Terms and Conditions of Service
Please read these Terms and Conditions of Service carefully. They represent the legally binding Agreement between you and Messaggio for the use of Messaggio’s Service. If you register and use the Service you agree that you have understood and accepted the terms of the Agreement. You may not use the Service if you do not accept the terms of the Agreement. If you accept these terms on behalf of an organization then you represent that you have authority to do so. If, however, your organization has a separate Agreement with Messaggio then that Agreement will govern instead.
In this Agreement “Customer” will refer to you, unless you accept on behalf of an organization in which case “Customer” will refer to the organization; and “Messaggio” will refer to DEMETRA s.r.o., a company incorporated under the laws of Slovak Republic, with its registered office at Konventna 7, Bratislava, Slovakia. Messaggio and Customer are referred to as “Party” and jointly and “Parties” in this Agreement. “Services” will refer to our offering starting with our platform services, which includes all of our programs, features, functions and report formats, instructions, code samples, on-line help files and technical documentation, our website, marketing material, business center, technical support, Add-ons as well as any upgrades or updates to any of these, made generally available by us, including any of our SDKs, APIs or software provided to you in connection with your use of our services, and our connectivity services.
You now agree with us as follows:
- Services and Incorporation
1.1 Messaggio offers a variety of services enabling connectivity and the easy integration of telecommunications capabilities into software applications, including mobile, web-based and desktop applications described on the website together with the then-current pricing page (the “Services”).
1.2 This Agreement incorporates the following additional policies:
1.3 Messaggio may have to make changes from time to time to the Services, pricing and policies. Customer is responsible for compatibility of its use of the Services with the then-current Service description and policies. Messaggio may in its reasonable discretion suspend or discontinue any of the Services or its components or amend policies by posting a notice on the Messaggio portal or by sending Customer notices through an appropriate means of electronic communication. It is Customer’s responsibility to keep informed about all changes to the Services or the policies.
- Charges, Payment Terms and Taxes
2.1 Customer agrees to pay for the use of the Services as set out on the pricing page on the Messaggio Portal, which may be updated from time to time, unless Customer has entered into a separate Agreement with Messaggio in which case special pricing applies. Messaggio reserves the right to change pricing from time to time. Customer’s continued use of the Services after a price change becomes effective constitutes Customer’s agreement to pay the changed price.
2.2 The Services will be provided against pre-payment by Customer, without any right of set-off, deduction or counterclaim, to the extent, and for as long as, Customer is in credit. Customer will pre-pay the Services by credit card or, if post-payment is specifically agreed with Messaggio, pay by wire transfer to an account designated by Messaggio free of bank or other charges.
2.3 Transactions are taken into account for purposes of the charges as recorded and computed by Messaggio from midnight on the 1st day of the relevant period to midnight of the last day (times are CET/CEST).
2.4 Messaggio reserves the right to set off charges against operator records, as made available to Messaggio, shall be conclusive as to transactions relevant for the calculation of charges.
2.5 Charges contained in a table as part of the Service Description and pricing descriptions are non-marginal so that, where more than one charge band applies, the band for the highest volume of transactions shall apply to all relevant transactions.
2.6 Customer must raise any payment dispute by written notice to Messaggio within fifteen (15) days from date of invoice. Customer will pay the undisputed invoice amount by the invoice due date.
Messaggio will accept payment disputes for amounts greater than 3% of the invoice amount. In case of an accepted payment dispute, Messaggio will provide Customer with an itemised transaction log report. The Parties shall negotiate in good faith to settle any payment dispute within 30 days from its submission. Each Party can choose to escalate the payment dispute to the relevant commercial contacts of the other Party. If the dispute is resolved in the Customer’s favour, Messaggio will correct the relevant invoice.
2.7 Messaggio is entitled to terminate this Agreement without further notice if (i) Customer has outstanding payments older than 30 days or (ii) a payment dispute cannot be resolved within 30 days from its submission.
2.8 All fees payable under this Agreement by Customer will be made in accordance with these Payment Terms. The fees shown on the Messaggio website are exclusive of any applicable taxes payable in connection with the Services provided hereunder (including, without limitation, VAT or any relevant local sales taxes).
- Obligations of Customer
3.1 Customer will provide suitable hardware and communication equipment and will ensure at all times, at its expense, that such equipment remains suitable to access the Messaggio platform which consists of the equipment Messaggio uses in connection with the provision of its Services (“Messaggio Platform”).
