1.1 You wish to use INFOBIP services (meaning SMS and / or other services as provided under this Agreement; hereinafter “Service” and /or “Free Service”) as either a paying customer (“Customer”) and / or Our Free Service as a non-paying customer (“Non-Paying Customer”). By applying for the services using Our online registration form You are entering into this Agreement as a Non-Paying Customer.
1.2 INFOBIP means INFOBIP Ltd., a limited liability company whose principal place of business is at 6th Floor, Clinch’s House, Lord Street, Douglas, Isle of Man IM99 1RZ (hereinafter “INFOBIP”; “We”; Our”; “Us”).
1.3 You wish to use the Service and / or the Free Service and We are willing to make the Service and / or the Free Service available to You subject to and in accordance with the terms and conditions of the Agreement.
1.4 The terms and conditions of the Agreement:
1.4.1 Are the only terms and conditions upon which We are prepared to make the Service and / or the Free Service available to You; and
1.4.2 Shall govern Your access to and use of the Service and / or the Free Service to the exclusion of all other terms and conditions.
1.5 Your use of the Free Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON INFOBIP’S WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
2. The Service and the Free Service
2.1 The Service enables a Paying Customer to send and receive SMS and / or other format messages, and use Our other mobile messaging services, as set out as part of Your online registration.
2.2 Any such message shall be referred to in these Terms and Conditions as a “Transaction”.
2.3 The Free Service will enable a Non-Paying Customers to:
2.3.1 Trial one or more elements of the Service described in the above clause 2; and / or
2.3.2 Use any element of the Service described in the above clause 2 or any other service made available by Us to You free of charge from time to time at Our absolute discretion.
2.4 Some or all elements of the Free Service may be accessed via a web application, an email gateway, a software tool and / or a web service more particularly described on our website at www.infobip.com.
3. Availability and Interruption of the Service
3.1 We will make the Service and / or the Free Service available to You as either a Customer and / or a Non-Paying Customer using reasonable skill and care. You do however acknowledge and agree that the availability of the Service and / or the Free Service, Your ability to access and / or use the Service and / or the Free Service and the conducting of any given Transaction may depend upon factors beyond Our reasonable control, including (but not limited to):
3.1.1 Factors affecting the operation of the Service and / or the Free Service and / or preventing Transactions from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions; or
3.1.2 Factors preventing end-users from receiving messages such as, by way of example, the terms and conditions of an end-user’s service provider.
3.2 We cannot therefore guarantee:
3.2.1 That the Service and / or the Free Service will be available to You at all times or free from faults or interruptions;
3.2.2 The receipt by any intended recipient of any message sent using the Service and / or the Free Service (as applicable).
3.3 We may, at Our sole discretion, alter or improve the Service and / or the Free Service We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Service and / or the Free Service.
3.4 It may be necessary from time to time for Us to suspend the Service and / or the Free Service that We provide to You for routine or emergency maintenance and / or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.
3.5 We may at Our sole discretion suspend Your access to the Service and / or the Free Service and / or cease to allow any Transactions to be conducted by You if:
3.5.1 You are in material breach of the Agreement and / or any applicable codes of practice, guidelines, rulings or regulations of any national telecommunications regulatory authority or other competent body or authority (“Regulator”) relating to the Service and / or the Free Service that may be introduced or made from time to time during the continuation of the Agreement and with which You must comply or to which You have agreed to be bound (“Codes”), including (but not limited to) those issued by PhonepayPlus and the Industry Code of Practice for the use of mobile phone technology to provide passive location services in the UK;
3.5.2 You are doing or have done anything unlawful in the course of using or relating to Your use of the Service and / or the Free Service;
3.5.3 A Network Operator or a Regulator requires it;
3.5.4 At any time the number of Transactions that You are conducting exceeds any forecast You have given Us of the number of Transactions that You expected to conduct at that time (“Forecast”) or, in the absence of any applicable Forecast, the number of Transactions conducted by You at any time causes or is likely to cause congestion to any telecommunications network; or
3.5.5 We are entitled to terminate the Agreement for any reason, in which case We will give You appropriate notice as soon as is reasonably possible.
3.5.6 Should Your account utilized in the provision of INFOBIP Service be inactive through a period of 6 (six) months it remains in INFOBIP’s discretion to suspend INFOBIP Services to You. Absence of any activities on Your account through the period of 6 (six) months shall be considered as inactivity subject to suspension. You can reactivate the account with a request to INFOBIP sent 3 (three) working days prior to the required reactivation.
4. Management of Your account
4.1 After the Free Service session is completed, You will have the option to request the full Service which will enable You to become a paying customer.
4.2 A selected member(s) of Our dedicated team of account managers will be allocated to You once You start using the Free Service under this Agreement.
4.3 Terms and conditions of Service will be detailed in written form. In the event of any discrepancy between the Service terms stipulated hereunder and subsequent terms, the latter shall prevail.
5. Confidentiality and Data Protection
5.1 We will at all times keep confidential all information acquired as a consequence of the Agreement in respect of You or Your business, except for information already in the public domain or information which We are required to disclose by law, requested by any Regulator or reasonably required by Our professional advisors for the performance of their professional services.
