Terms and Conditions – AMSP
1. This document contains the standard terms and conditions for any IT and
telecommunication services provided by AnyMessage, respectively its operating
company as per your contract, which will serve as your contractual partner,
hereinafter referred to as AMSP (Any Message Service Provider). The customer
and AMSP will be jointly referred to as “contractual Parties” or “Party” in
case of single references applying to any of them.
2. AMSP reserves the right to modify its terms and conditions at any point
and time with a notice period. Such notice period shall be at least 10 business
days unless there are regulatory or carrier side changes, which require AMSP to
change terms and conditions with a shorter notice period. In case of any
changes to these terms and conditions, the customer has the right to
extraordinarily terminate usage of services provided by AMSP, provided that he
can proof that such changes will adversely affect its business and/or its
customers. If the customer continues to make use of the services provided and
does not object make use of his right to extraordinary termination, he agrees
to the changes.
3. AMSP reserves the right to change, alter and/or modify its services and
associated tariffs at any given time. However, customer should expect a lead
time of at least 30 calendar days for any changes on services. It is the
customers right to terminate usage of any such services that have been changed
or decommissioned prior to the expiration on AMSPs end. If the customer continues
to make use of the services provided and does not object make use of his right
to extraordinary termination, he agrees to the changes.
4. AMSP provides its services exclusively based on these terms and
conditions. Any Employee, Agent or Representative of AMSP is not allowed to
make any contradictory agreements, unless they are done in writing and signed
off by the management of AMSP. This applies as well if there is no explicit
denial from AMSP for any such verbal agreements.
5. AMSP renders its services on a nonexclusive basis.
The following terms shall be used as definitions with respect to this
contract and all of is amendments and addendums, unless specified otherwise:
o “app push” shall mean, a push into a Web browser or app on a phone, which is
either AMSPs own app or a customer’s app, which integrates the AMSP SDK to
enable chat or notification functions.
o “account
information” shall mean any access
information to AMSP s gateways which are provided by AMSP to the customer.
o “contract(s)” shall mean all contracts and other related
agreements (e.g. Service Level Agreements) between the contractual parties.
o “customer” shall mean the private or
legal entity entering into a legal agreement with AMSP, according to §3 of these
terms and conditions.
o “client” shall mean a customer´s
customer, client and/or any other business partner, which has an agreement with
the customer to use the customers messaging services.
o “cloud storage” shall mean AMSP’s storage
area network, which is cloud accessible and stores customer provided data and
files
o “content” shall mean any information
that is contained within a message, file or document.
o “contractual agreement” shall mean and extend to every separate
and independent stipulation between the parties including all contracts (as per
§2.1 a) and without limitation, any recitals and schedules thereto as long as
they are in written form.
o “gateways” shall mean any of AMSP s systems, which are provided to the customer
and/or it’s clients for the usage of any telecommunication services.
o “Know Your
Customer or KYC” shall mean that the
customer may be required to provide proof of identity of its clients to AMSP in
case of reselling services, sourced via AMSP in order to be in compliance with current
GDPR regulations.
o “virtual mobile
numbers” shall mean a number looking like a usual
mobile number, but being hosted by either AMSP one of its partners or a mobile
network provider to which Text and/or voice messages can be send and which can
be received via AMSP cloud platform.
o “virtual numbers” shall mean a number looking like a usual (landline) phone number, but
being hosted by either AMSP one of its partners or a fixline communication
network provider to which calls can be made to and voice messages can be sent
and which can be received or forwarded via AMSP cloud platform.
o “short code or
short number” shall mean a short number
(usually between 3-6 digits) to which SMS can be send and/or calls can be made.
o “Text to speech” shall mean a service that converts language from different nationalities
into human voice.
1. The customer agrees not to start or initiate any services until an
appropriate contract has been signed by the parties and such services will be
conducted by the customer within the limits of these terms and conditions. Services
which are not covered within these terms and conditions, potentially require an
additional agreement.
