General Terms and Conditions
Between SMSpubli Mobile Marketing, S.L., with its registered offices in C/ Adelfilla 3, 29014, Málaga, España, VAT Nr. ESB92977461, e-mail email@example.com(hereinafter, for the sake of brevity also referred to as “SMSpubli”) and the client and subscriber to these general terms and conditions of contract (hereinafter, for the sake of brevity also referred to as “the Client”). SMSpubli and the Client are subsequently also known as the “the Parties” and/or individually as “the Party”. Whereas – SMSpubli is a company operating in the sector providing services for communication via the web; – the Client intends to sign up to an agreement with SMSpubli, for the purposes or obtaining one or more services provided by it, this having been stated, the Parties as indicated in the epigraph hereby agree and stipulate as follows.
Article 1 – Validity of the Preambles and the Annexes
- The Preambles, Annexes and financial terms and conditions published on www.smspubli.com constitute an integral and substantial part of these General Terms and Conditions of Contract (hereinafter, for the sake of brevity also referred to as “the Contract”).
Article 2 – Closure of the contract
- The present Contract between SMSpubli and the Client is understood to be perfected with the completion of the registration process and the acceptance of the same by the Client on the website www.smspubli.com.
- The Client’s subscription to one or more Orders, having as their subject one of the services supplied by SMSpubli, entails the complete and total acceptance of this Contract.
Article 3 – Subject
- This contract governs the provision of services supplied by SMSpubli, the technical characteristics of which are described and detailed in the respective Order/s.
- By way of a non-limiting example, SMSpubli offers the Services known as “SMS Online” (each of which for the sake of brevity are also known as “the Service”).
- The Service known as “SMS Online” has as its subject the sending of SMS messages using SMSpubli’s system (gateway SMS) and of the reception of the same on shared or dedicated numbers allocated to the Client.
- The Service referred to as “SMS Online” pertains to the sending of SMS marketing campaigns using SMSpubli’s online platform.
Article 4 – Duration
- The duration of the Contract is open-ended, unless agreed otherwise between the Parties in the Order for a given Service.
- The duration of each Order is expressly established by the Parties in the same Order.
Article 5 – Supply of the SMS Online Service
- Subject to the specific subscription to one or more orders pertaining to the SMS Online service, SMSpubli undertakes to provide the client with the with bundles of SMS messages, which the Client undertakes to purchase in accordance with the terms and conditions agreed upon in the same Orders.
- The SMS messages sent by the Client will be gradually deducted from the account total calculated in Euros purchased by the Client until these are exhausted.
- The Client can sell all or part of the SMS messages purchased from SMSpubli to a third party, totally independently and with the costs to be borne by it.
Article 6 –Supply of the SMS Online Service
- Subject to the specific subscription to one or more orders related to the SMS Online service, SMSpubli undertakes to provide the Client with the service for preparing and sending Bulk SMS campaigns, organising the contacts list and the consulting of statistics. The Client undertakes to purchase the same under the terms and conditions agreed upon in the Order/s.
Article 7 – Registration process and database
- Also in order to allow SMSpubli to provide its Service/s fully and correctly, the Client undertakes to provide accurate and truthful details about itself at the moment of registration.
- The Client also undertakes to inform SMSpubli promptly by e-mail of any changes in its own personal details communicated previously.
- With respect to the incomplete, incorrect or untruthful communication of details by the Client, as indicated in the previous paragraphs, SMSpubli has the right not to activate or to suspend and/or interrupt the Service/s, until such time the same as the Client does not arrange to rectify such failings.
- Once the on-line registration service is complete and on the occasion of the first request to activate a service provided by SMSpubli, the Client will be assigned a private login code and password that will be communicated by e-mail and that will be used for the purposes of subsequently accessing the internet site.
- The Parties expressly acknowledge the entry of a login code and a password as the only and appropriate method for identifying the Client. The same Parties also agree and concur on how all the requests, acceptances of Order and other operations and activities undertaken following access to the Internet site’s reserved area are understood as have been carried out by the Client, that will be subsequently be bound by it.
- The same Client is solely and exclusively responsible for keeping its own access details, undertaking to keep these secret, to safeguard them with the utmost care and diligence and not to divulge them, even temporarily, to third parties.
- In every case, the Client accepts and acknowledges that computerized and/or online registrations undertaken by SMSpubli and/or its own suppliers, can be opposed and inferred before any competent authority for every evidentiary purpose pursuant to and in accordance with this contract and that, in particular, on these the Parties can base suitable civil evidence concerning the existence of the relationships and/or the subject of the contract that is being contested.
- The account registered on the www.smspubli.com website, the login codes and passwords and this contract are valid even in the case where SMSpubli provides its own SMS online services on platforms that are different to www.smspubli.com, as long as these are within the availability of SMSpubli, and in any case through their own gateways for sending SMS messages.
