1. USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS
These Terms and Conditions (the “Terms and Conditions”) shall commence on the date of acceptance by the User and will continue until terminated in accordance with the Terms and Conditions herein. Until termination, Fortytwo Marketing agree to provide the Service to the User in accordance with these provisions.
These Terms and Conditions shall set out the entire agreement between Fortytwo Marketing and the User.
Throughout the Terms and Conditions stipulated herein, Fortytwo Marketing and the User shall be referred to individually as the “Party” and collectively as the “Parties”.
2. PROVISION OF THE SERVICE
Subject to the provisions of these Terms and Conditions, Fortytwo Marketing shall be responsible to deliver messages to mobile subscribers or network operators and shall be responsible to ensure that the mobile number and content of the SMS to be delivered adheres to the provisions of these Terms and Conditions (the “Service”).
3. APPLICATION OF THE TERMS AND CONDITIONS
When using the Messito Website (the “Website”), the User accepts to adhere to these Terms and Conditions. Registration and use of the Website and/or any Services offered by Fortytwo Marketing shall automatically bind the User to these Terms and Conditions. Once the User activates the Services, Fortytwo Marketing shall consider such action as an acceptance by the User to all of the Terms and Conditions. Should the User not agree to all the Terms and Conditions set herein, or cannot comply with these Terms and Conditions, the User should immediately terminate the registration process or request a cancellation of his/her registration and/shall not use the Service.
4. SERVICE ACKNOWLEDGEMENT AND UNDERTAKINGS
4.1 The User acknowledges and understands that Fortytwo Marketing acts as a channel for the information and content of the SMS. The User acknowledges that Fortytwo Marketing shall not be responsible for any content transmitted and that full responsibility for such content rests with the User. The User shall observe all relevant legislation and regulations applicable in their jurisdiction and in the jurisdiction in which the SMS shall be transmitted and/or terminated. It shall be the sole responsibility of the User to ensure awareness of all applicable laws, regulations and codes of conduct to which they may be subject and to ensure compliance therewith. The User shall keep up-to-date with any modifications in existing legal requirements and/or any regulatory requirements which may impact the Service.
4.2 The User shall be solely responsible to abide by all legal requirements and obtain any consent/opt-in required and shall indemnify Fortytwo Marketing from such obligation. The User shall also be responsible to provide Fortytwo Telecom with the relevant consent/opt-in information, upon request.
4.3 The User agrees to notify Fortytwo Marketing immediately of any unauthorized use of its account or any other breach of security.
4.4 Fortytwo Marketing, prohibits any person, business or entity to gain or attempt to gain any unauthorized access, or to deliver or attempt to deliver any unauthorized, damaging or malicious code to the Website. Any damages and/or losses resulting from the misuse of the Service by the User shall be claimed by Fortytwo Marketing from the said User accordingly, including through the use of legal action where necessary.
5. REGISTRATION AND SECURITY
The User must register on the Website to make use of the Services offered by Fortytwo Marketing. The User must complete the registration process and must provide Fortytwo Marketing with up to date, complete and accurate information as requested by Fortytwo Marketing (“Registration Data”). Failure to provide accurate and complete information upon registration may result in the termination of the Service. The User shall be required to choose a username and password and shall be responsible for maintaining the confidentiality of the username and password. The User shall be entirely responsible for any and all of the activities that occur under the registered account. The User shall be strictly liable to make payment of all charges incurred under the account whether or not these charges are incurred by the User himself or any other person, authorized or unauthorised, intentionally or unintentionally, or as a result of any virus, hack or security breach.
6. PAYMENT AND PAYMENT TERMS
6.1. Payment terms:
Payment is to be made in accordance to the details provided in the Registration Form.
6.1.1. Pre-paid User: The method of payment for all pre-paid Users designated as such in the Service Order Form shall be by bank/electronic transfer, credit card, debit card or Paypal in advance of any usage.
6.2. The User shall make all payments in Euro (€).
6.3. The Charges are exclusive of Value Added Tax (VAT), which shall be payable by the User within the EU jurisdiction. Any User subscribing to this Service within the EU jurisdiction, shall be a registered business and shall only use this Service in respect of such business. In addition, any User subscribing to this Service within the EU Jurisdiction, shall be in possession of a valid VAT identification number and shall provide Fortytwo Marketing with a valid VAT identification number upon registration for the Service. For the avoidance of doubt, the User shall be solely responsible to ascertain the validity and correct use of the provided VAT identification number. This Clause is not applicable to Users outside of the EU, countries not subject to VAT or Maltese jurisdiction.
