END USER LICENCE AGREEMENT
These Terms and Conditions (“Terms” or “Agreement”) represent a binding agreement between INFOBIP and You (“CLIENT”), together referred to as “Parties”. It is important that You understand Your responsibilities and the limitations to the services which You choose to use. Our services are diverse and as a result additional service specific terms may apply. If this is the case, these service specific terms shall become part of Our agreement.
Please use Our services responsibly. By using Our website or any of Our services, You agree to Our Terms. Take note that these Terms change from time to time. If You have used Our services before, You cannot assume that the Terms are still the same. You should review them on a regular basis as the same will be published online with the date of the last change noted at the top.
1.1. You wish to use INFOBIP services (meaning services as provided under these Terms; hereinafter “Service,” or the “Services”).
1.2. INFOBIP means INFOBIP LTD, a company registered in the United Kingdom and whose registered office is situated at 5th Floor, 35-38 New Bridge Street London EC4V 6BW (hereinafter “INFOBIP”; “We”; Our”; “Us”).
1.3. You wish to use the Services and We are willing to make the Services available to You subject to and in accordance with these Terms
1.4. Partner means a company authorized by INFOBIP to distribute Services and, if agreed, provide support to the Client related to the Services.
1.5.“Related Company” shall mean a company directly or indirectly controlling or being under direct or indirect control of a Party. Direct control shall mean holding at least of 25% of shares or voting rights in such company and indirect control shall mean either: a) holding 25% of shares or voting rights in the company through another company or group of companies under the same control b) is a member of such company and/or has the right to appoint or remove a majority of its board of directors; c) is a member of such company and controls, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it or the right to appoint or remove a majority of its board of directors; or d) controls such company through appointed nominee shareholders
2.2. You are not eligible to accept these Terms or use Our Services if You are not of legal age to form a binding contract with Us or if You are barred by law to use Our services.
The Service enables a Client to use Our mobile services as set out as part of Your online registration. Any such billable unit under the Services shall be referred in these Terms and Conditions as a “Chargeable Event”. Any individual Service that You will use shall be provided in accordance with the respective particulars, that You hereby accept, as found on – https://www.infobip.com/policies/service-description ( hereinafter „Service Terms“). By signing this Agreement, You accept the application of the Service Terms and confirms that You is familiar with them. INFOBIP reserves the right to change or modify the Service Terms at any time and in its sole discretion.
4.1. We will make the Services available to You using reasonable skill and care. You do however acknowledge and agree that the availability of the Services, Your ability to access and/or use the Services and the conducting of any given Chargeable Event may depend upon factors beyond Our reasonable control, including (but not limited to):
- Factors affecting the operation of the Services and/or preventing Chargeable Event 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
- Factors preventing end-users from receiving Chargeable Events such as, by way of example, the terms and conditions of an end-user’s service provider.
We cannot therefore guarantee:
- That the Services will be available to You at all times or free from faults or interruptions;
- The receipt by any intended recipient of any Chargeable Event sent using the Services (as applicable).
4.3. We will not be in any way liable for any failure to make the Services 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 Services are free of errors or interruptions, always available, fit for any purpose, secure or do not infringe any third party rights.
4.4. We may, at Our sole discretion, alter or improve the Services 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 Services.
4.5. It may be necessary from time to time for Us to suspend the Services that We provide to You for reasons such as but not limited to – routine or emergency maintenance and/or repairs, reasons to believe there was a violation of these Terms by You, a request by an authorized entity such as an Operator or a Government Authority – We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.
- We may at Our sole discretion suspend Your access to the Services and/or cease to allow any Chargeable Events to be conducted by You at any time. We are entitled to terminate these Terms for any reason, in which case We will give You appropriate notice as soon as is reasonably possible.
- 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. You can reactivate the account with a request to INFOBIP sent 3 (three) working days prior to the required reactivation.
5.1. In order to provide Our services, We may require certain information. You must ensure that the information is complete and accurate. We may suspend or terminate any service if You give information that is not complete and accurate. You warrant that all information You provide to Us is complete and accurate and You indemnify INFOBIP against any liability that may arise as a result of Your failure to provide complete and accurate information. You must immediately notify Us if any of Your information changes.
5.2. We will provide You with a user name or Client ID or ask You to choose authentication credentials for each account. We may change, cancel or suspend Your account, which You will be notified about.