- In compliance with the existing provisions of law and in particular to those in the area of privacy, SMSpubli undertakes to keep a historical record of the SMS messages sent in its own database, with an indication of the content, the addressee and, where possible, the confirmation of receipt. Said database can be consulted by the Client for three months after the aforementioned information has been logged, accessing the site by means of the login code and password provided by SMSpubli.
- In compliance with the existing provisions of law and in particular to those in the area of privacy, SMSpubli will keep the database it its own archives, even beyond the time required for the sending of the SMS messages, for the purposes of internal organisation and statistical analysis, as well as to satisfy any possible requests to hand over and/or view the data forwarded by authorized subjects such as, by way of example, the judiciary or the police.
Article 8 –Sale to the end Client
- In the case where the Client sells (hereinafter, for the sake of brevity, also referred to, as “the Reseller”), the services or products purchased from SMSpubli to a third party (hereinafter, for the sake of brevity, also referred to as “the end Client), for payment or free of charge, the same Reseller will have complied strictly with the following.
- In the event of what is referred to in the previous paragraph, the Reseller undertakes to sign written agreements with the end Client, having as their subject the SMSpubli products and/or services sold to the same end Client and without this giving rise to any additional obligations or costs for SMSpubli.
- The Reseller expressly undertakes to make the end Client comply with all the obligations, prohibitions and commitments with SMSpubli in this contract and in the single Order/s, as well as with all the obligations, prohibitions and commitments arising out of regulatory and legal provisions, with particular but not exclusive regard to the matter of privacy and anti-spamming.
- The Reseller undertakes to communicate the details of end Clients to SMSpubli and keep these up to date, taking on board all the associated legal and contractual obligations and expressly indemnifying SMSpubli against any prejudice that may arise in relation to these.
- If SMSpubli communicates, important information concerning the services or the products supplied or sold, using the methods deemed most appropriate by it, the Reseller undertakes to make the end Client aware of this information, remaining solely and exclusively responsible for the failure to comply with this obligation.
Article 9 – Changes to and suspension of the Service.
- SMSpubli retains the right to modify this Contract and/or the technical characteristics of the Service, informing the Client by e-mail or through publication on www.smspubli.com, and bringing these changes into effect 30 (thirty) days after the despatch of the e-mail or the publication of the same, taking care to maintain the same qualitative level of the service provided.
- Where the changes made by SMSpubli impact significantly and in an objective manner on the quality and quantity of the Service/s, the Client will have the right to withdraw from the Contract and/or the Order/s, informing SMSpubli of this by means of a recorded delivery letter with advice of delivery within 30 (thirty) days of the changes having been communicated. The statement of withdrawal can also be anticipated by Fax or electronic mail, on the condition that is confirmed within the following 48 hours with a recorded delivery letter with advice of delivery.
- A client who has exercised the right to withdraw, will be reimbursed in accordance with the same procedure stated in Article 11.3 of this Contract.
- Failure to exercise the right to withdraw will result in the total and complete acceptance of the changes made by SMSpubli.
- In the case where is a need to carry out maintenance work on the SMSpubli systems that require the Service to be suspended and/or reduced, SMSpubli will arrange to provide advance notification by e-mail or publication on www.smspubli.com, providing at least 24 (twenty-four) hours in advance.
- Where the Service is suspended and/or reduced either totally or in part, in case of events depending on a fortuitous event or force majeure, such as by way of a non-limiting example the failure of the network, the supply equipment, the interruption of the electrical supply or the services provided by the telephone operators, as well as in cases of changes and/or unscheduled maintenance that is technically essential, SMSpubli is not required to comply with the obligation to provide advance notification as in the preceding paragraph.
- In the case of paragraph 9.6, SMSpubli will do everything within its power to restore the suspended and/or reduced service as quickly as possible.
Article 10 – Parties’ obligations
- The Client undertakes to use the SMSpubli Service/s in compliance with legal and regulatory provisions, with particular but not exclusive regard to the regulations governing the matter of spamming and privacy.
- The Client is solely responsible for the content of SMS messages sent to third parties, on which SMSpubli will not carry out any checks or monitoring, either before or after they have been sent.
- In order to avail itself of the Service/s provided by SMSpubli, the Client undertakes to use equipment and accessories that are in perfect working order and for which it is solely responsible as per Article 14.4 below.
- SMSpubli undertakes to use the best available technology of which it is aware and the best resources at its disposal to provide the Services that are the subject of individual orders.
Article 11 – Right of withdrawal
- The Client natural person that has agreed to this Contract for purposes that are unrelated to their own professional business (hereinafter, for the sake of brevity, referred to as “the Consumer”) will have the right to withdraw freely from these General Terms and Conditions and/or from the Order within 10 (ten) working days of having agreed to them.