5.2 You will at all times keep confidential all information acquired as a consequence of the Agreement in respect of Us, the Service, the Free Service or any Network Operator, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by Your professional advisors for the performance of their professional services.
5.4 We will treat Your End-User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purposes of making the Service and / or the Free Service available to You and providing any technical support required. We will make no further use of Your End-User Data without your specific authorisation.
6. Support services
7. Customer Charges and Payment
7.1 The provisions of this clause 8 only apply to Customers and do not apply to Non-Paying Customers.
7.2 You agree to pay all Charges due to Us in respect of making the Service available to You and Your access to and use of the Service (“Customer Charges”) by the prepayment method and in accordance with the terms as set hereof.
7.3 You agree to pre-purchase Transaction credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding number of Transaction credits for that period, 1 SMS message Transaction, for example, costing 1 corresponding unit Charge in eurocent (subject to any variation thereof) and allowing You to send 1 SMS message using the Service. Each Transaction that You conduct using the Service will therefore reduce the value of the Transaction credits available to You by 1 corresponding unit Charge in eurocent (subject to any variation thereof and as agreed with Your account manager).
7.4 Any Transaction credits purchased by You are only valid for the period in respect of which they have been allocated and any additional Transactions in such period over and above Your allocation shall not be possible.
7.5 You shall be solely responsible, by seeking adequate Transaction credit allocation(s) and checking Your remaining available Transaction credit level on Our website at www.infobip.com, for ensuring that You have enough Transaction credits to meet Your requirements from time to time and We shall not be in any way responsible or liable in the event that You have insufficient Transaction credits to meet Your requirements, and / or have exceeded Your Transaction credit allocation(s), for any period.
7.6 For the avoidance of doubt, a Charge will be incurred for every Transaction conducted by You regardless of whether it is successful.
7.7 If You do not pay any Customer Charges in accordance with the applicable payment terms, We reserve the right to, in Our sole discretion, suspend Your access to the Service and / or cease to allow any Transactions to be conducted by You until further payment is received by Us in full and cleared funds from You.
8.1 Either party may make use of the other party’s name and visual identity for publicity and marketing purposes, without prior consent. Should this be unacceptable to either party, the withdrawal of consent must be communicated in writing. Without limitation to the foregoing, no press release and / or any blog entry may be made by either party regarding this Agreement, without the prior consent of the other party.
9. Your Liabilities and Obligations
9.1 You warrant that You will not:
9.1.1 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used to send messages to any end-user for marketing purposes without that end-user’s explicit request for or prior consent to receiving them. If you are sending any message for commercial purposes to any of Your end-users , You must give those end-users the right to opt out of receiving any further messages sent by You for commercial purposes (and You shall promptly process any end-user’s election to opt out);
9.1.2 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used to convey messages to any end-user, the frequency and number of which is excessive in Our reasonable opinion;
9.1.3 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used for any improper, fraudulent, immoral or unlawful purpose;
9.1.4 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature;
9.1.5 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
9.1.6 Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used in a manner that may injure or damage any person or property or cause the quality of the Service and / or the Free Service to be impaired.
9.2 You will at all times during the continuation of the Agreement:
9.2.1 Send only messages that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offence in view of the generally prevailing standards of decency and propriety from time to time;
9.2.2 Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Service and / or the Free Service;
9.2.3 Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
9.2.4 Not act in any manner likely to bring Us, the Service, the Free Service or any Network Operator into disrepute.
9.3 You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Service and / or the Free Service that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete.
9.4 You will not state or imply any approval by Us of any particular message that You send using the Service and / or the Free Service or refer to Us in any way without Our prior written approval.
9.5 Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service and / or Free Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.
9.6 We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any message.
9.7 You will not acquire any title or other proprietary right to any intellectual property, including (but not limited to) any patents, know-how, registered or unregistered trademarks, design rights or copyright, relating to the Service and / or the Free Service, nor will You cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services we provide you.
9.8 You warrant that You are the sole owner or licensor or all rights in Your End-User Data or You have obtained all necessary rights, licences and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement.
10. INFOBIP Liability
10.1 Nothing in the Agreement will in any way exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraudulent misrepresentation or concealment or for breach of data protection obligations herein or for any other liability that cannot be excluded or limited at law.
10.2 We will not be in any way liable to You for any liabilities, losses, damages, costs and / or expenses incurred or suffered by You as either a Customer and / or a Non-Paying Customer as a result of (i) Your use of the Service and / or the Free Service; or (ii) Our negligence, or the negligence of Our affiliates, employees, shareholders, agents or service providers.
10.3 We will not be in any way liable for the content of any messages sent or transmitted using the Service, nor will We be in any way liable for any failure to make the Service and / or the Free Service available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control. We provide all services “as is” and “as available”, and We hereby do not warrant, represent or guarantee, whether expressly or by implication, that any Service and / or the Free Service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights.
10.4 Subject to any express provision to the contrary in the Agreement, We will not in any circumstances be liable to You (as either a Customer or a Non-Paying Customer) in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable.
