending Messages, and the CUSTOMER is a distributor of advertising and is solely responsible for compliance with the laws of the Republic of Malta.
6.6. The exchange of information and documents transmitted by the Parties to each other in connection with the conclusion and execution of the Agreement is carried out through the Account or e-mail of the CONRACTOR indicated below and the CUSTOMER specified in the Account unless otherwise provided by the Agreement. The parties have agreed that the information or notification provided by one Party to the other Party has the same legal force as the information/notification provided to the other Party in writing and certified by the signature and seal of the Party or its authorized representative.
|E-mail address of the CONRACTOR:|
6.7. The Parties agree to recognize printouts of electronic documents from the System as evidence to resolve disputes.
6.8. The Parties separately agree that if the CONRACTOR detects signs of the CUSTOMER’s improper access to the System or actions that may adversely affect the quality of the Services provided, including but not limited to:
• detection of signs of hacking attempts
• The CUSTOMER’s exceeding the established threshold for the frequency of Messages sent (requests per second),
• A violation by the customer of point 3.3.10 of the Agreement,
The CONRACTOR has the right to suspend the provision of the Services at any time and begin an internal procedure to identify and analyze the reasons for said procedure to restore the quality of the Services rendered. At the same time, the CONRACTOR shall immediately notify the CUSTOMER through the System of such a suspension.
7. ACCEPTANCE OF AGREEMENT (OFFER)
7.1. The proper Adoption of the Agreement (Offer) in accordance with the legislation of the Republic of Malta is considered to be the consistent implementation of the following actions by the CUSTOMER:
1. Entering accurate and up-to-date information, including but not limited to: name of the legal entity, an approximate message text, into the account creation registration form located on the Internet at the https://client.messaggio.com/ web address.
2. Familiarization with the terms of the Agreement (Offer).
3. By means of the registered Account, inclusion of reliable and up-to-date information in the Offer Acceptance Form, including but not limited to the information contained in the Register of Enterprises
4. Signing an acceptance of the Offer using the website: hellosign.com. The signing procedure is governed by the instructions on the specified site.
7.2. After accepting the Offer in accordance with point 7.1 of the Agreement, the CUSTOMER has a right to access any Information channel(s) provided by the System. Connection to any new information channel is carried out through registered accounts in compliance with the rules for rendering services and sending messages via available Information channel, accessible in the Account upon clicking the button that reads “I have read the rules and accept the terms.”
8. PERIOD OF VALIDITY AND CHANGING CONTRACT (OFFER) TERMS
8.1. The Agreement (Offer) comes into force from the moment of the Adoption of the Agreement (Offer) by the CUSTOMER in accordance with Section 7 of the Agreement (Offer). The Agreement (Offer) is concluded for an indefinite period and can be terminated in accordance with point 9.2. of the Agreement (Offer) and legislation of the Republic of Malta. The CONRACTOR reserves the right to revoke the Agreement (Offer).
8.2. The CONRACTOR reserves the right to amend the terms of the Agreement (Offer) at any time at its discretion. If amendments to the Agreement (Offer) are made, such modifications shall be effective upon posting of the modified text of the Agreement (Offer) on the Internet at https://messaggio.com/terms-and-conditions/contract-for-the-provision-of-messaging-services-offer/ , if no other term changes come into force with this arrangement.
8.3. The CONRACTOR is entitled at any time to change the Tariffs at his own discretion without prior agreement with the CUSTOMER. If the CONRACTOR changes the Tariff, a new edition of the Tariffs will be posted on the Internet at the following address: https://messaggio.com/pricing , unless otherwise specified by the CONRACTOR under this arrangement.
9. PROCEDURE FOR TERMINATION OF AGREEMENT (OFFER)
9.1. In case of violation of the terms of this Agreement by the CUSTOMER, the CONRACTOR is entitled to unilaterally terminate this Agreement. In this case, the CONRACTOR is obliged, by means of electronic communication (point 6.6. of the Agreement) to notify the CUSTOMER at least 2 (two) working days before the termination of Services, except for in cases provided for by this Agreement for a shorter period.
9.2. Early termination of the Agreement is possible on the initiative of any Party after all reconciliations and mutual settlements have been completed. The PARTY initiating the termination of the Agreement shall send a notice of unilateral termination of the Agreement by electronic means of communication 30 (thirty) calendar days before the date of termination of the Agreement (point 6.6. of the Agreement).
10. METHOD OF RESOLVING DISPUTES
10.1. Disputes and disagreements which may arise between the PARTIES during the execution of this Contract or in relation to it should be resolved by means of negotiations between the parties.
10.2. If it is impossible to resolve a dispute in the process of negotiations, it is handed over for review by a court in accordance with the current laws of the Republic of Malta, with obligatory observation of the claims procedure for settling disputes. The period of time for responding to a claim is 15 (fifteen) working days from the moment it has been received.
