Terms of Use

By signing up for our services or first using our services, whichever occurs first, you agree to be bound by the following terms and conditions.

1. Definitions

1.1. “Agreement” means the agreement for the supply of the Services;
1.2. “Billable Event” mean the act of confirmed acceptance by GigaSMS of each message submitted. Client agrees that the unique reference number for such confirmed acceptance, issued by GigaSMS to Client, and available from GigaSMS in case of dispute, shall serve as sufficient proof of acceptance.
1.3. “Bulk SMS package” means a set of outbound messages prepaid by Client. Bulk SMS packages may be of different size and validity time.
1.4. “Client” means the company firm or individual who has agreed to purchase the Services pursuant to the Agreement;
1.5. ‘Client Rights” means any and all Intellectual Property Rights which are created or used by the Client prior to the Commencement Date or which are created by the Client independently of the delivery or the receipt of the Services including but not limited to Intellectual Property Rights embedded in Client Content;
1.6. “Client Content” means any information provided by the Client for onward transmission by GigaSMS as part of the Services
1.7. “Client Customer Data” means certain data held by the Client concerning its customers including mobile telephone numbers but not enough to constitute “personal data”.
1.8. “Commencement Date” means the date for the commencement of the Agreement;
1.9. “Intellectual Property Rights” means all copyright (including but not limited to rights in computer software), patents, trade marks, trade secrets, registered and unregistered design rights, database rights and topography rights, all rights to bring an action for passing off, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
1.10. “GigaSMS Data” means certain data which will arise in the course of GigaSMS’s provision of the Services in which GigaSMS will own the GigaSMS Rights;
1.11. “GigaSMS Rights’ means any and all Intellectual Property Rights which were created or used by GigaSMS prior to the Commencement Date or which are created independently of the delivery of the Services or which arise or are created in the course of the provision of the Services;
1.12. ‘Platform” means the mobile application services platform, and associated systems and network connections owned and operated by GigaSMS or by suppliers or partners of GigaSMS, which will be used to provide the Services to the Client
1.13. “Product Specifications” means the documentation provided by GigaSMS detailing the features of each of GigaSMS’s products and services as updated from time to time.
1.14. “Rights” means the Client Rights and/or GigaSMS’s Rights
1.15. “Services” means the managed mobile infrastructure services or other services of GigaSMS as defined in the relevant Product Specifications as requested by the Client and agreed to be provided by GigaSMS in accordance with the terms of the Agreement;
1.16. “Service Interface” means the method to be used by the Client to connect to the Platform;
1.17. “Term” means the period specified in the Agreement for the delivery of the Services as maybe extended in accordance with the Agreement;

2. The Services

2.1. GigaSMS shall provide the Services from the Commencement Date until the Term expires or the Agreement is otherwise terminated, subject to these terms and conditions.
2.2. The Services shall be provided in accordance with these terms and conditions and include the following:
2.2.1. accepting of Client's SMS messages submitted to GigaSMS platform for subsequent delivery to mobile operators;
2.2.2. collection of user SMS messages sent to the Client's dedicated or shared incoming number and subsequent forwarding of the same to the Client's application or email address.

3. Client Commitments

3.1. The Client undertakes and warrants to GigaSMS the following:
3.1.1. at all times to conform to the protocol specification for the relevant Service Interface notified to them by GigaSMS from time to time;
3.1.2. to attempt to attach only to the nominated Service Interface(s) and using only the names and passwords notified to them by GigaSMS from time to time;
3.1.3. to nominate at least 2 weeks prior to the Commencement Date such employees of the Client as may be required to act as technical coordinators and GigaSMS’s contact points in order to coordinate delivery of the Services;
3.1.4. to ensure that the technical co-ordinators and other staff of the Client follow the protocol specification, service administration and fault reporting procedures notified to them by GigaSMS from time to time;
3.1.5. to accept responsibility for reasonable charges arising from the submission by the Client to GigaSMS of messages for delivery to invalid mobile phone numbers;
3.1.6. to supply complete and accurate instructions, Client Content and Client Customer Data to GigaSMS;
3.1.7. that neither the Client Content nor the Client Customer Data or its supply to or use by GigaSMS shall infringe the rights of any third parties;
3.1.8. to use the Services for its proper and lawful purpose only and in accordance with such reasonable instructions as GigaSMS may from time to time notify to the Client.
3.2. Without limitation, the Client undertakes not to use the Services or permit the Services to be used or otherwise during the course of the Agreement:
3.2.1. for sending any communication which is defamatory, offensive or abusive or of an obscene or menacing nature;
3.2.2. for the persistent sending of messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;
3.2.3. for the sending of unsolicited messages;
3.2.4. in any way that contravenes European or national regulations or industry codes of practice including but not limited to that of the Wireless Marketing Association (‘www.wirelessmarketing.org.uk);