- must keep Your username, Client ID, password, ApiKey, login token or any other secret authentication credential confidential;
- must not circumvent, or attempt to circumvent, Our user authentication systems;
- must inform Us immediately of any unauthorized use of Your account or any other breach of security, including suspected doubts of such scenarios;
- are entirely responsible for all payments and any activities that occur on Your account;
- are liable for any damage, loss or costs that we or any third party may sustain as a result of any of Your actions, or any actiony use of Your authentication credentials, account name or account information by a third party or as a result of Your violation of this section.
- are responsible for authorized and unauthorized use of Your account in case any of the security recommendations (point 5.4) are not or had not been implemented from Your behalf at the moment of questionable activity on Your account (i.e. in scenarios where, due to Your inability to implement maximum security measures available at Your disposal, a potential unauthorized activity had taken place). This includes (list not exhaustive): service login, subsequent data insight, sending messages traffic, payments. Responsibility for these activities includes assuming liability for any damage, loss or costs that Infobip or any third party may sustain as a result of these activities;
- must cooperate with Us during the resolution of potential unauthorized use of Your account, regardless of its cause and source of initial reporting.
5.4. You are mandated to follow Security recommendations (depending on the channels / Services used), available on the following link -> https://www.infobip.com/docs/essentials/security-recommendations. For any questions, as well as in case of security compromise of Your authentication credentials (username & password, ApiKey), You should contact INFOBIP immediately via [email protected].
6.1. You will at all times keep confidential all information acquired as a consequence of using Our Services, 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. When using Our Services, You shall comply with all laws and regulations applicable to the use of the Services and with Our Terms or any other terms as agreed between us.
6.2 Client hereby warrants that it is entitled to disclose all personal data based on this Agreement to INFOBIP, in particular, it obtained all necessary permissions from its end-users for such disclosure. Additionally, Client shall ensure that its collection, access, use and disclosure of end-user information complies with the applicable data protection laws.
6.3. Client declares and confirms that it is a controller of personal data provided to INFOBIP based on this Agreement. In particular, the Client is obliged to (i) fulfil all legal requirements relating to the protection of personal data, (ii) protect the interests of end-users with due care and, in particular, to ensure that data are processed lawfully and (iii) undertake all necessary security measures protecting the personal data database and all personal data.
6.4. INFOBIP hereby declares that it shall fulfil all legal obligations connected with processing of personal data obtained from the Client based on this Agreement, in particular, it implemented appropriate ICT system safety standards and measures to protect personal data obtained from the Client based on this Agreement.
6.5. The Client acknowledges that the Services include certain features and functionalities that INFOBIP requires, as a minimum standard, for the Client to implement and use since those may impact the security of the data processed by the Client’s use of the Services. The list of security rules and recommendations, maintained by INFOBIP in accordance with applicable best practices, is regularly updated and available to the Client at https://www.infobip.com/docs/essentials/security-recommendations. The Client is responsible for the proper configuration of configurable parameters and usage of the available features and functionalities to maintain the appropriate level of security considering the nature of the data processed through Services. In case the Client chooses to apply weaker security measures than those required recommended by INFOBIP, the Client accepts related security risks and INFOBIP disclaims any liability for consequences that may arise from such usage of INFOBIP’s Services. In case the Client implements significant changes to the security measures, that would require any actions by the Client, the Client will be timely notified in advance through agreed communication channels.
6.6. With respect to the processing of personal data the Client shall enter in a legally binding written agreement with a Partner, as required under Article 7 of this Agreement. If the Client wants to enter into a data processing agreement with INFOBIP, a pre-signed version of our data processing agreement along with instructions on how to execute it is available HERE. The completed and signed data processing agreement should be sent to INFOBIP via email as per the instructions. It will become legally binding upon receipt of the duly completed and signed data processing agreement.
7.1. Client confirms it is fully aware of the processing of Client’s personal data neccessary to provide the Services by INFOBIP and, if applicable, by the Partner.
7.2. If Client purchases Services from a Partner and chooses to provide a Partner with administrator priviledges to provide support or for any other reason, it is up to the Partner and the Client to contractually agree upon Partner’s administrative priviledges and access to Client’s data. Such agreement shall specifically include details of support services provided by Partner and Partner’s obligations related to the processing of Client’s personal data.
7.3. With respect to the processing of Client’s personal data, neither the Partner nor the Client will hold INFOBIP liable for any loss or damage that occured through the fault of Partner and/or Client.
7.4. Client appoints Partner as its agent to provide and receive notices and other communications to and from INFOBIP unless otherwise agreed between Parties.
7.5. If Client orders Services from a Partner, the Partner and the Client will set pricing and payment terms for that order in a separate agreement. Pricing and payment terms related to orders placed by Client directly with INFOBIP shall be set in a separate agreement between INFOBIP and the Client.