2. The customer is solely responsible for all use (whether or not
authorized) with any of his AMSP account(s) of the AMSP, the customer is also
solely responsible for all acts and omissions of anyone who has access to or
otherwise uses any Customer accounts data (“End Users”). Customer agrees to
take all reasonable actions to prevent unauthorized access to or abuse of his
accounts and corresponding services and will notify AMSP promptly in case he
becomes aware of any such abuse. AMSP is not liable for any loss or damage
arising from unauthorized use of the customer’s account(s).
3. The customer agrees that he will strictly comply with the rules set out
by any current applicable completion law, third-party rights, as well as these terms
and conditions, as amended from time to time. The customer will not use any
services provided by AMSP in any way or form violating any current applicable law
or competition law. The customer agrees that it will not knowingly send
unsolicited advertising material or any other unsolicited content via AMSPs
platform.
4. Customer agrees to use best efforts to implement terms of use that are at
a minimum consistent with the laws and regulations of the traffic´s destination
country and/or in line with the terms and conditions of this agreement.
5. The customer will send messages only to subscribers who have consented to
receiving the types or messages, the content and frequency send through any gateway
provided by AMSP and to subscribers, who have been informed of their rights to
and the process for cancelling receipt of future messages (OPT-OUT). Should
unsolicited traffic, for whichever reason have been sent via a customer account
or any of the customer´s clients’ accounts through gateways provided by AMSP,
the following actions shall be taken:
(i)
the party detecting that
unsolicited traffic has been sent shall immediately contact the other party
informing that unsolicited traffic has been sent,
(ii)
the parties shall
immediately initiate efforts to work in good faith and exchange information in
order to determine the source of the unsolicited traffic as soon as possible
after the incident, (e.g. via timestamps, content, destination number(s) and
originator(s))
(iii) the customer should immediately make sure that the account from which the
unsolicited traffic is sent, is deactivated OR make sure that such client is
not sent any more towards the AMSP Platform and shall ensure that such client (in
case of customer’s customer) is no longer connected to the AMSP Platform.
6. Upon AMSP 's request, customer will provide AMSP with a proof of
subscribers’ consent and/or the customer’s response time to discontinue the
transmission of any messages to AMSP satisfaction within a reasonable time of
receiving such request. The customer agrees to keep such records (contracts
and/or OPT-IN records) for at least 180 days after submission of any content
towards AMSPs gateway or platform or decommissioning services which use the
AMSP platform.
7. The customer will not attempt to use the AMSP Services to access or allow
access to emergency services: the services are not intended to support or carry
emergency calls or SMS messages to any emergency services. Neither AMSP nor its
representatives will be liable under any legal or equitable theory for any
claim, damage, or loss (and customer will hold AMSP harmless against any and
all such claims) arising from or relating to the inability to use the AMSP
services to contact emergency services.
8. The customer acknowledges that AMSP has no control or influence in any
way over the content submitted via its cloud platform and is providing only the
platform as a transactional system, which controls the delivery via various
communication channels. AMSP recommends that, before any services are consumed
or provisioned by the customer, the customer shall take legal advice with
respect to provision of the services intended at its own expense.
9.
Customer agrees not to attempt,
permit or assist to decompile, reverse engineer, disassemble or derive the
source code of any software provided in connection with the AMSP Services. This
does not apply for any sources provided by AMSP for service integration.
10.
Customers are bound to these
terms and conditions; in case they are making use of any of the services
provided by AMSP (e.g. by signing up for a test account) or by entering into a
contract with AMSP.
1.
To use the AMSP Services,
the customer has to create an account with any of the platforms provided by
AMSP.
2. The service of AMSP is limited to:
- Acceptance of information or messages provided
- Storage, forwarding and potentially processing of data.
- Transmission of the content to a specific gateway provider for transport
to the ultimate destination (phone, app, web, mail, etc.).
AMSPs service is considered completed, once AMSP has passed the content
to a downstream processor, carrier or service provider. There is no warranty
about reaching a specific destination device, network or carrier. Success in
delivery is depending on service profiles used. In case of the provisioning of
specific services that are relying on 3rd parties to be provisioned,
AMSP will work in a collaborative way with the respective 3rd party
or service providers and provision services as soon as possible. Such services
are provided on a best effort basis and AMSP is not liable for any due delay
caused by such 3rd party or service provider during the provisioning
of any services.