10.5 Each of us acknowledges that neither You (as either a Customer or a Non-Paying Customer) nor We have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Agreement and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.
10.6 We shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations and rules having equivalent effect.
11. Term and Termination
11.1 Unless otherwise agreed with Your account manager and subject to earlier termination in accordance with these Terms and Conditions, the Agreement is for an initial minimum 12-month period (the “Initial Term”). The Initial Term will start on the Start Date (the day when you start using the Service or the Free Service) and expire on the End Date (the day corresponding the date in the month in which the initial service term expires). On the expiry of the Initial Term the Agreement will continue automatically unless and until either party gives the other 30 days’ written notice or either You or We otherwise terminate the Agreement in accordance with these Terms and Conditions.
11.2 If at any time You wish to terminate the Agreement, You must either:
11.2.1 Give Us written notice to that effect within the 7-working day period from and including the Start Date, such notice to take effect immediately; or
11.2.2 Give Us no less than 30 days’ written notice, such notice to take effect no sooner than the End Date (subject to any variation thereof). If You wish to terminate the Agreement with effect from any date preceding such End Date and are unable to do so for cause or any other reason under these Terms and Conditions, if you are a Customer under the Agreement then You must pay Us the Customer Charges due for each month (or part thereof) remaining of the minimum 12-month period post-termination, such Customer Charges to be calculated on the basis of the monthly Customer Charges as set out in the Signature Page (as varied if applicable), and any prepayment of Customer Charges that You have made to Us will not be credited or refunded.
11.3 Either party may also terminate this Agreement with immediate effect by notice to the other party if:
11.3.1 The other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading;
11.3.2 The other party commits a material breach of the Agreement and (where such breach is capable of remedy) fails to remedy the breach within 14 days of a written notice from the party not in breach requiring its remedy; or
11.3.3 Any licence required for Us to operate the Service and / or the Free Service is revoked, terminated or modified or, in the case of new licence requirements being imposed, the applicable licence:
18.104.22.168 Is not granted to Us; or
22.214.171.124 Is granted to Us but in such a way as to prevent Us from continuing to make the Service and / or the Free Service available or a Network Operator from enabling Us to make the Service and / or the Free Service available.
11.4 We may terminate the Agreement immediately on giving You 14 days’ written notice in the event that any relevant legislation of regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Service and / or the Free Service available.
11.5 If you are using the Free Service under this Agreement You acknowledge that We reserve the right to, at Our absolute discretion, stop providing the Free Service to You on either a temporary or a permanent basis for any reason whatsoever without any prior notice
11.6 Termination of the Agreement for any reason does not affect any rights that have accrued to either party under the Agreement up to the date of its termination and those terms and conditions of the Agreement that are by their nature capable of surviving termination will continue in full force and effect following such termination.
11.7 On termination of the Agreement:
11.7.1 You will immediately cease to use the Service and / or the Free Service; and
11.7.2 All amounts then owing to Us under or in connection with the Agreement will become immediately due and payable.
12. Force Majeure
12.1 Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and / or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion.
13.1 Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed), provided that either company shall be entitled without the other party’s consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any company that is, or is a subsidiary of, its ultimate holding company (as defined in section 736 of the Companies Act 1985).
14.1 Any notices to be given under the Agreement will be given in writing to the addressee at its address, its fax number or its email address as set out in the Agreement and will be deemed to have been received within 48 hours of posting first class or within 24 hours of sending if sent by facsimile transmission or email to the correct fax number or email address of the addressee.
14.2 Nothing in the Agreement will be deemed to constitute a partnership or joint venture between the parties or constitute any party the agent of the other party.
14.3 Any failure by either party to enforce any of the terms or conditions of the Agreement at any time will not be a waiver of those terms or conditions or of the right to subsequently enforce those or any other terms and conditions of the Agreement at any time.
14.4 In the event that any of the terms or conditions of the Agreement are held to be invalid or unenforceable, this will not affect the validity or enforceability of all remaining terms and conditions.
14.5 The Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, arrangements, representations and understandings between the parties relating to the subject matter of the Agreement, provided that We may make changes to any terms of the Agreement from time to time (other than any changes to Our charges or fees) where such changes are necessary to take account of a change in law, in which case We will notify You in advance of any such change and You will be entitled to terminate the Agreement within 30 days of receiving notice of the change.
14.6 A party who is not a party to the Agreement has no right to enforce or rely on any term or condition of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.7 The Agreement is governed by and shall be construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
SUMMARY TERMS AND CONDITIONS:
I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder's permission to use this service. By entering your phone number, you acknowledge that you agree to terms of service and are subscribed until you send STOP to Infobip Alerts subscription service, provided by Infobip with these carriers: Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, Nextel, Sprint, T-Mobile, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless but is not compatible with all handsets. Subscription enables you to receive alerts about what’s new with Infobip and you will receive no more than 2 msg per week, Msg&Data Rates May Apply. For help, Text "HELP" to 84566. To cancel, Text the word “STOP" to 84566 at any time. For customer support, call 302-451-9418.