11.1. The PARTIES to this Contract are obliged to safeguard as confidential information all data of a technical, production and commercial nature (presented in oral, visual or written form) which was communicated to them or about which they came to learn in another way in connection with the conclusion and execution of this Contract.
11.2. All rights to confidential information belong to the PARTY which originally communicated it. At the expiration of validity of this Contract, all confidential information contained in any supports must be returned upon request of the PARTY which communicated it or must be destroyed.
11.3. The PARTIES are obliged to restrict disclosure of confidential information to those representatives of the PARTIES (employees, consultants) for whom access to the given information is objectively necessary for the purposes of performing the obligations under this Contract. The PARTIES are obliged to ensure the handling of confidential information with the same degree of care and diligence as the PARTY receiving the information uses with respect to its own confidential information, but in any case not below the level of reasonable carefulness.
11.4. In cases which are not directly stipulated in accordance with the applicable laws, confidential information can be transmitted to third parties only upon the preliminary written consent of the PARTIES. In case of disclosure of confidential information upon the legal demand of state authorities, the PARTY disclosing the confidential information of the other PARTY is obliged to immediately inform the other PARTY about this.
11.5. For the purposes of this Contract, the following information is not considered as confidential:
11.5.1. information which has become generally accessible not due to the fault or as a result of violation of conditions of this Contract by the PARTY which received the information;
11.5.2. information independently obtained or developed by the PARTY on a legal basis without using any confidential information divulged by the PARTY.
11.6. The PARTIES have agreed that the provisions of this section are valid for the entire period of validity of this Contract, as well as for a period of 3 (three) years following its termination.
12.1. The PARTIES are freed of responsibility for partial or complete nonperformance of their obligations under this Contract if this nonperformance was the consequence of Force-Majeure which the PARTIES could not foresee or prevent. The PARTIES inform each other in written form about the onset of such circumstances.
12.2. Circumstances of Force-majeure comprise: war, uprisings, earthquakes, floods, fire or similar phenomena, government directives, edicts (decrees) of state authorities, laws and other normative documents adopted after the signing of this Contract and preventing the performance of this Contract. The circumstances enumerated must be confirmed by the respective competent authorities.
12.3. Failure to make timely notification, meaning more than 10 (ten) working days from the moment of the onset or cessation of the circumstances indicated in point 12.2 of this Contract deprives the PARTY of the possibility of referring to them.
12.4. Additional circumstances of Force-Majeure are: actions directed at the seizure of control over local or server equipment, refusal to service the computer network, destabilization of the computer network, hacker attacks, infiltration of things harmful to software, hacking of the software and other illegal actions with respect to the System by third parties.
12.5. In case of the onset or cessation of the circumstances indicated in point 12.4 of this Contract, the PARTY is obliged as quickly as possible but in a period of not more than 3 (three) working days, to inform the other PARTY about the onset or cessation of such circumstances. Failure to make timely notification deprives the PARTY of the possibility to make reference to any of the Force-Majeure circumstances indicated in point 12.4 of this Contract.
12.6. If the circumstances of Force-Majeure continue for more than one month, then each of the PARTIES has the right to cancel this Contract unilaterally and out of court, and in this case neither PARTY has the right to demand from the other PARTY compensation of losses caused by cancellation of the Contract. In this case, during a period of time no later than 10 (ten) days following the cancellation of the Contract both PARTIES make mutual payments of indebtedness to each other at the moment before receiving the respective written notification.
13. FINAL PROVISIONS
13.1. The contract, its conclusion and execution are governed by the laws of the Republic of Malta.
13.2. The CUSTOMER undertakes to notify the other party immediately via electronic communication (point 6.6. of the Agreement) of any changes: changes of an organizational/legal form, mailing address, legal address, bank details, contact persons, phone numbers and other contact information.
13.3. The PARTIES recognize the validity of documents, including, but not limited to, any letters and notifications transmitted by electronic means of communication (point 6.6. of the Agreement), as well as the originals of such documents (if there is a need for originals). Acknowledgment of receipt of documents by e-mail is made known when the Party to which the documents were sent sends an appropriate response message.
13.4. In the event that one or more provisions of the Treaty are found invalid for any reason, such invalidity does not affect the validity of any other provisions of the Treaty, which remain in force.
14. INFORMATION FROM THE CONRACTOR
Reg.No: С 86217
VAT number: MT25357323
Registration address: office E103, The Hub, Triq Sant Andrija, San Gwann, SGN 1612, Malta
Beneficiary: Messaggio Ltd.
Beneficiary address: office E103, The Hub, Triq Sant Andrija, Sa Gwann, SGN 1612, Malta
IBAN EUR: HU29 1030 0002 1304 6507 0001 4883
Bank: MKB Bank Zrt
Bank Address: Vaci utca 38, 1056 Budapest, Hungary
Internet address: https://messaggio.com/terms-and-conditions/contract-for-the-provision-of-messaging-services-offer/
Date: 01 / 05 / 2019