GENERAL TERMS & CONDITIONS

1. GENERAL
1. Scope and Definitions
1. These Terms and Conditions (hereinafter: T&C) make an integral part of Agreement and shall apply mutatis mutandis to sellable items delivered by SUPPLIER to CLIENT pursuant to corresponding delivery order.
2. The purpose of these T&C is to set the rules under which the SUPPLIER will provide deliverables to CLIENT and rules under which the CLIENT will use deliverables provided by SUPPLIER.
3. The Parties acknowledge and agree that, in the provision of Services, SUPPLIER is providing a mechanism for the CLIENT to operate the Services and that SUPPLIER is not in any way authorizing, advising upon, endorsing or otherwise approving the Services. Accordingly the CLIENT acknowledges that it will remain responsible for the Services and agrees that the following conditions and limitations of SUPPLIER’s liability are fair and reasonable in the circumstances.
4. In case the CLIENT is not final user of Services, or provides part of the Services to its customer(s), the CLIENT is still responsible that all conditions for the use of Services from these T&C are followed and is solely responsible for all costs, damages and obligations occurred from not obliging these rules.
5. Unless the context requires otherwise, the following phrases shall have the following meanings in this Agreement:

• "Agreement" means the Master Agreement for provision of deliverables between the Parties comprising of these T&C and delivery order(s) and optionally SLA hereto as amended from time to time in accordance with this Agreement.
• "Delivery order(s)“ means any document(s) where commercial and other conditions for specific deliverables are specified and agreed.
• “Confidential Information“ means, without being limited thereto, the following information: designs, concepts, drawings, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, new product or new technology information, marketing techniques and materials, marketing plans, timetables, strategies and development plans (including prospective trade names or trademarks), customer names and other information related to customers, pricing policies, and financial information. "End User" means any third party which may be using the deliverables provided to CLIENT by SUPPLIER, offered to End Users by CLIENT.
• "End User Information" means any information of any kind such as but not limited to, demographic or personal information, data or records relating to End Users and/or their use of the deliverables, including names, addresses, telephone numbers, account information, security information, usage statistics, communications exchanged or transactions conducted.
• “Fees” means fixed fees, variable fees and traffic fees, as further described in the relevant delivery order(s). “Inappropriate content“ means any material which is or may be deemed to be obscene, indecent, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights.
• “Intellectual Property Rights“ means patents, trade marks, service marks, trade names, design rights, copyright (including rights in computer software), database rights, know-how and other intellectual property rights (of whatever nature and wherever arising) whether registered or unregistered including applications for the grant of any such rights.
• “Partners“ means operators and companies contracted by SUPPLIER for provision of deliverables.
• “Service-level agreement (SLA)“ means a service agreement where the level of deliverables is formally defined.
• “Territory“ means the Country/Countries where deliverables are (i) reachable for End Users and/ or (ii) used by the CLIENT.
• “End User price“ means the cost of usage of the service(s) for End User.
• “Operator“ means a telecommunications service provider organization that provides wireless and fixed voice and data communication for its End Users.
• “Media” – newspaper, leaflet, television, teletext, Internet website, etc. – that allows advertising of the Services and its accessibility to the End Users.
• “Regulator” means relevant independent regulatory body responsible and approved for the supervision and regulation of Services in the Territory.
• “Short Code” means a code of several digits from the number ranges determined in the Territory's national number plan, allocated to the mobile operator.
• “SMS” means Short Messaging Service. This service allows the sending and/or receiving of alphanumeric or binary messages on a mobile phone.
• “Bulk SMS” means SMS-MT service consisting of the sending of SMS-MT message by CLIENT towards one or several End Users. The Bulk SMS service is characterized by the fact that this SMS is free for the mobile End User and paid by the CLIENT.
• “SMS-MT” means SMS Mobile Terminating. It is a SMS received by a mobile phone.
• “SMS Premium” means a SMS-MO or SMS-MT with an applicable rate higher than or equal to the applicable rate for a SMS national standard containing a specific value.
• “SMSC” means Short Message Service Center. It is the platform managing the sending and receiving of SMS messages on the mobile network of the operator.
• “Content“ means the products/services provided by the CLIENT to End Users via Service provided by SUPPLIER. “Partners“ means mobile and fix operators and companies contracted by SUPPLIER for provision of Premium services.