3.2 Customer will, and will ensure that its customers or users will use the Services strictly in compliance with the AUP and applicable data protection laws.
3.3 If Customer becomes aware that there is likely to be an infringement of the AUP and Data Privacy Policies it will notify Messaggio immediately. Messaggio, in its reasonable discretion, may suspend Services or terminate the Agreement immediately indemnify Messaggio against all cost and liability arising out of a claim that an SMS or Transaction, or Customer’s or its customers’ or users’ use of the Services, infringe the rights, contractual or statutory, of Messaggio or any third party or any applicable law and regulation.
3.4 Customer will immediately inform Messaggio when receiving any notification or official communication from regulators, state authorities or similar bodies, in relation to Customer’s services which are based on the Services provided by Messaggio, providing Messaggio with a copy of such notification or, at a minimum, with complete substantive information regarding the part of the notification which relates to the Services directly or indirectly.
3.5 Customer will not have the right to sell to any resellers or aggregators of services under this Agreement without the advance prior consent in writing of Messaggio.
- Term, Termination and Suspension
4.1 This Agreement commences on the date Customer accepted these Terms and Conditions and continues indefinitely unless terminated by either Party by giving at least thirty (30) days’ advance written notice of termination. In the event that certain Services specifically provide for a fixed term, as set out in the Additional Terms for Certain Messaggio Services, Customer will be liable for all fees agreed in connection with the fixed term in the event of early termination by Customer, effective prior to the end of the fixed term, or a termination with immediate effect by Messaggio as provided in Section 4.2 below.
4.2 Either Party can terminate the Agreement with immediate effect if (i) the other Party is in breach of a material obligation of this Agreement and has failed to cure such breach within ten (10) days of receiving written notice of such breach; (ii) if the other Party ceases to trade or to pay its debts in the ordinary course, enters into a voluntary arrangement with its creditors, or becomes insolvent or enters into liquidation or similar, or anything occurs analogous to the foregoing under the laws of the place where the Party is incorporated, or (iii) as specifically contemplated in this Agreement. If Messaggio terminates Customer’s account Messaggio may also suspend Services immediately.
4.3 Messaggio may suspend the Services in the event of (i) non-payment of charges, (ii) Messaggio has reasons to believe that Customer has violated the AUP, (iii) there is reason to believe that the traffic created from the use of the Services is fraudulent or negatively impacting the operating capability of our Services; (iv) Messaggio determines that in its sole discretion, that providing the Services is prohibited by law; or (v) suspension is required for upgrade or maintenance reasons or the services of an operator required for the provision of the Services are not available . Messaggio will make reasonable efforts to notify Customer in advance of any suspension.
4.4 Messaggio may terminate all or part of the Services upon thirty (30) days’ advance notice in the event that Customer has not utilised the Service or Services for a minimum period of six (6) months.
- Confidentiality
5.1 The Parties undertake that they will keep confidential and will not use for their own purposes any information of a confidential nature including, but not limited to, any trade secrets, proprietary information, trading and financial details and other information of commercial value (“Confidential Information”).
5.2 This Clause shall not apply to any such Confidential Information which the receiving party can show is public knowledge or was already known to it at the time of disclosure, subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the receiving Party’s possession from a third party.
5.3 If an administrative body or a court under proceedings asks for Confidential Information the Parties will contact each other and will cooperate to minimise possible adverse effects of such disclosure.
5.4 Customer acknowledges that, where an administrative body or a court under proceedings requests Messaggio to disclose the name and address of customers using specific long numbers, Messaggio is obliged to comply and to provide such information about Customer within the scope of the request.
5.5 The receiving Party will return to the disclosing party or destroy, if permitted by law, all Confidential Information the receiving Party holds in whatever form upon termination or expiry of this Agreement.
5.6 The terms of this Clause will survive expiry or earlier termination of the Agreement.
- Warranty
6.1 Messaggio warrants to provide the Services in a professional manner. Messaggio will provide the Services subject to the terms of the SSLA from the date they go “live”, upon notification from Messaggio to that effect. Messaggio does not warrant that the Services will be fault-free or available at any the time. Customer’s entire remedy for Messaggio’s failure to meet service level requirements or other requirements under this Agreement will be (i) for Messaggio to use reasonable commercial efforts to correct reported faults for which it is responsible and (ii) termination of this Agreement. All other warranties, whether statutory or contractual, are hereby excluded from this Agreement, to the extent permitted by law.
