EULA - End User License Agreement
Terms & Conditions:
Kindly go through the terms and conditions for use of the SMScountry Service ("SMScountry Service" or "the Service") by the user ("user" or "client"). Any user availing this service shall be bound by these Terms and conditions.
PLEASE NOTE THAT THE User AGREES TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, AND CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT THE MOMENT HE/ SHE PLACES SMScountry's PRODUCTS ON A WEBSITE AND/ OR ACCESSES ANY PART OF THE SMSCOUNTRY SERVICE.
THE User AGREES THAT ALL TERMS AND CONDITIONS HEREWITH PUBLISHED SHALL BE BINDING. IN CASE OF ANY CONTRADICTION BETWEEN PRODUCT-SPECIFIC TERMS AND CONDITIONS, AND GENERAL TERMS AND CONDITIONS, THE PRODUCT-SPECIFIC TERMS AND CONDITIONS SHALL PREVAIL.
1. THE SERVICE
The Service shall consist of an browser interface, SMS gateway access, data encryption, data transmission, data access, data storage and, wherever applicable, synchronization software.
The User shall be responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Service, (displayed during the registration process).
All fees are payable upfront, prior to credits being activated.SMScountry makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service.
SMScountry reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time without notice and with immediate effect. All fees paid to SMScountry when such termination occurs are addressed in the sections below.
2. DELIVERY OF MESSAGES
Messages shall be deemed to have been delivered when SMScountry has delivered/ sent the messages to the immediate destination that SMScountry's software is programmed to do, including SMTP servers, Mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message. SMScountry does not guarantee delivery on behalf of Mobile telephone networks of mail servers.
SMScountry lays no claims to its network coverage. Although SMScountry focuses on providing extensive coverage aggregation services, mobile networks may choose from time to time to not be part of SMScountry or its service providers' networks. This may result in messages not being delivered.
3. LICENCE TO USE PROPRIETARY SOFTWARE
Subject to the terms and conditions of this Service Agreement and Laws of the Union of India, SMScountry grants the User an individual, personal, non-sub licensable, non-exclusive and non-transferable license ("the License") to use its proprietary software and/or application service, in object code form only, and only in accordance with the applicable end user documentation, if any, and only in conjunction with the SMScountry Service Agreement. The User will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/ application; or copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to SMScountry products and/or services. As between the parties, the User acknowledges that SMScountry, and its licensors retain ownership of all propriety applications, software, intellectual property "IP" (Intellectual Property) and any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate and the User shall destroy and cease to use all software and applications. THE SOFTWARE IS PROVIDED AND APPLICATIONS ARE OFFERED, "AS IS" AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THIS SERVICE AGREEMENT AND SUBJECT TO TESTING BY THE CLIENT OR User PRIOR TO ENTERING INTO THIS AGREEMENT.
4. USER ACCOUNT
To open an account for usage of the Service, the User must complete the registration process by providing us with current, complete and accurate information as prompted by the Membership/ registration Form. Inaccurate details shall result in suspension. The User will also choose a password and an account name will be assigned. The User is entirely responsible for maintaining confidentiality with regard to its password and account information. Furthermore, the User is entirely responsible for any and all activities that occur under its account. SMScountry will not be held liable to any third party claims and or actions taken with respect to services offered.
The User agrees to notify SMScountry immediately of any unauthorized use of its account or any other breach of security.
5. MEMBER PRIVACY
The User agrees that SMScountry may access its account, including its contents, as stated above or to respond to service or technical issues.
The User hereby grants SMScountry the right to send the user communication via e-mail of any updates, upgrades, notices, or other information that SMScountry deems important for the user to know, relating to the service.
6. LIMITATION OF LIABILITY
SMScountry assumes no responsibility for the deletion or failure to store information. SMScountry has set no fixed upper limit on the number of messages the User may send through the Service apart from how many units are left in the User's account; however, SMScountry reserves the right, at its sole discretion, to determine whether or not the User's conduct is consistent with the letter and spirit of the Service Agreement and may terminate the Service if the User's conduct is found to be inconsistent with the Agreement. Please refer to see point 18 for more information on procedure at termination of the service. SMScountry may, in the future, with prior notification, limit the amount of storage space available to each Member.
The sender ID that may be sent as part of mobile text messages is not a guaranteed feature and may not be sent without any notification.Although SMScountry prides itself on speedy delivery of messages, messages may be delivered late due to queuing or network traffic. This will still result in the message being seen as "delivered"
7. MEMBER OBLIGATIONS AND DUTIES
Any unauthorised commercial use of the Service, is expressly prohibited. The User agrees to abide by all applicable local, national and international laws and regulations and is solely responsible for all acts or omissions that occur under its account or password, including the content of any transmissions through the Service. By way of example, and not as a limitation, the User agrees not to:
A. Use the Service in connection with chain letters, junk SMS messages, spamming or any unsolicited messages (commercial or otherwise);
B. Harvest or otherwise collect information about others, including email addresses, without their consent;
C. Transmit through the Service, associate with the Service or publishing with the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
D. Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
E. Libel, defame or slander any person, or infringe upon any person's privacy rights;
F. Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
G. Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
H. Attempt to gain unauthorised access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
I. Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or
J. Engage in any other activity that SMScountry believes could subject it to criminal liability or civil penalty or judgment.