1. Delivery
1. The SUPPLIER shall provide CLIENT at no charge with technical specifications and interface specifications necessary for CLIENT to perform its obligations under this Agreement.
2. Upon delivery of the Service to the CLIENT, SUPPLIER shall test the Service with the CLIENT to determine correct functioning of the service for free.
3. The SUPPLIER will maintain equipment reasonably suitable for handling any Service(s) and makes no warranty that Service(s) will be continuous or free from faults.
2. Client's obligations
1. During the Term, the CLIENT must:

1. comply with all applicable laws, regulations, requirements of any Partner, government or statutory body in the Territory and any applicable industry standards or codes whether compliance is voluntary or not;
2. comply with reasonable directions and policies of SUPPLIER as notified or amended from time to time;
3. provide the SUPPLIER with information or material regarding the Services offered to End Users upon request;
4. implement and maintain appropriate security procedures to prevent damage and/or fraud or improper usage or unauthorised usage of the Services;
5. not do anything likely:
• to give rise to liability to the SUPPLIER without prior written consent; or
• bring the SUPPLIER into disrepute or damage SUPPLIER’s business in any way.

1. The CLIENT must not use SUPPLIER’s name, trade marks, or copyrights in any way that implies any approval or connection with the Services or products offered by the CLIENT.
2. CLIENT shall include in its SMS Messages information which reasonably enables End User to identify and contact the CLIENT.
3. CLIENT shall not send SMS Messages to any End User unless:

• the End User has provided the CLIENT with prior consent to send SMS Messages; or
• the End User has a prior commercial relationship with the CLIENT and would reasonably expect to receive SMS Messages from CLIENT.

1. The CLIENT shall provide the End User with an “opt-out” mechanism by which the End User can at any stage notify the CLIENT not to send further SMS Messages to the him. Such mechanism must be both easy to use and inexpensive for End User (e.g. by sending SMS, or by calling geographical number or by sending e-mail). For example, the CLIENT might include in its SMS Message an option for the End User to send the command “STOP” to the number 12345 whenever he/she wishes to “opt out“.
2. The CLIENT shall comply as soon as practicable with any notification it receives under article 1.3.5. and will not send further SMS Messages to the End User unless and until the End User requests or consents to receiving further SMS Messages.
3. The CLIENT shall not send any SMS Message which:

• is misleading or deceptive; or
• could infringe a law or regulation (including but not limited to defamation, discrimination, invasion of privacy, harassment, obscenity, infringement of intellectual property rights or breaches of confidentiality); or
• could reasonably be regarded as offensive to public morals, decency or sensibilities; or
• threatens the operation and/or security of any computer system, telecommunications network or equipment (including the operation of a mobile handset); or
• induces an unacceptable sense of fear or anxiety; or
• is regarded as a chain letter, junk SMS/MMS message, spam, or otherwise an unsolicited message (commercial or otherwise); or
• is used to collect information about End Users without their consent.