6.2 Messaggio is not responsible for any mobile telecommunication systems or networks it does not operate and consequently not liable for the acts or omissions of other telecommunication services providers.
6.3 Customer acknowledges that Messaggio has no control over the content of any messages or voice calls transmitted through its system, and Messaggio cannot be held responsible by Customer or its customers for such content.
- Limitation of Liability
7.1 Messaggio will only be liable as expressly provided for in this Agreement.
7.2 Messaggio will not be liable to Customer or any other person or entity, whether in contract, tort (including negligence, breach of statutory duty, or other tort) or otherwise:
for any loss of revenue, business, anticipated savings or profits, or
for any indirect, special or consequential loss, damage, costs, or other claims.
Nothing in this Agreement shall exclude or restrict Messaggio’s liability for death or personal injury.
7.3 Messaggio will be liable for direct loss or damages only, whether in contract, tort (including negligence, breach of statutory duty, or other tort) or otherwise. Messaggio’s aggregate liability during any successive twelve month period will be limited to damages which will not exceed the lesser of (i) 50,000 EUR (fifty thousand Euro) or (ii) the aggregate during such period of Messaggio’s net revenue generated under this Agreement in respect of Charges.
- Indemnification
Customer will indemnify Messaggio against all claims brought by a third party in connection with the provision of Services under this Agreement (“Third Party Claim”) in particular, but not limited to, breach of the provisions of the Messaggio policies referenced in Section 1.2 and applicable laws.
- Intellectual Property Rights
9.1 Intellectual property rights in all software, information, technology or data whatsoever supplied by either party under this Agreement will remain the property of that party.
9.2 Messaggio will not modify or alter Customer`s name or logo. Messaggio will not use any trademark, word, symbol, letter or design in combination with Customer name or logo in a manner that would create a combination mark. Messaggio will not attempt to register Customer name or logo, or adopt, use, or attempt to register any confusingly similar mark or website domain.
- Compliance
Customer will comply with all applicable laws, including data protection, anti-bribery and anti- spam laws and Messaggio policies referenced in Section 1.2. If Customer is sending messages to and from the United States of America or Canada, Customer must pay particular attention to US and Canadian Anti-Spam laws as referenced in the AUP. Messaggio will not enter into agreements with individuals or entities which are subject to international sanctions or embargoes with respect to the Services. Customer undertakes that Customer is not subject to such sanctions or embargoes.
- Force Majeure
Any delay or failure by either party hereto in performance of this Agreement will be excused to the extent that such delays or failures are caused by occurrences beyond such party’s reasonable control, including acts of God, decrees or restraints of governments, strikes or other labour disturbances, war, sabotage, and any other cause which cannot be reasonably controlled by either party. The party seeking to excuse its performance will promptly notify the other party, and the notifying party will be excused for the duration of its inability to perform. Either party may terminate this Agreement if such conditions continue for sixty (60) days or more.
- Successors in Title and Assigns
Customer acknowledges that Messaggio shall be entitled by notice in writing to Customer, to assign all of its rights and obligations under this Agreement to another entity which is a controlled affiliate of Messaggio for which assignment Customer hereby gives its irrevocable consent. “Control” means ownership of more than fifty per cent (50%) of the equity. Otherwise all assignments require the consent of Customer, such consent not to be unreasonably withheld.
- Variation
Any variation, amendment or modification to this Agreement shall be effective only if agreed to in writing and signed by both Provider and Messaggio. Such variation, amendment or modification shall then form part of this Agreement.
- Waiver
Any failure to enforce any right or provision in this Agreement by either Party does not constitute a waiver of such right or provision or of any other right or provision in this Agreement.
- Entire Agreement and Severability
This Agreement constitutes the entire understanding between the parties. If any portion is determined to be or becomes unenforceable or illegal, such portion will be deemed to be eliminated and the remainder of this Agreement will remain in effect in accordance with its terms as modified by such deletion.
- Jurisdiction and Governing Law
This Agreement shall be governed by the laws of Slovak Republic, and the parties hereby submit to the non-exclusive jurisdiction of the courts of Bratislava, Slovakia, for the resolution of any dispute which may arise in connection herewith.