3. AMSP systems are designed for the transmission of personal or informative
content, to any end user device. It is the customers responsibility to make
sure that the end users have given consent to receive any such content (so
called OPT-IN communication). Any Messages or Content containing offensive or
any other form of unsolicited or illegal content, will potentially lead to a
blockage of the account and as per AMSP’s sole discretion and/or result in the
termination of the contractual agreement if such content is sent repeatedly. AMSP commits to notifying its
customers, as soon as reasonably possible in the event of such blockage.
4. AMSP warrants that it will deliver its products and services according to
the individual customer agreements and the service descriptions included or
attached to such agreements.
1. Customer agrees to release AMSP from any liabilities, which are based
upon actions of the customer and/or its clients or upon information provided by
customer and/or its clients. This applies specifically, however not only, in
case of abuse of account information, protection of privacy or competition
regulations, violations of copyright and/or illegal or invalid information
provided by the customer.
2. AMSP is responsible for performing the services as defined in the
contracts and by these terms and conditions. In an event of breach, AMSP is
shall be liable for any proven direct damage unless caused by simple
negligence, circumstances out of AMSP ’s reach and/or circumstances relating to
force majeure. In any event AMSP shall be only maximum liable to the aggregate
turnover of the customer in the corresponding month of such event.
3.
Indirect damages. In no
event will either party or its affiliates have any liability arising out of or
related to this agreement for any revenues, goodwill, or indirect, special,
incidental, consequential, cover, lost data, business interruption or punitive
damages, whether an action is in contract or tort and regardless of the theory
of liability, even if a party or its affiliates have been advised of the
possibility of such damages or if a party’s or its affiliates’ remedy otherwise
fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law
The Parties
acknowledge that the existence and the terms of this Agreement and any oral or
written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential
information. Each Party shall maintain confidentiality of all such confidential
information, and without obtaining the written consent of the other Party, it
shall not disclose any relevant confidential information to any third parties,
except for the information that:
a.
is or will be in the public
domain (other than through the receiving Party’s unauthorized disclosure);
b.
at the time of disclosure is
otherwise known to the receiving party other than by previous disclosure under
an obligation of confidentiality;
c.
is under the obligation to
be disclosed pursuant to the applicable laws or regulations, rules of any stock
exchange, or orders of the court or other government authorities; or
d.
is required to be disclosed
by any Party to its shareholders, investors, legal counsels or financial
advisors regarding the transaction contemplated hereunder, provided that such
shareholders, investors, legal counsels or financial advisors shall be bound by
the confidentiality obligations similar to those set forth in this Section.
Disclosure of any confidential information by the staff members or agencies
hired by any Party shall be deemed disclosure of such confidential information
by such Party, which Party shall be held liable for breach of this Agreement.
This Section shall survive the termination of this Agreement for any reason.
2. Either party shall be entitled to seek injunctive or other equitable
relief to remedy or prevent any breach or threatened breach of any
confidentiality provisions by the other party or any of its employees,
directors, officers, agents, consultants, contractors or affiliates. Such
remedy shall not be the exclusive remedy for any breach of the confidentiality
provisions herein, but shall be in addition to all other rights and remedies
available at law or in equity.
3. AMSP ensures to follow EU directive 95/46/EC regarding the storage and
security of personal data, as well as GDPR and DSGVO (German data protection
regulations) and will implement and execute all its updates.
4. Each party will promptly inform the other party if such party becomes
aware of any violation of the terms of this clause.
AMSP provides it services on a pre- and postpaid basis. Whichever
contract and/or payment form is selected, is at the sole discretion of AMSP.
1. For Pre-Paid accounts,
a.
Purchased Gateway credits can
get jointly used for any of the services provided. unless specifically defined otherwise. Payments
have to be made in such way that there are no fees to the receiving party.
b.
Remaining credit will be
refunded upon customer request, unless specifically defined otherwise.