1. Any SMS Message inviting a response by means of calling a premium rate number shall include full details of the call charges and any additional information required by the law or any applicable regulation.
2. The CLIENT must ensure possessing all necessary licenses, permits, and other forms of authority and permissions necessary for the delivery of content sent via SMS Message. Any unauthorized commercial use of the SMS Messages is expressly prohibited.
3. In case the CLIENT is not final user of SUPPLIER’s services, the CLIENT is still responsible that all communication processed using SUPPLIER's services is solicited and in accordance with SUPPLIER’s antispam policy.
4. If the CLIENT breaches any clause of these Terms and Conditions, SUPPLIER has the absolute right in its sole discretion to immediately suspend or terminate, without compensation, part or all Services provided to the CLIENT. Written reasons for such suspension or termination shall be provided promptly to the CLIENT.
5. SUPPLIER has the right to charge a contractual penalty of 5.000,00€ to the CLIENT in each case when communication processed using SUPPLIER's services is not solicited and/or is not in accordance with these T&C, especially with article 1.3.7. (including, but not limited to communication with misleading or deceptive sender ID). Upon discovering about breach of these T&C, SUPPLIER will immediately notify the CLIENT and only if the CLIENT continues to violate these T&C, the SUPPLIER, after providing the proof of such breach and a proof that its suppliers, at their turn, charged the SUPPLIER penalties for the traffic sent by the CLIENT, then the SUPPLIER may send to the CLIENT the contractual 5000.00 EUR penalty invoice, and the CLIENT will pay the invoice 30 days after recipient of the invoice.
6. Without prejudice to clause 1.3.12. above, SUPPLIER may charge the CLIENT a fee of 10€ per each SMS which is not solicited and/or is not in accordance with these T&C, especially with article 1.3.7. (including, but not limited to communication with misleading or deceptive sender ID).
7. Should SUPPLIER receive a complaint from any person or body or regulator concerning any SMS Message sent by the CLIENT, the CLIENT shall fully co-operate with SUPPLIER to investigate and resolve such complaint without delay. Where SUPPLIER believes it appropriate, the CLIENT shall take full responsibility for managing the response to the complaint. In such circumstances, the CLIENT shall provide regular updates to SUPPLIER on the status of the complaint and provide such other information concerning the complaint as SUPPLIER may from time to time request.
8. For the avoidance of doubt, SUPPLIER shall not be monitoring the content of any SMS Messages sent by the CLIENT and SUPPLIER shall not be responsible for the content of such messages.

1. PAYMENT

2.1. The deliverables shall be provided to CLIENT at the pricing determined in delivery orders and corresponding commercial condition documents.

2.2. The prices and other amounts stated in this Agreement do not include the statutory value added tax (VAT). This tax will be charged according to the tax rate effective at the date of invoice and stated separately on the invoice.

2.3. Unless expressly defined in delivery order(s). the SUPPLIER and the CLIENT agree that the SUPPLIER shall set off any agreed monthly and usage fees as well as other existing costs and claims against CLIENT's payout in case there is any payout and such payout is enough to cover such fees and claims. For the avoidance of the doubt, if the CLIENT and the SUPPLIER have signed more than one delivery order, costs attributable to these various kinds of delivery orders may be set off against different payouts generated by the CLIENT.

2.4. If Client does not make the payment in 5 days after recipient of the collection letter, the SUPPLIER shall be entitled to deactivate the deliverable(s). This does not discharge CLIENT from its payment commitments. After payment of unpaid invoices by CLIENT, the deliverable(s) shall be reactivated. If applicable, activation costs made by SUPPLIER shall be reimbursed by CLIENT.

2.5. In case Partner(s) change existing prices and/or conditions and rules for the use of the Services towards SUPPLIER, SUPPLIER is entitled to pass on these changes the CLIENT according to same terms. SUPPLIER shall inform the CLIENT about such changes as soon as such changes have come to SUPPLIER's knowledge.

2.6. All charges shall be calculated according to conditions defined in delivery order(s) by reference to data properly recorded by Partner, if not defined otherwise in delivery orders. In the event of any conflict between the data held by CLIENT (or its customer(s)) and Partner’s data, CLIENT shall be entitled to submit bona fide data relating to its use of the deliverables and both SUPPLIER and CLIENT agree, acting reasonably, to consider both sets of data, and to reach a resolution. In the event of any dispute lasting for over 30 days, data provided by Partner to SUPPLIER shall have precedence. In the event of deviations not exceeding 3%, the Parties shall accept the data provided by Partner.

2.7. The SUPPLIER's billing information is only considered as control and compare information but is in no case relevant for the calculation of the fees.

2.8. The CLIENT and SUPPLIER agree that CLIENT shall commence with commercial traffic via delivered Service in ninety (90) days after the delivery date. In case no real traffic is generated and the Service(s) are used for testing or non-commercial purposes only, the SUPPLIER has the right to cancel that Service with previous notice to the CLIENT and after such cancellation is no longer bound by commercial conditions agreed for that Service.