In the event the usage of these Services are charged to You by a Third Party which is officially licenced to do so by INFOBIP, the terms agreed between You and such Third Party shall apply.
In the event You are making payments to INFOBIP directly in respect of the Services used the following shall apply:
9.1. 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 (“Client Charges”) by the prepayment method and in accordance with the terms as set hereof.
9.2. You agree to pre-purchase 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 credit. Each Chargeable Event that You conduct using the Service will therefore reduce the value of the credits available to You by the corresponding amount.
9.3. Any change in prices that might occur for one or more destinations shall be communicated do You via email and/or noted on our website.
9.4. You shall be solely responsible, by seeking adequate Chargeable Event credit allocation(s) and checking Your remaining available Chargeable Event credit level on Our website, for ensuring that You have enough Chargeable Event 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 Chargeable Event credits to meet Your requirements, and/or have exceeded Your Chargeable Event credit allocation(s), for any period.
9.5. For the avoidance of doubt, a Charge will be incurred for every Chargeable Event conducted by You regardless of whether it is successfully delivered.
9.6. If You do not pay any Client 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 Chargeable Event to be conducted by You until further payment is received by Us which fully covers any unpaid Charges.
9.7. You are responsible for the payment of all bank and finance charges. Please ensure that the amount received on Our bank account, after deductions, corresponds to the full amount You owe Us.
9.8. You will not be able to receive any refund for the payment made (“No refund, exchange only”). The latter shall not prevent any refund to be made according to the applicable Client protection laws.
Parties hereby grant each other the right to use and display each other’s name and logo („Trademarks“) for promotional means on the respective websites or other promotional material, however, restricted solely in connection with the services provided under this Agreement. Any usage under this clause shall be done according to the proprietor Party’s guidelines as they may be provided from time to time. Neither Party shall use the other Party’s Trademarks in any manner that will disparage, harm or otherwise damage the other Party’s goodwill in its Trademarks. The Party using the Trademarks shall not, at any time, misuse the same or present itself as an affiliate or other legal agent of the Party whose Trademarks are being used. Any rights and linked usage of Trademarks granted under this Section shall be immediately discontinued in the event this Agreement is terminated.
11.1. You warrant that You will not:
- Use the Services or permit the Services to be used to send Chargeable Events 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 Chargeable Event for commercial purposes to any of Your end-users, You must abide by the telephone marketing practices of the end-users’ jurisdiction, including but not limited to, obtaining prior express written consent from those end-users, and give all end-users the right to opt out of receiving any further Chargeable Events sent by You for commercial purposes (and You shall promptly process any end-user’s election to opt out);
- Use the Services or permit the Services to be used to convey Chargeable Events to any end-user, with a frequency and in numbers which are excessive in Our reasonable opinion;
- Use the Services or permit the Services to be used for any improper, fraudulent, immoral or unlawful purpose;
- Use the Services or permit the Services to be used for the transmission of any material which is of a defamatory, offensive, illegal, abusive, obscene or menacing character or nature;
- Use the Services or permit the Services to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
- Use the Services or permit the Services to be used in a manner that may injure or damage any person or property or cause the quality of the Services to be impaired.
11.2. You will at all times during the duration of the Agreement:
- Send only Chargeable Events that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offense in view of the generally prevailing standards of decency and propriety from time to time;
- Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Services;
- Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
- Not act in any manner likely to bring Us, the Service or any Network Operator into disrepute.
11.3. You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Services 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.
11.4 You shall be solely responsible for any legal liability arising out of or relating to the Content and Your usage of the Services.
11.5 The Services provided under these Terms are extended to You only and it is strictly forbidden to share, resell or otherwise give access or use to the same to any third parties, whether charged or free of charge – without the prior written consent of INFOBIP.
11.6 Your Content shall not contain information which is unsolicited, offensive, threatening or abusive or which otherwise is of criminal or unethical nature according to the applicable law(s). INFOBIP shall not be liable for any damages, including any consequential loss, incurred by You because of any contravention with this Section 10.
11.7. You will not state or imply any approval by Us of any particular Chargeable Event that You send using the Services or refer to Us in any way without Our prior written approval.
11.8. Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.
11.9. We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any Chargeable Event.
11.10. You warrant that You are the sole owner or licensor of all rights in Your End-User Data or You have obtained all necessary rights, licenses 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.