6.4. Due to the fluid nature of the Service, prices are subject to fluctuate (increase or decrease) at any point in time. Fortytwo Marketing reserves the right to change its prices with immediate effect. The User shall best endeavour to enquire about the updated prices from Fortytwo Marketing on a regular basis. All latest price sheets are available on a web interface immediately to the User upon sign up.
6.5. The User shall pay all charges as calculated using the details recorded or logged by Fortytwo Marketing’s Billing System and not details recorded by the User.
7. REFUNDS OF PAYMENTS
No refunds are made, except for refunds covering the value of credits not yet expired in the event that the Service becomes unavailable (terminated or blocked) due to Fortytwo Marketing’s fault. Provided that, a refund shall only be made, in cases where, Fortytwo Marketing fails to find a remedy for such fault, within thirty (30) days, from when the fault occurred.
8. CREDIT BALANCE EXPIRY
The User shall make use of the credits deposited into the account, within twelve (12) months from the date of deposit. In the event that, the User fails to use all the credits within the stipulated time, then such credits shall be reclaimed by Fortytwo Marketing. Fortytwo Marketing may, at its own discretion, extend this period of time on a case to case basis.
The User may terminate the Service at any time, provided that the User gives Fortytwo Marketing a prior written notice of thirty (30) days. The notice should be sent through an e-mail, sent to [email protected] with a subject line ‘Terminate’ and the User’s username should be incorporated in the body of the e-mail. For the avoidance of doubt, Fortytwo Marketing reserves the right to terminate the Service for any reason by giving a prior written notice of thirty (30) days to the User.
10. ACCOUNT SUSPENSION
Fortytwo Marketing reserves the right to suspend or archive any trial account set-up by the User. The User may request the re-activation of the account and reactivation shall only take place at the discretion of Fortytwo Marketing. In the event that the account has been suspended, the User shall only be refunded of any available credit at the discretion of Fortytwo Marketing.
In the event that the User breaches any of the Terms and Conditions herein, including terms relating to the payment of any amount due, then, without any prejudice to any legal rights, Fortytwo Marketing shall reserve the right to suspend or terminate the provision of the Service to the User or suspend, disable or terminate the User’s account with immediate effect, claim damages or sue the User for specific performance by the User.
Fortytwo Marketing shall, under no circumstances, be liable for any loss, damages or claims whatsoever, made by the User, including any direct, indirect, consequential or incidental damages, or lost profits, business interruption, misuse of the service, failure to meet any duty of care, or claims by a third party arising out of or in connection with these Terms and Conditions, whether or not any representative of Fortytwo Marketing has been made aware of the possibility of such loss, damages, claims or costs.
Notwithstanding any other indemnity given to Fortytwo Marketing by the User under these Terms and Conditions, the User agrees that Fortytwo Marketing shall not be liable for any damages, whether direct or indirect, consequential or incidental, howsoever in connection with any breach by the User of these Terms and Conditions associated with the account of the User and the User shall indemnify and hold Fortytwo Marketing harmless against all claims, demands, actions, costs, expenses, including but not limited to disbursements, losses and damages arising from or suffered or incurred by reason of any breach by the User of these Terms and Conditions or claims, including but not limited to the defense of such claim.
14. FORCE MAJEURE
14.1 Fortytwo Marketing shall not be liable for any delay in performing its obligations under these Terms and Conditions caused by circumstances beyond Fortytwo Marketing’s reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection, civil disorder or military operations, national or local emergency, acts or omission of government or other competent authority or regulatory authority, acts or omissions of communication network operators, fire, flood, lightning or other weather or exceptional severity, subsidence, explosion or industrial disputes.
14.2 If Fortytwo Marketing is affected by circumstances beyond its reasonable control, Fortytwo Marketing shall notify the User and shall use reasonable endeavors to overcome the effects. If those effects continue for more than three (3) months, the Parties shall enter into a discussion to agree, in good faith, the best way forward.
15. LAW AND JURISDICTION
These Terms and Conditions and all rights and obligations of the Parties hereto shall be governed and construed according to the laws of the Republic of Malta. Any dispute, controversy or claim arising out of or in connection with these Terms and Conditions, or the breach, termination or invalidity thereof, shall primarily be resolved with good faith negotiations between the Parties, and if such negotiation fails, then it shall be referred to and finally resolved and submitted to the exclusive jurisdiction of the Courts of the Republic of Malta.