2.9. The CLIENT shall make any and all undisputed payments by way of bank transfer or any other way agreed by the Parties to the SUPPLIER in such currency as specified in delivery orders and according to exchange rate defined in delivery orders.

1. CONFIDENTIALITY
1. Each Party shall keep confidential and shall not without the prior written consent of the disclosing Party copy or disclose to any third party any Confidential Information and the content of any documents of information which is designated by means of appropriate text to be of confidential nature of which by nature obviously is confidential acquired from the other Party in connection with this Agreement. Each Party shall copy and use such documents and information solely for the purpose of this Agreement.
2. The foregoing obligations shall not apply to any information which;

• is within the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving Party; or
• was known to the receiving Party prior to disclosure by the disclosing Party as proven by the written records of the receiving Party; or
• is disclosed to the receiving Party by a third Party who did not obtain such information, directly or indirectly, from the disclosing Party.

Affiliated companies of Parties shall not be considered third parties in the sense of this clause.

1. All End User Information shall be and remain the property of the CLIENT (subject always to any rights that any third party may have in such information). The CLIENT grants to SUPPLIER a non-transferable licence for the term of this Agreement to use the End User Information, where necessary, for the sole purpose of providing the deliverables.
2. Both Parties shall comply with the provisions of the applicable data protection laws and regulations and other relevant legislation where and to the extent that such provisions relate to that party.
3. The obligations under this Clause shall bind the Parties for a period of five (5) years from the termination of this Agreement.
1. FORCE MAJEURE

Neither Party is under any liability for any failure to perform any of its obligations under this Agreement due to any cause not within its control including, without limitation, lock-outs, strikes, other industrial disputes, riots or civil commotion, wars (whether declared or not), revolutions, coup d’état, expropriation of confiscation for public needs, embargo, discontinuation of public or private transportation or supply of energy, general local or national collapse of networks, fire, flood, storm, earthquake, lightning, sabotage by third Parties, and other acts not caused by the Parties, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain power used in any kind of equipment and outages elsewhere on the Internet or failure of the Internet or some other unusual event which causes equally drastic effects beyond the affected Party's control. Following notification by either Party to the other of such cause, such Party shall be allowed a reasonable extension of time for the performance of its obligations.

1. INTELLECTUAL PROPERY RIGHTS

Nothing in this Agreement shall entitle either Party to use the other Party's name, logo or trademark in any way or any context whatsoever without the prior written consent of the other Party.

All title, ownership rights and intellectual property rights in and relating to this Agreement or any copies thereof including but not limited to copyright, logos, names, trademarks, service marks, design, text, sound recordings, images, links, concepts and themes are owned by originating party and shall remain its property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to other party or any third party.

1. ASSIGNMENT

The SUPPLIER may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations to any third party or agent. CLIENT does not have the right to assign this Agreement and/or any of its obligations according to this Agreement without the prior written consent of the SUPPLIER.

1. NOTICES

All notices and communications under this Agreement shall be delivered by personal delivery or courier service, by registered mail, by e-mail or by facsimile message.

1. 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.

1. LIABILITY

9.1. The CLIENT shall at all times indemnify and keep fully and effectually indemnified SUPPLIER against all liabilities (including damages, expenses, regulatory fines, penalties and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever (including, but not limited connected to the violation of the intellectual property rights) arising directly or indirectly out of or in consequence of the marketing, provision or use of any deliverables delivered by SUPPLIER to CLIENT or the associated services of the CLIENT or the conduct of CLIENT's business. SUPPLIER shall as soon as reasonably possible give notice to the CLIENT of any such action proceeding, claim or demand.

9.2. In the event of any actual or apparent breach by the CLIENT of any of its or obligations under this Agreement, the SUPPLIER may at its sole and absolute discretion, forthwith suspend or cease or modify the provision or performance of any of its obligations, or any of the deliverables (or part thereof) either temporarily or permanently; take such actions to remedy or otherwise deal with the situation as it deems fit in its sole and absolute discretion, including in the areas of public and customer relations and obtaining legal or technical advice. All costs incurred by the SUPPLIER in this regard, including any time, labor and professional costs of any employee, officer, contractor, servant, agent or other SUPPLIER's personnel or third parties engaged by the SUPPLIER, shall be reimbursed by the CLIENT to the SUPPLIER on a full indemnity basis (including, where applicable, legal costs on a solicitor-client basis).