8. FEES AND PAYMENT
A. Fees. In consideration for the use of SMScountry's services, the User shall pay to SMScountry a transaction or subscription fee (as appropriate) for messages delivered or partially delivered using any available delivery method, at the applicable rate then in effect. SMScountry may from time to time offer limited time "Free Trial" or similar promotions during which no transaction fees or reduced transaction fees shall apply. Such promotions are intended for Users to test the capabilities of the Service and/or for casual, personal use only. During such promotions, all provisions of this Agreement shall remain in full force and effect.
B. All fees are payable upfront. Failure to purchase credits upfront will result in suspension of the services. Upfront payment refers to payment that is made within a reasonable time so as to allow SMScountry to add the SMS credits to the client's account.
C. Payment. Transaction fees are due and payable at the time of or before SMScountry delivers a message to the User's recipients via every method of delivery based upon the billing plan selected by SMScountry. Payment shall be deemed to have been made, as soon as the fee is available in SMScountry's bank account.
D. Credit Card Payment. If the User has elected to pay for the Service by credit card, and SMScountry does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by SMScountry. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment when such payment is made. SMScountry reserves the right to come to other payment arrangements on a case-by-case basis. (Agreements with the credit card issuer governs use of the User's credit card, and the User must refer to that agreement to ascertain its rights and liabilities as a cardholder.) The final purchase amount is the amount reflected on the Credit Card holder's statement.
E. Termination or Cancellation by the User. The User is free to terminate or cancel this Agreement at any time, and for any reason; provided, however, for such termination or cancellation to be effective the User must carry out such termination in accordance with the policies and procedures established by SMScountry, which will be posted in the Billing Information section or similar location within the SMScountry web site.
F. Cost Increase: Should there be a cost increase after the client has purchased message units from SMScountry, SMScountry will give the client 14 days' notice of such an increase which will be applicable to such credits that are still in the client's message unit account. Within this notification period the client may decide to continue with the service and the said increase, or to suspend the service upon which SMScountry will refund the client to the value of any message unit credits that may be left over in the client's account. The client acknowledges that SMScountry is dependant on various telecommunications networks and institutions for the delivery of its messages and that SMScountry may adjust its prices and offering, should the prices be adjusted due to reasons, which are not in SMScountry's control. SMScountry undertakes to notify the client of such adjustments in writing, prior to implementing such adjustments. Should there be a cost increase AFTER the client has purchased message units from SMScountry, SMScountry will give the client 14 days' notice of such an increase which will be applicable to such credits that are still in the client's message unit account. Within this notification period the client may decide to continue with the service and the said increase, or to suspend the service upon which SMScountry will refund the client to the value of any message unit credits that may be left over in the client's account. Should the client's account not have any credits left, the said account will automatically expire. The account will be re-activated upon payment for new message units. Any message units purchased must be used up within 120 days from the date on which it had been purchased. SMScountry may extend this period on a case-by-case basis at its sole discretion.
G. The client can request a refund of monies paid to SMScountry within 7 days of making any purchase from SMScountry, provided that the amount requested for refund is the same amount as message units are left in the client's account, i.e. all messages sent will be subtracted from the Client's account. Further to that the client will receive back the amount, which fits in with the corresponding volume-option - i.e. on the cost-scale equivalent to the amount of message units sent. There is a 10% charge on all refunds.
H. Credit-based billing principles. SMScountry is able to charge variable amounts of credits per message sent through its system. These variable amounts are published on SMScountry's coverage pages from time to time, and SMScountry charges the published rate when a message is sent through the system. The user may however select the bands or profiles, which will apply to specific products, thereby defining the maximum charge per message. The user understands that the number of credits to a specific destination network may change due to various factors, and that SMScountry may adjust these rates whenever it deems it necessary to do so. Should the user not have selected a specific band or profile that supports delivery to a specific destination, the user understands and accepts that messages sent may not be delivered to such destinations. Conversely, should the user have chosen specific bands which support a higher credit rate per message, and is not aware that a specific route at the time of sending the message to SMScountry will be charged at the said higher rate, the user accepts that he/she will be charged at whichever rate was at that stage applicable to the desired destination network or MSISDN number.
9. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION
A. Modification of Terms. SMScountry frequently updates, modifies, and otherwise continually seeks to improve the SMScountry services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, SMScountry shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the SMScountry service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. Any use by the User of the Service after any such change has been posted shall constitute the acceptance of any such changes. If the User does not agree with any such changes, the Service may be canceled in accordance with the procedures for cancellation set forth in this Agreement. The User acknowledges its responsibility to review this Agreement from time to time and to be aware of any such changes.