4. Price and Payment

4.1. The Services shall be performed at GigaSMS’s then current standard charges.
4.2. All charges for the Services and the Billable Events shall be calculated by reference to data recorded by GigaSMS.
4.3. For the avoidance of doubt a message charge is incurred by the Client each time a Billable Event occurs.
4.4. Outbound messages can be purchased only in Bulk SMS packages and must be prepaid in full.
4.5. All Bulk SMS packages have limited validity period according to GigaSMS then current price list. Each package must be fully consumed by Client within the validity period. Upon expiration of the validity period all remaining balance is canceled. In the event that GigaSMS fails to provide the service for a continuous time, the validity period will be extended for the time the service was not rendered.
4.6. As market situation changes, prices can be changed by GigaSMS from time to time with 15 day written notice to the Client. Continued use of GigaSMS services after a price change signifies Client's acceptance of the new prices. In the event that Client does not accept a price change, the Client can terminate the agreement with the refund of all remaining balance less any due payments and bank charges.
4.7. In the event that any payment due under the Agreement is not paid on the due date for payment then GigaSMS shall be entitled to charge interest thereon at the rate of fifteen percent per annum from time to time from the date payment becomes due until payment in full.

5. Confidentiality

5.1. For the purpose of this Agreement, “Confidential Information” shall mean all Intellectual Property Rights, drawings, software, data, specifications, processes, testing procedures, customer information, financial information, product and services information and all other technical, business and other information and material relating or belonging to either party or its customers which is during the course of the Agreement disclosed by either party to the other either directly or indirectly.
5.2. Confidential Information shall not include:
5.2.1. information which was in the public domain at the time of disclosure;
5.2.2. information which, though originally Confidential Information, subsequently falls into the public domain through no fault of the other party or its personnel receiving the Confidential Information;
5.2.3. information received by the other party from a third party without any breach of any obligation of confidentiality owed to the other party; and
5.2.4. information disclosed pursuant to a requirement of law, to the extent so required.
5.3. Save as permitted under clause 11.3 each party hereby agrees, other than as permitted by the Agreement, to keep the Confidential Information of the other in complete confidence and not to disclose the same to any third parties (except as set out above), nor use it for any purposes other than for the performance of its respective duties under the Agreement (the “Specific Purposes”). Either party may disclose the Confidential Information of the other to its employees but only to the extent reasonably necessary for the Specific Purposes and subject to the recipient being subject to obligations of confidentiality relating to that Confidential Information no less stringent than the requirements of this Clause 5. Each party hereby agrees to use reasonable endeavours to ensure that all such employees do not disclose Confidential Information of the other party to third parties or use the same otherwise than as reasonably required for the Specific Purposes. The provisions of this Clause shall continue in full force and effect notwithstanding the termination of the Agreement for any reason whatsoever.

6. Warranties / Liability

6.1. GigaSMS warrants that the Services will be performed with reasonable care and skill and so far as reasonably possible.
6.2. GigaSMS shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Client Content, Client Customer Data or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or nonarrival or any other fault of the Client
6.3. GigaSMS will not be liable in the event that it is unable to perform any obligation under the Agreement or provide the Services to the Client, because of any factor outside its control including but not limited to Act of God, industrial action, default or failure of a third party or governmental action.
6.4. Limitation of liability.
6.4.1. GENERALLY. THE Client EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT ITS OWN RISK AND THAT GigaSMS IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. GigaSMS WILL USE COMMERICIALLY REASONABLE EFFORTS TO MAKE ACCESS TO GigaSMS AVAILABLE TO THE Client THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE Client WILL BE ABLE TO ACCESS GigaSMS AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
6.4.2. ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in clause 6.4.1, GigaSMS 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 GigaSMS GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF GigaSMS GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
(ii) SHALL IN NO EVENT BE LIABLE TO THE Client 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 Client AGREES TO INDEMNIFY GigaSMS PURSUANT TO CLAUSE 10 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, GigaSMS 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 Client AND/OR THE Client ALLEGING LIABILITY.
6.4.3. HIGH RISK ACTIVITIES. THE GigaSMS 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 GigaSMS 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, GigaSMS 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.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, GigaSMS’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.