- The Consumer who intends to withdraw from the Contract must do so by recorded delivery letter with advice of delivery. The statement of withdrawal can also be anticipated by Fax or electronic mail, on the condition that is confirmed within the following 48 hours with a recorded delivery letter with advice of delivery.
- Following the receipt of the statement of withdrawal, SMSpubli undertakes to credit the Consumer the amounts outstanding from those already paid by the Consumer and which it has not yet used for one or more of SMSpubli Services, within 30 (thirty) days of the statement of withdrawal.
- The Parties agree that the statement of withdrawal must expressly indicate if the cancellation itself refers to this contract and/or to the Order/s agreed to.
- For everything else that is not otherwise governed, all the provisions of this Contract and the Orders generically referred to the Client will be applied to the Consumer.
Article 12 – Consideration
- The Client is obliged to pay the consideration for the Service/s provided by SMSpubli (hereinafter, for the sake of brevity also referred to as “the Consideration”), as indicated in the financial terms shown on the www.smspubli.com site/s or expressly agreed between the Parties in the Order, both of which are to be considered integral and essential parts of this Contract in accordance with Article 1 of the same.
- The Parties expressly acknowledge how the Consideration referred to in the preceding paragraph is all inclusive, so the Client will not be asked for any additional costs or charges, such as, by way of example, activation costs, other than if expressly agreed upon in writing by both parties.
- Without prejudice to what is envisaged in Article 9, SMSpubli retains the right to modify the amount of the Consideration envisaged for the “SMS Online” service, in case of a change in of the unit cost for the SMS messages made by the telephone operators supplying the service, advising the Client by e-mail, that this will take effect 30 (thirty) days after its despatch.
- In the case where for one of the SMSpubli Services, the parties have agreed on the application of different rates from the standard indicated on www.smspubli.com, SMSpubli has the right to change the amount of the Consideration, advising the client by e-mail that this will take effect 30 (thirty) days after its despatch.
- In the case of the change to the Consideration as per Paragraphs 3 and 4 of this article, the Client will have the right to withdraw from the order and this contract, within 10 (ten) days) of having received SMSpubli’s e-mail, communicating this by means of a recorded delivery letter with advice of delivery. The statement of withdrawal can also be anticipated by Fax or electronic mail, on the condition that is confirmed by recorded delivery letter with advice of delivery within the following 48 hours.
- In the case of withdrawal as per the previous paragraphs, the same procedure for reimbursement stated in Article 11.3 of this Contract will apply.
Article 13 – Methods of payment
- The client can choose to pay the Consideration either by credit card or bank transfer, unless otherwise specified in the Order/s.
- The crediting of the SMS messages will take place within 8 working hours of the Client having paid the Consideration.
- On-line payment by credit card for bundles of SMS messages guarantees immediate activation of the Service. In particular conditions (period of reconfiguration and updating of security systems and checking) the crediting of SMS messages may not take place immediately and will only be confirmed once a direct check has been carried out that the banking transaction has gone through.
- The credit card number is forwarded by the browser directly to the banking circuit’s secure server by means of an encrypted data channel using the 128bit SSL protocol. This will check credit availability and communicates the outcome to the SMSpubli system.
- Payment by banker’s transfer can also take place on-line and must include the reference number.
- Following the payment, SMSpubli will make arrangements for an appropriate invoice or other fiscal document to be made available in electronic form in the specific section of the reserved area (or to be sent to the address indicated in the registration).
- SMSpubli also retains the possibility of sending the invoice in electronic form to the e-mail address provided at the moment of purchase.
- It will therefore be the Client’s sole responsibility to inform SMSpubli of any changes to the e-mail address provided as per Article 17 of this Contract.
- The Parties have the option of drawing up a written agreement so that the payment of the Consideration can take place once the service has been provided, after the issuing of the final balance invoicing for the SMS message traffic produced.
- In case of lateness or imperfections in making the payments by the Client, SMSpubli has the right to suspend the provision of its services, pursuant to and in accordance with Article 1460 of the Civil Code (Spain).
Article 14 – Liabilities
- The client expressly indemnifies and holds SMSpubli harmless from any and every liability associated with the content of the SMS messages sent from and/or on behalf of the same Client.
- The Client, also, indemnifies and holds SMSpubli harmless from any and every liability associated with the use, the publication of the shared or dedicated number assigned to the Client for the SMS message receiving service.
- The Client expressly indemnifies and holds SMSpubli harmless from any claim put forward by third party subjects and/or the same Client associated with the procedure of the retrieval, archiving, retaining, accessing, distributing and destroying of numbers used, by way of a non-limiting example when it comes to the compliance of said activities with existing legislative and regulatory provisions, including those in the areas of privacy.