B. Termination, Cancellation and/or Suspension by SMScountry; Disclosure of Information. This Agreement and the license granted here under may be terminated, canceled and/or suspended by SMScountry at any time if, in SMScountry's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by SMScountry shall be effective immediately upon notification by SMScountry to the User in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, SMScountry may elect to suspend, terminate and/or cancel this Agreement and/or recover any and all damages from the User arising from or relating to the event(s) giving rise to the suspension, termination or cancellation. SMScountry reserves the right to suspend the client's service at any stage for any reason it may deem necessary to continue to provide any of its services in a way that may be hindered by the Client's status as being a SMScountry Client, financial status of the client or the content of the messages originating from the client
C. In the event that SMScountry receives complaints from recipients or third parties with respect to the use of the Service, SMScountry additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its clients and application Users.
D. Termination or Cancellation by the User. The User free to terminate or cancel this Agreement at any time, in accordance with Section 7(E).
E. Obligations Upon Termination and/or Cancellation. Upon any termination, cancellation and/or suspension of this Service Agreement, the User is responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. Payment and other obligations under this Service Agreement are not suspended, stayed, or otherwise affected by a suspension of access to / or use of SMScountry (in whole or in part) where said suspension arises from the User's failure to comply with, or violation of, the terms of this Service Agreement or of any law or legal obligation. Upon termination and/or cancellation, for any reason, the User agrees to immediately cease using SMScountry and remove all SMScountry software and applications on any computer, database, server (local or remote) in your possession or under its control. SMScountry shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below.
F. Financial obligations of SMScountry upon Termination and/or Cancellation. Should the termination of services result in a situation where the client still has credits (or messages that are pre-paid) at any stage, the client shall receive back the monetary value of such credits in full, save any expenses that may be incurred by SMScountry to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement.
10. WARRANTIES OR LIABILITIES
A. GENERALLY. THE User EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT ITS OWN RISK AND THAT SMSCOUNTRY IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. SMSCOUNTRY WILL USE COMMERICIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SMSCOUNTRY AVAILABLE TO THE User THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE User WILL BE ABLE TO ACCESS SMSCOUNTRY AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
B. ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 10(A), SMScountry and its affiliates, agents, content providers, service providers, and licensors: (i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABLIITY OR FITNESS FOR PARTICULAR PURPOSE OF SMSCOUNTRY GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF SMSCOUNTRY GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; (ii) SHALL IN NO EVENT BE LIABLE TO THE User OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICE GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (THE User AGREES TO INDEMNIFY SMSCOUNTRY PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE); WITHOUT IN ANY WAY LIMITING THE FOREGOING, SMSCOUNTRY SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TIMES THE LOWEST MONTHLY TRANSACTION FEE APPLICABLE TO SUCH ACCOUNT AND /OR CLAIM IN EFFECT FOR THE MONTHLY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY THE User AND/OR THE User ALLEGING LIABILITY.
C. HIGH RISK ACTIVITIES. THE SMSCOUNTRY SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF SMSCOUNTRY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, SMSCOUNTRY AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES INCLUDING EMERGENCY NOTIFICATION SERVICES. SMSCOUNTRY'S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11. THIRD PARTY BENEFICIARIES
Notwithstanding anything to the contrary contained herein, the provisions for " Warranties and Liabilities" set forth in Section 10 herein are for the benefit of SMScountry and its affiliates, agents, content providers and service providers and each shall have the right to assert and enforce such provisions directly on its own behalf.
The User agrees to indemnify, hold harmless, and defend SMScountry and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates the terms of this Service Agreement or otherwise violates any law, rule, or regulation and (ii) any claims made by third parties arising from your use of the Service, including without limitation any and regulation all third party claims arising from or related to any failure, delay or interruption to the Service. The User agrees to cooperate as fully as reasonably required in the defence of any claim. SMScountry reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable.
In this Agreement, any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa and any reference to a gender includes the other genders.
This Agreement shall be governed by and construed and interpreted in accordance with the law of the Union of India.
No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and the User does not have any authority of any kind to bind SMScountry in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
These terms and conditions constitute the whole agreement between SMScountry and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
14. SMSCOUNTRY API SPECIFIC TERMS & CONDITIONS
SMScountry offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to SMScountry's Gateway. These terms do not exclude the aforegoing terms in this agreement.
14.1 SMScountry reserves the right to approve clients and API connections at its sole discretion.
14.2 SMScountry encourages the use and publicity of anti-spam policies.
14.3 The client will be supplied with a login and password and will need to specify what IP Address range the messages will be posted from. This will ensure that the connection is at all times secure from SMScountry's side. Security measures over and above this will be the client's responsibility. Ensuring that the IP address security is implemented will be the responsibility of the User, who needs to e-mail the IP address to SMScountry and request that it be implemented and tested.
14.4 Although SMScountry will provide API connection specifications and will attempt to keep the specifications accurate and up to date, these specifications may be incomplete and may change from time to time without SMScountry informing the client that it has changed. It is the client's sole responsibility to test the specifications thoroughly on a regular basis, as SMScountry will not accept responsibility for specifications that may be incorrect or incomplete