11.11. CLIENT represents and warrants to INFOBIP that it shall, when using the INFOBIP Services in order to reach End-Users in South Africa, comply with the Wireless Application Service Providers Association’s (WASPA) Code of Conduct in force from time to time (https://waspa.org.za/code-of-conduct/). The Code of Conduct is primarily aimed at consumer protection with specific references, which primarly include but are not limited to, consumer consent and permission to direct marketing, prohibited times for direct marketing and consumers’rights and mechanisms to opt-out from any future direct marketing communications. 11.12 Any individual Service that You will use under these Terms shall be provided in accordance with the respective particulars, that You hereby accept, as found on – https://www.infobip.com/policies/service-description.
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFOBIP SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER SRVICES OBTAINED THROUGH THE SITE; (iii) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR VERIFIED PROFILE; AND (iv) ANY OTHER MATTER RELATING TO THE WEBSITE AND/OR THE SERVICES OFFERED ON THE WEBSITE.
12.2. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE INFOBIP ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.3. You agree to indemnify and hold INFOBIP, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, Related Companies and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against INFOBIP by any third party due to, arising out of or in connection with Your use of the website and/or the Services.
12.4. We will not be in any way liable for the content of any Chargeable Events sent or transmitted using the Service and the full responsibility for their content shall rest on You. You must observe all relevant legislation and regulations applicable in Your jurisdiction and in the jurisdiction of all persons with whom You communicate directly when using the Service. By using the Service You also agree to be bound by the Rules of Use.
12.5. Notwithstanding the foregoing, You acknowledge You will be solely responsible for any legal liability arising out of or relating to the Content and Services (whether transmitted on Your own or on any Third Party’s behalf).
12.6. Subject to any express provision to the contrary in these Terms, We will not in any circumstances be liable to You 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.
12.7. Each party acknowledges that neither You, 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 Terms 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.
12.8. We shall at all times in respect of the subject matter of these Terms comply with all applicable laws, regulations and rules having equivalent effect.
12.9. You shall be responsible for explaining and answering to any complaints that We receive from any relevant regulatory body resulting from Your use of the Service. We will forward any complaints to You as soon as it is reasonably possible. You must follow the applicable complaint procedures and respond to each complaint within the timeframes specified by the relevant regulatory body and must forward a copy of Your response to Us immediately. You will be liable for any fines and/or penalties imposed by any regulatory body against You or Us or any of our associated companies, due to Your contravention of these Terms.
13.1. Either Party can terminate this agreement at any time by notice to the other Party with or without cause.
13.2. Either party may also terminate this Agreement with immediate effect by notice to the other party if:
- 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;
- 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
- Any license required for Us to operate the Services is revoked, terminated or modified or, in the case of new license requirements being imposed, the applicable license: Is not granted to Us; or Is granted to Us but in such a way as to prevent Us from continuing to make the Services available or a Network Operator from enabling Us to make the Services available.
13.3. We may terminate the Agreement immediately upon notice in the event that any relevant legislation or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Services available.
13.4. 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.
13.5. On termination of the Agreement:
- You will immediately cease to use the Services; and
- All amounts then owed to Us, under or in connection with the Agreement, will become immediately due and payable.
- You will forfeit any unused credit on Your account, except for payments received by us within seven (7) days prior to termination.
- All licenses and rights granted under these Terms will terminate immediately.
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.
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 We shall be entitled without Your prior written consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any affiliated company.
16.1. All content, trademarks and data on our website, including software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to Us, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to You in these Terms, all other intellectual property rights on this website are expressly reserved.
16.2. We may grant You an individual, personal, non-exclusive and non-transferable license (“the License”) to use our proprietary software or application service, in object code form only, and only in accordance with the applicable Service Specific terms and other documentation, if any, and only in conjunction with the relevant services. You may not reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of our software; modify, translate, or create derivative works based on the software or application; copy, rent, lease, distribute, assign, or otherwise transfer rights to the software or application; or remove any proprietary notices or labels with regard to our services. We retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights in it. 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.
16.3. These Licenses terminate when Our contract with You ends and You must destroy and stop using all of our software and applications in Your possession. The software is provided and applications are offered “as is” and subject to the service warranty disclaimers and limitations of liability found elsewhere in these Terms. It is Your responsibility to test the services before entering into this contract.
16.4. Content from Our website may not be used or exploited for any commercial and non-private purposes without Our prior written consent.
If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
These Terms shall be governed by and construed in accordance with laws of the England and Wales and the parties hereto submit to the non-exclusive jurisdiction of the London courts for the purpose of enforcing any claim arising hereunder.
You confirm that You hold the account corresponding to the data You have provided Infobip with, or that You have the account holder’s permission to use this service.