9.3. SUPPLIER shall not be liable for any damages and costs incurred or suffered by CLIENT, its representatives or any other person except in the event of the willful and serious misconduct of SUPPLIER. In no event shall SUPPLIER be liable for any special, incidental or consequential damages, or lost revenue or profits, or lost or damaged data, or any indirect damages, whether arising in contract, tort, or otherwise.

9.4. Without prejudice to the generality of the foregoing, the aggregate cumulative liability of the SUPPLIER shall not exceed the total amount of fees paid by the CLIENT to SUPPLIER in the immediately preceding 12 months whether in contract or tort (including negligence or breach of statutory duty) or otherwise arising out of or in connection with this Agreement, save for claims arising from death or personal injury caused by negligence.

1. SEVERABILITY

If any term or provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent only and be severed form this Agreement, provided that if the commercial basis of this Agreement is thereby substantially affected or altered, the Parties shall negotiate in good faith to amend and modify the terms and provisions of this Agreement as may be necessary or desirable in the circumstances. In any event, the invalidity or unenforceability of any term or provisions of this Agreement shall not impair the enforceability or the remainder of this Agreement, which shall remain in full force and effect and shall be construed as if the invalid or unenforceable term or provision was omitted.

1. TERM AND TERMINATION

11.1. This Agreement is valid until each delivery order signed between the Parties is terminated.

11.2. Except otherwise agreed in delivery order, each delivery order enters into force upon signing. After initial minimum duration, each specific delivery order is prolonged for indefinite term, with a right for each Party to terminate the delivery order (or service delivered pursuant to specific delivery order) with cancelation period defined in delivery order by written notice.

11.3. The Parties expressly confirm that cancelation period defined in delivery order shall be prolonged in case the SUPPLIER has longer cancelation period towards its Partners for a service delivered pursuant to delivery order that is cancelled.

11.4. Either Party may terminate this Agreement immediately upon written notice delivered by registered mail if:

• the other Party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 5 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
• the other Party goes into liquidation, bankruptcy or insolvency proceedings;
• the other Party ceases, or threatens to cease to carry on business;
• a written agreement on contract termination is stipulated by the Parties;
• the case of Force Majeure prevails for a continuous period in excess of 30 days.

11.5. For purposes of and pursuant to this paragraph, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time is not of essence).

11.6. SUPPLIER is entitled to terminate the Agreement immediately upon written notice delivered by registered mail:

• in case that the CLIENT would cause, for whatever reason, a direct danger to the functioning of the SUPPLIER and/or to the strategic interests of SUPPLIER
• in case that the CLIENT assigns this Agreement, sub-contracts or otherwise delegates any of its rights and obligations under this Agreement, without prior written approval of SUPPLIER.
• the CLIENT infringes the intellectual property of SUPPLIER.
• the CLIENT infringes the confidentiality obligations from Article 1.3. of these T&C.

11.7. Any termination of this Agreement shall be without prejudice to any other rights or remedies that a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party.

1. VARIATIONS OF THE TERMS AND CONDITIONS

12.1. These T&C are subject to changes from time to time which shall take effect immediately upon the CLIENT receives modified T&C by e-mail.

12.2. The CLIENT may also be required to acknowledge any changed T&C within a stated notice period to be able to continue to use SUPPLIER's deliverables and SUPPLIER reserves the right to terminate this Agreement if this is not done.

12.3. The Client may, within 14 days of receipt of modified T&C, terminate this Agreement by notice in writing to the SUPPLIER. This Agreement would then be terminated 15 days after the SUPPLIER receives notification of termination from the CLIENT, with limitations stated in article 11.3. of these T&C.

12.4. Where no acknowledgement is required, CLIENT's use of the deliverables following any changes of T&C will constitute CLIENT's acceptance of those changes to the T&C.