General Terms and Conditions
1.1. Service Suspension. SBT may modify, suspend, limit, restrict, and place conditions on the Services, and/or terminate this Services Order, with thirty (30) days advance notice (unless advance notice is not feasible or practicable under the circumstances), if:
1.1.1. necessary to comply with applicable laws, regulations, or requirements of wireless service providers, Short Code providers/licensors, mobile industry associations, and regulatory/governmental authorities or other third parties related to the Services;
1.1.2. a law or regulatory action prohibits, impairs or makes impractical or uneconomical the provision of the Services;
1.1.3. there is the use of the Services which SBT determines may create liability or may be fraudulent, illegal, improper or in violation of the Acceptable Use Policy;
1.1.4. there is improper use or disclosure of the API;
1.1.5. there is improper use, sharing or disclosure of the Customer’s licenses, ID or passwords; and/or
1.1.6. Customer ceases to do business as an ongoing business concern or becomes subject to proceedings of bankruptcy, receivership, insolvency, liquidation or assignment for the benefit of creditors provided.
1.2. Effects of Termination. Upon the expiration or termination of the Services, Agreement or Services Order for any reason: (i) Customer is solely responsible for procuring any new or replacement SMS Services;(ii) Customer shall remain obligated for any charges and costs accrued prior to the termination date and any other amounts owed by Customer as provided in these addendums; (iii) Customer shall cease using the services, the Customer ID and passwords, and the API and all applications developed using the API; and
(iv) Customer shall return to SBT, or destroy with certification thereof to SBT, all Confidential Information of SBT in Customer’s or its Affiliates’ possession or control. Any license(s) granted to Customer hereunder shall automatically terminate upon termination or expiration of the Services, Agreement and/or Services Order. Without granting any additional right of termination, if Customer terminates the Agreement during at any time after the Effective Date in accordance with its rights to terminate granted hereunder, Customer is required to pay SBT the amount of the shared/dedicated short code fee, as stated in Section3 of the Services Order, for the greater of ninety (90) days or for the remainder of the current term. SBT does not provide a refund for unused text credit or other pre-paid items.
1.3. Survival. In addition to Customer’s payment obligations as set forth herein or elsewhere, Sections 1.2 and 1.4 of these General Terms and Conditions shall survive termination or expiration of this Services Order for any reason.
1.4. Customer IDs & Passwords. To enable Customer to access the Services, SBT provides to Customer a confidential ID and password and the ability to change that password. Customer shall not disclose the ID or any such password to any third party and is solely responsible for maintaining the strict confidentiality of the ID and all passwords. Upon termination of the Services, Customer will immediately destroy all copies of its assigned passwords (and certify in writing as such to SBT upon request).
1.5. Code Procurement. SBT (on behalf of the Customer) will procure and lease the Short Codes directly from the applicable Short Code administrative organization. Upon Customer’s request, SBT agrees to procure a dedicated Short Code for the Customer’s SMS Services. SBT (on behalf of the Customer) shall purchase the rights to use any codes and shall automatically renew the term of the code(s)to overuse of the code(s) over the Term of the Services Order. SBT reserves the right to reallocate shared or dedicated Short Codes upon termination, without creating any obligation to mitigate or credit the account of Customer.
1.6. Customer Data. Customer acknowledges that in connection with Customer’s and end-users/consumers’ use of the services, SBT may receive domain names, end-usernames, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by end-users/consumers or in connection with the Services (collectively “User Information”). SBT exercises no control whatsoever over any content or User Information, including the content of messages, information that may be transmitted and/or generated using the Services. SBT’s responsibilities are limited to storing the User Information and transmitting the User Information to and from Customers, end-users, and other third parties identified by Customer or end-users. SBT has no obligation and undertakes no responsibility to review User Information to determine whether any such User Information may violate any applicable law or regulation, or create liability to, or on the part of, Customer or any third party. Customer is solely responsible for the Content of all User Information and transmissions thereof and use of the Services and API. Without prejudice to the foregoing, SBT reserves the right to monitor Customers’ and end-users/consumers’ use of the API and Services for purposes of verifying compliance with the terms and conditions of the AUP provided, however, that SBT disclaims any obligation to monitor, filter, or edit any User information or message content.