2. For post-paid accounts the following terms apply:
a.
AMSP is invoicing its
customers on a post-paid basis for any of the services rendered under this
agreement, based on default and/or individual pricing arrangements made in the
service agreements.
b.
Undisputed charges on
invoices are due immediately after the customer’s receipt of the invoice
(either by download, e-mail or postal mail). Payments have to be made in such
way that the payment is credited to the account not later than fourteen (14)
days after the receipt of the invoice, unless deviating payment terms have been
agreed upon.
c.
In case that the customer
disputes any charges on an invoice, customer shall pay any undisputed amount
within the regular payment terms and notify AMSP in writing of such disputes no
later than thirty (30) days after the customer’s receipt of such invoice. The
parties shall then try to resolve such disputes via mutual dialogue. In case of
failure of any such dialogue, either party may decide to refer the matter to
court in accordance with § 13. If customer fails to notify AMSP of such
disputes within thirty (30) days after the customer’s receipt of the invoice,
such disputed charges, will be considered undisputed and become due, regardless
if justified.
d.
Undisputed charges which are
due, but not paid shall accrue interest at the rate of 5% (five percentage
points) on top of the current EURIBOR interest rate, as of the end of the day
on which payment was due and until paid in full.
AMSP is entitled to a deposit as per its own discretion (usually double the
amount of the average invoice), in case that the customer repeatedly fails to
fulfil his payment obligations. Alternatively, AMSP may, at its own discretion
choose to close the account. If the customer maintains a security deposit with AMSP
no late payment fee applies.
e.
Payment terms deviating from
§7.2 a and §7.2.c are defined in the separate service agreements between AMSP and
the customer.
3. Any offset is only acceptable in between the parties:
a.
In case of a bilateral service
agreement and a corresponding reference therein.
b.
upon mutual agreement for
receivables which are legally validated or acknowledged.
1.
Contracts are required prior
to usage of AMSP platform and/or services. Contracts can be entered into by
either online sign on on any of the AMSP platforms or by signing and executing
individual agreements. In case of any special or individual or minimum
duration, such durations are agreed upon in the separate service agreements
between AMSP and the customer.
2.
Either party may terminate
these terms and conditions and close the customer’s AMSP account(s) for any
reason upon thirty (30) days written notice to the other party unless otherwise
agreed in the separate service agreement. Notwithstanding the preceding
sentence: In case of a separate Order Form(s) being in effect, these terms and
conditions, will not terminate until such Order Form(s) have expired or been
terminated. A termination of the agreement and/or separate services can be done
6 months prior to the end of the contract and/or the services.
3.
If customers fail to fulfil
his payment obligations or violates any terms of the Agreement with AMSP, AMSP reserves
the right to immediately block all services offered. AMSP also reserves the
right to terminate its Agreement with the customer if such payment obligation
or violation is not cured within 30 (thirty) days of AMSP ´s notice to the
customer.
1. If one or more paragraphs of this terms and
conditions is ineligible or becomes ineligible the other parts of this terms
and conditions remain intact. Instead of the ineligible part an eligible part
will be placed which comes closest to the original content and intention with
respect to regulatory and economic intentions.
1.
Neither party shall be
liable in damages for any delay or default in performing hereunder if such
delay or default is caused by conditions beyond its control including, but not
limited to Acts of God, governmental restrictions, strikes or labour
disturbances, wars, sabotage, insurrections, natural disasters and/or any other
cause beyond the reasonable control of the party whose performance is affected.
2.
Either party may immediately
terminate this Agreement by providing notice to the other party if any Force
Majeure event continues for more than ninety (90) days.
For EU Customers:
1.
Place of performance for all
legal disputes regarding this contractual agreement shall be in the courts of
Lubeck, Germany and the governing law shall be the law of Germany.
For Non-EU customers:
2.
Place of performance for all
legal disputes regarding this contractual agreement shall be in the courts of Kiel,
Germany and the governing law shall be the law of Germany.
Terms and conditions of ANYMESSAGE GmbH as of November
1st. 2020.