16. CHANGES AND AMENDMENTS
Fortytwo Marketing expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in these Terms and Conditions or any information on the Website without prior notice. The User acknowledges that it has the responsibility to review these Terms and Conditions and to keep itself updated of any modifications made. The continued use of the Service by the User after such modifications have taken place, will constitute acknowledgement of the modified Terms and Conditions and agreement to be bound by the modified Terms and Conditions.
17. DATA AND PRIVACY
17.1 Fortytwo Marketing, shall under no circumstances, monitor, edit or disclose any personal information about the User or the User’s account, phonebook, message content and mobile numbers, other than in the normal course of the use of the Services, without the User’s prior permission, unless Fortytwo Marketing has a bona fide belief that such action is necessary to conform to legal requirements or comply with the legal process, protect and defend the rights, property or legally protectable interest of Fortytwo Marketing. The User or any other third party, may enforce any of the provisions of these Terms and Conditions in order to respond to services or technical issues and may communicate with Fortytwo Marketing from time to time, for the purposes of including, but not limited to, communicating information regarding any updates, upgrades, notices or other information.
17.2 The User agrees that Fortytwo Marketing may make use of a User’s profile information for non-personal statistics purposes.
17.3 The User agrees that it shall not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of end users including but not limited to names, addresses, e-mail addresses, landlines and mobile telephone numbers and shall not disclose the personal information of end users to any third party save without the express consent of the end user or where specifically required by law to do so.
17.4 The User shall be solely responsible for the correct processing of personal data relating to natural persons and shall also be solely responsible to ensure that all necessary consents have been duly obtained.
18. CONFIDENTIAL INFORMATION
The User agrees, during the term of these Terms and Conditions, to keep all the Confidential Information about Fortytwo Marketing secret and confidential, to use it exclusively for the purpose of these Terms and Conditions and not to disclose the Confidential Information to any person other than to those employees or professional advisors with a need-to-know-how and to the extent only that such disclosure is necessary for the purpose of these Terms and Conditions and in such circumstances, the User shall ensure that the person receiving such information is under a duty to keep such Confidential Information confidential.
19. CUSTOMER SUPPORT
Fortytwo Marketing will offer 24/7 customer support to the User. The principal customer support and service mechanism is e-mail. Where the User encounters any problems, an e-mail should be sent to [email protected] and the support service will respond to the e-mail within two (2) hours of transmission.
20. TRADEMARK INFORMATION
The Fortytwo Marketing, Messito brand names, their respective logos and other trademarks belonging to Fortytwo Marketing are the exclusive Intellectual Property of Fortytwo Marketing and the User cannot use or display such Intellectual Property in any way without the prior written consent of Fortytwo Marketing.
21. COPYRIGHT ABUSE
The User acknowledges and agrees that, in the event that Fortytwo Marketing reasonably believes that any copyright or other Intellectual Property is being infringed, Fortytwo Marketing may at its sole discretion prevent the User from accessing the Website, close the User account and charge a termination fee in order to cover the administration costs.
22. GENERAL PROVISIONS
22.1 If any of the provisions of these Terms and Conditions are held to be illegal, invalid or unenforceable, whether in whole or in part, the enforceability of the remainder provisions of these Terms and Conditions shall not be affected.
22.2 Any waiver, concession or extra time Fortytwo Marketing may allow to the User, are limited to the specific circumstances in which it was given. It does not affect Fortytwo Marketing’s rights under these Terms and Conditions in any other way.
22.3 Fortytwo Marketing may assign, subcontract, transfer, novate or howsoever deal with these Terms and Conditions to any other party as long as such party agrees to be bound by its terms. These Terms and Conditions are personal to the User and the User may not assign, subcontract, transfer, novate or howsoever deal with any of its rights or obligations under these Terms and Conditions without the prior written consent of Fortytwo Marketing.
22.4 These Terms and Conditions shall constitute the complete and exclusive agreement between Fortytwo Marketing and the User in relation to the Service. While Fortytwo Marketing reserves the right to modify these Terms and Conditions at any time, the Terms and Conditions set herein may not be modified by the User, unless both Fortytwo Marketing and the User execute a separate written agreement.
© Fortytwo Marketing V3_December 2014