7. Intellectual Property Rights

7.1. Ownership of all GigaSMS Rights shall vest in and remain with GigaSMS.
7.2. GigaSMS shall license to the Client for the term of the Agreement such parts of GigaSMS Rights as are directly and unavoidably required by the Client to use any work delivered or made available to the Client in the provision of the Services on the basis set out in this Clause.
7.3. The Client shall license to GigaSMS the Client Rights as are required by GigaSMS to provide the Services on the basis set out in this Clause
7.4. Any license granted under this Clause shall be non-transferable, non-sublicensable, non exclusive and royalty free and shall be limited to the Term and shall be granted only for the purpose of fulfilling the respective party’s obligations under this Agreement.
7.5. Each party warrants to the other that it is the owner of its respective Rights or is entitled to license its respective Rights as provided under clauses 7.2 or 7.3, as applicable.
7.6. Neither party shall reverse engineer, decompile or disassemble any software comprised in the other party’s Rights. Should interoperability of any software be required the party shall provide to the other all reasonably necessary API’s to carry out such interoperability

8. Non-solicitation of Employees

Both parties agree, during the Term and for a period of six (6) months thereafter, not to solicit employ or engage any employees of, or any subcontractors used by the other party without the prior written consent of that party.

9. Non-assignability

9.1. The Client may not without GigaSMS’s prior written consent, transfer or assign or otherwise deal with its rights under this Agreement.

10. Intellectual Property Rights Indemnity

10.1. The Client will indemnify GigaSMS and keep GigaSMS fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of all or any part of the Client Rights and any third party material, information and Intellectual Property Rights which are provided by the Client to GigaSMS infringes the copyright or other Intellectual Property Rights of any third party.

11. Suspension and Termination

11.1. GigaSMS may in its sole discretion suspend provision of the Services at any time in the event that:
11.1.1. GigaSMS is entitled to terminate the Agreement;
11.1.2. GigaSMS is obliged to comply with an order, instruction or request of the government or other competent authority; or
11.1.3. GigaSMS in its reasonable opinion has cause to believe that the Customer is in breach of any of its obligations under the Agreement, including but not limited to failure to comply with any applicable industry body guidelines or regulator-imposed guidelines, or
11.1.4. in the event that any payment due hereunder is outstanding after the due date for payment
11.2. The Agreement may be terminated prior to expiration of the Term in accordance with the following:
11.2.1. by either party in the event the other has failed to perform any material obligation required to be performed under the Agreement and such failure is not corrected with thirty (30) days from receipt of written notice advising of such failure from the other party, which notice shall make reference to this clause. For the avoidance of doubt three breaches in one month or a series of three of the same breaches in any twelve month period of the Service Level Agreement shall be deemed to be a material breach of the Agreement; or
11.2.2. by GigaSMS by immediate notice in the event that the Client uses the Services for the transmission of obscene, defamatory, offensive content or for any illegal or improper purpose;
11.2.3. the Agreement shall terminate immediately if either party (being a company) presents a petition or has a petition presented by a creditor for its winding up, convenes a meeting to pass a resolution for voluntary winding up or enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or shall suffer anything analogous to these matters to occur to him or it; or
11.2.4. by GigaSMS in the event that any payment due hereunder is not paid by the Client within 30 days of the due date for payment.
11.3. Upon termination or expiration of the Agreement the Client shall deliver to GigaSMS all copies of all applicable Confidential Information of GigaSMS within fourteen (14) days of such termination or expiration or (at the option of GigaSMS a statement confirming that such copies have been destroyed and GigaSMS shall deliver to the Client all information in the nature of Confidential Information of the Client within such period save that GigaSMS shall be entitled to retain and use all Confidential Information of the Client including but not limited to MSISDN numbers provided by the Client to GigaSMS as part of the Client Customer Data or Client Content notwithstanding termination of the Agreement pending payment in full of all monies due to GigaSMS from the Client under the Agreement.

12. Announcement

Any public announcement regarding the Agreement and/or the subject matter of the Agreement shall be agreed in writing in advance by the Parties.

13. Data Protection

13.1. The Client warrants that the Client Customer Data which shall be made available to GigaSMS pursuant to this Agreement shall not amount to personal data and that, if any other data is made available which amounts to personal data, in respect thereof the Client shall be the data controller and GigaSMS the data processor.

14. Force Majeure

14.1. Either party’s performance of any part of the Agreement, exclusive of payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:
14.1.1. the acts or omissions of the other party or GigaSMS’s mobile operator service providers;
14.1.2. flood, fire, earthquake, strike or riot; or
14.1.3. any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party (collectively referred to as “force majeure conditions”).
14.2. If any such force majeure condition occurs, the non-performing party shall make reasonable efforts to notify the other party of the nature of any such condition and the extent of the delay, and shall make reasonable, good faith efforts to resume performance as soon as possible.

15. General

15.1. The Agreement constitutes the entire agreement between the parties and supersedes any prior discussions, writings, agreements and negotiations with respect thereto.
15.2. The Agreement can be amended by GigaSMS by publishing a new version of the Agreement on the company website http://www.gigasms.com.
15.3. No waiver of any provision of the Agreement by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of the Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
15.4. Any notice to be served under the Agreement shall be in writing and sent by email.
15.5. If any portion of the Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of the Agreement shall remain in effect in accordance with its terms as modified by such deletion.