1.7. Disclosure of User Information. SBT shall not use or disclose confidential User Information except as necessary or required in any of the following instances: (i) as required by statute, law, regulation, court order or third parties involved in providing the Services (e.g. wireless service providers), (ii) to provide and/or invoice Customer for the Services, (iii) upon notice of a threat to SBT, its facilities, networks or customers and/or (iv) to those professional consultants and attorneys having a need to know in connection with legal or potential legal matters. Customer acknowledges that (i) End-Users who use the SMS Services are also the end user customers of the carriers whose services are used by SBT to transmit messages over the carrier networks; and (ii) such carriers’ assert that information of or about carriers’ end-user customers (who may also be Customer’s End-Users) derived solely by such end-user customers’ use of the carriers’ networks is confidential information of the carriers and the private information of such end-use customers of the carriers.
1.8. THIRD PARTY FACTORS & SPAN OF CONTROL. Customer acknowledges that SBT’s provision of the SMS Services is dependent on the facilities, networks, connectivity, or any acts and/or omissions of third party wireless service providers (“Carriers”), governmental entities and/or any other third parties (collectively, including the carriers, (“Third Party Factors”). Customer acknowledges that the performance of the Services may be affected by Third Party Factors. Third Party Factors are deemed to be outside SBT’s Span of Control. SBT’s “Span of Control” is defined as those areas of functionality and technology used in the provision of the Services that are under the direct control of SBT (excluding Third Party Factors). SBT WILL HAVE NO LIABILITY FOR ANY REDUCTION, INTERRUPTION, TERMINATION OR SUSPENSION OF THE SERVICES RELATED TO ANY ISSUES DEEMED BY SBT TO BE OUTSIDE SBT’S SPAN OF CONTROL. NEITHER SBT, NOR ANY CARRIER: a) WILL BE LIABLE TO CUSTOMER OR ANY USER FOR ANY MESSAGES DELETED OR NOT DELIVERED, REGARDLESS OF THE REASON FOR DELETION OR NONDELIVERY INCLUDING, WITHOUT LIMITATION, MESSAGE PROCESSING OR TRANSMISSION ERRORS; AND b) MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS OR THAT MESSAGES WILL NOT INFRINGE THIRD PARTY RIGHTS. THE SERVICES ARE PROVIDED “AS IS”, “WITH ALL FAULTS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SBT EXPRESSLY DISCLAIMS ALL IMPLIED AND/OR STATUTORY WARRANTIES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY OR ALL SERVICE ISSUES IS SET FORTH IN THE AGREEMENT.
1.9. ACCEPTABLE USE. Customer and all persons and entities accessing the Services provided to Customer,
including Customer’s end-users, employees, agents, representatives, affiliates and third-party contractors must comply with SBT’s latest Acceptable Use Policy(“AUP”). Carriers in their discretions may modify the AUP from time to time. SBT shall give Customer prompt written notice of any changes to the AUP by posting the most current AUP to SBT’s website. Customer shall comply with the AUP and not permit the Services to be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose. Customer is solely responsible for any and all activities that occur on its Services account. Customer agrees to immediately notify SBT of any unauthorized use of the Services or any other breach of security known to Customer and shall cooperate with SBT in investigations and other actions taken for suspected or known violations of the AUP, including any incidents of spam by Customer or any end-user.
1.10. API. During the term of the Agreement, SBT grants Customer a limited, non-exclusive, non-transferable license to use the API solely in connection with the Services to develop a wireless application that connects and sends data to facilitate the Services. Customer’s use of the API is limited solely to Customer’s internal use and not for resale, sublicensing, timesharing, renting, loaning, the operation of a service bureau or similar arrangement or the benefit of any third party. Customer shall not disclose, export or distribute any part of the API to any third party.