- With SMSpubli’s liability in cases of wilful misconduct or gross negligence being understood, the Client indemnifies and holds SMSpubli harmless from any responsibility associated with the failed or late dispatch and/or failed or late receipt of SMS, and, by way of non-limiting examples, in the following cases:
- events of force majeure
- events depending de facto on third parties such as the interruption or malfunction of the telecommunication services, electricity supply, signal coverage etc.;
- events depending on the improper and incorrect use of the equipment used by the Client, necessary for the complete and correct use of the services provided by SMSpubli, as envisaged under Article 10.3 of this contract.
- events depending de facto on the same Client or one of his collaborators or associates;
- events depending on the suspension or interruptions in the systems in use by SMSpubli, including where this occurs on the orders of the competent authorities.
- The Reseller indemnifies and holds SMSpubli harmless from every and any liability connected with the sale of the Service/s sold to the end Client, and in general from any claims made by third parties and/or the same end Client connect with the delivery of the contract subscribed to between the Reseller and the end Client.
- It remains expressly understood between the Parties that all the supposed indemnifications and holding harmless of liabilities in favour of SMSpubli envisaged above are understood to refer to every and any possible type of damage, direct or indirect, including that of loss of earnings.
Article 15 – Service characteristics
- The Parties expressly agree that where the telephone operators restrict or suspend the possibility of customizing the sender of SMS messages, SMSpubli will no longer be required to guarantee said service.
- SMSpubli does not guarantee delivery for any type of SMS message unless the SIM is activated for foreign roaming.
- Where the Client provides inaccurate or incomplete details that make it impossible or difficult for SMSpubli to deliver its services, SMSpubli itself reserves the right not to activate and/or suspend the Service/s until such time as the Client does not arrange to remedy the situation.
- Where, for reasons attributable to the telephone operators, one or more telephone numbers used for the SMS Online Service are deactivated and/or suspended, SMSpubli undertakes to request new numbers from the same telephone operators, in order to maintain the same quantitative and qualitative level of service.
- The Client undertakes here and now not to ask for any reduction in price and/or any compensation for the damage caused by a change in numbering, as governed by the preceding paragraph.
Article 16 – Express termination
- SMSpubli can terminate the present General Terms and Condition of Contract and each Order pursuant to and in accordance with Article 1456 of the Civil Code, if the Client has failed to comply with what is stated in Articles 10, 12 and 13 of this Contract, excepting and without prejudicing the rights of SMSpubli to the payments of the considerations due in its favour at the date of termination and to the payment of damages suffered.
Article 17 – Communications
- Unless otherwise envisaged, the Parties agree and concur on the use of electronic mail for undertaking the communications required under the terms of this Contract and/or by the individual Orders.
- The Client undertakes to inform SMSpubli promptly of any changes to its e-mail address by means of recorded delivery letter with advice of delivery or e-mail, under pain of ineffectiveness.
- No responsibility can be attributed to SMSpubli in cases of inefficiencies or delays in the Service/s arising from a failure on the part of the Client to communicate any changes, as governed in the previous paragraph.
Article 18 – Processing of personal data and Privacy
- Each Party undertakes to process each other’s personal data in compliance with the provisions in matters of privacy, in accordance with Legislative Decree No. 196/2003 and subsequent modifications and supplements.
- The Client states it has seen and accepted the information note on privacy published on www.smspubli.com.
- Except for the case of the publicity obligations that are prescribed by law or by the regulation of any competent authority, SMSpubli undertakes not to supply any third parties with the details and documents that have come into its possession as a result of carrying out the activities in this contract.
- As envisaged by Article 14, all the activities for the retrieval, archiving, retaining, accessing, distributing and destroying of numbers used are down to the Client, with the resultant sole responsibility in this matter.
Article 19 – Applicable law and competent court of jurisdiction
- This Contract is governed by Spanish law.
- Any dispute relating to or arising out of this contract or its execution, shall be subject to the exclusive jurisdiction of the Court of Málaga.
- In the case of a contract drawn up by a Consumer, it shall be subject to the jurisdiction of the Court in the place where the client is domiciled or resident.
Pursuant to and in accordance with Articles 1341 and 1342 of the Civil Code, the Parties declare that they have seen and expressly approved the following articles: 1341 and 1342 of the Civil Code, the Parties declare that they have seen vision and expressly approved the following articles:
Article 8 – Sale to the end Client
Article 9 – Changes to and suspension of the Service
Article 11 – Right of withdrawal
Article 14 – Liabilities
Article 16 – Express termination
Article 19 – Applicable law and competent court of jurisdiction
SMSpubli Mobile Marketing, S.L.
Registered Offices: C/ Adelfilla 3, 29014, Málaga, España VAT Nr. ESB92977461
Tel. +34 911 100 120
Fax: +34 911 309 939 www.smspubli.com firstname.lastname@example.org