TERMS AND CONDITIONS
Smart Communications, Inc., (`Smart`) shall provide Short Message System (SMS) products and services (`Services`) to you (`Client`) under these Terms and Conditions. Client understands and acknowledges that Client is entering into an agreement with Smart and not the content provider with whom Smart has associated to bring Client these Services. By completing and signing the registration form and/or by completing the registration process by clicking on the `accept` button via the internet or SMS you are agreeing to become a party to and abide by these Terms and Conditions herein with Smart and acknowledge that you have read and understood the same.
1. Definition of Terms:
The following words will have these meanings in these Terms and Conditions unless the context otherwise specifies:
Service/s – The term shall be used herein to collectively describe the services rendered by Smart to Client during sending, transfer, passage and communication of Content from Texting public to Client and vice versa. Service shall be provided through Short Messaging System (SMS) and/or Internet/Email Platform utilizing a Global System for Mobile Communications (GSM) Network.
Content –The term shall be used herein to collectively describe all data, information, messages, statements and all forms of communiqués that pass through Smart by virtue of the Services from the Texting Public to Client and vice versa.
Client –The term shall be used herein to describe any agency, institution, organization, company, corporation, partnership or any other legal entity, which has expressed interest in availing of Services.
Texting Public – The term shall be used herein to describe any individual, agency, institution, organization, company, corporation, partnership or any other legal entity, that may send a text message or messages to the Client by virtue of the Services.
2. The following policy shall govern the use of the SMART Service by Client.
EXCLUSION FROM LIABILITY
- Client shall not use the Services for spamming. Spamming includes, but is not limited to (1) the bulksending or sending of unsolicited text messages which provoke complaints from recipients, (2) the sending of junk text messages, (3) the use of distribution lists that include people who have not given specific permission to be included in such distribution process, (4) sending commercial ads to individuals or groups that do not permit it, (5) SMS harassment of another Client/s, individuals or legal entities, including but not limited to, transmitting any threatening, libelous or obscene material, or material of any nature which could be deemed to be offensive, and (6) the emailing of age- inappropriate communications or content to anyone under the age of 18.
- Client must comply with all the regulations of National Telecommunications Commission (NTC) when sending SMS Broadcast to the Texting Public.
- Client shall not use the Services in a manner which violates any city, state, national or international law or regulation. Client shall not resell, rent, lease, grant a security interest in, or make commercial use of the Services without the express written consent of Smart.
- The Client shall use the Services for lawful purposes only. Client shall not send or transmit through the Services any material which violates or any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or public rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that will constitute criminal offense or otherwise violate any law.
- Smart shall not have any liability whatsoever or be deemed in default for any delay or failure in the performance of its obligations, commitments and undertakings resulting from or arising out of the uses and access by the Client and/or the Texting public of the Services rendered by Smart or acts or omissions beyond the control of Smart, including without limitation to incidents of force majeure and other fortuitous events.
- Client represents that the Client identification or keyword selected by the Client, when used alone or combined with a second or third level keyword, does not interfere with the rights of any third party and is not being selected for any unlawful purpose. Client acknowledges and agrees that if such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, Smart may immediately suspend the use of such keyword, and Client will indemnify and hold Smart harmless for any claim or demand against Smart that arises out of such selection. Client acknowledges and agrees that neither Smart nor any of its licensors shall be liable to Client in the event Smart is ordered or required, as a result of a court order or legal settlement, or contractual requirement with any licensor, to desist from using or permitting the use of a particular keyword. If as a result of such action, Client loses a keyword, the CLIENT’s sole remedy shall be the receipt of a replacement keyword.
- The Client is responsible for and must provide the cellular phone/computer and phone/internet service subscription needed to access and use the Services. The Client must, at all times, comply with Smart‘s requirements regarding the proper access equipment, as well as the mode of access to and/ or use of the Services.
- The Client accepts the particular program code which Smart will assign for use by the Client.
- Should the Client need for a personalized program code, a separate request shall be made. However, all personalized program code requests shall undergo the validation process of Smart.
- Smart reserves the right to amend any particular software program or facility which it uses to provide the Services. The Client agrees to abide by all applicable laws relating to the use of the Services. The Client must abide by the generally accepted rules on conduct relating to the proper use of SMS. The definition and interpretation of what constitutes acts of violation of the generally accepted rules on conduct shall remain the sole right of Smart. Violations will be deemed adequate grounds for the termination of these Terms and Conditions.
- The transfer, passage and communication of Content from the Texting public to Client or vice versa shall be for the originator’s own account and will be charged based on prevailing tariff rates, plus all applicable toll charges and taxes to SMS-based messages (text messages). Client shall be responsible to notify the rates to the Texting public.
- The Client acknowledges that it shall not be entitled to any commission, fees, any forms of payment, emolument or any other compensation for the Services to be rendered by Smart.
- There shall be no employer-employee relationship between Client and Smart and its employees and other persons hired by it.
- Client hereby agrees to maintain confidential all information with regard to the Services to be provided by Smart and shall not disclose to anybody any provisions of these Terms and Conditions for the duration of the Services.
- Smart shall not release Client’s information to another Client or to another person or entity, since all applications shall be treated with confidentiality, except where the prior written consent of the Client is obtained or such information is required to be disclosed pursuant to any applicable law or legal process issued by any court.
EFFECTIVITY, TERMS AND CONDITIONS
- These Terms and Conditions shall be in effect for a period of one (1) year from date of signing and shall be deemed renewed for a period of one (1) year on each annual anniversary date of signing unless either party notifies the other in writing of its intention not to renew these Terms and Conditions not less than thirty (30) days prior to the annual anniversary date of these Terms and Conditions. Upon delivery of the party’s intention not to renew these Terms and Conditions to the other party, these Terms and Conditions shall be deemed to terminate on the last day of then current one-year period.
- The automatic renewal of these Terms and Conditions shall, however, be without prejudice to the right of either party to pre-terminate these Terms and Conditions, at any time, with or without cause, by giving the other party at least thirty (30) days prior written notice.
- The covenants contained in these Terms and Conditions which, by their terms, require their performance after the expiration or termination of these Terms and Conditions shall be enforceable notwithstanding the expiration or termination of these Terms and Conditions.
- Neither the course of conduct between Smart and the Client nor trade practice will modify these Terms and Conditions. If any specific provision contained herein is determined to be invalid, the other remaining provisions will remain in full force and effect. The provisions of all obligations and all restrictions on the Client will survive the termination of Services.
- Should Smart suspend or terminate the Services pursuant to any of the justifiable reasons earlier stipulated, the Client has no right to any data stored and Smart will be under no obligation to make such data or copies of it available to the Client in any form whatsoever. Client data stored on Smart’s facilities will be explicitly erased without prior notice.
- The headings in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision thereof.
- Smart reserves the right to revise these Terms and Conditions at any time upon notice (in such form as determined by Smart) to the Client.
- The rights and obligations under these Terms and Conditions shall not be capable of assignment or transfer by Client without the prior written consent of Smart.
- Client shall act strictly in accordance with its authority as stipulated in these Terms and Conditions. No misrepresentations by Client relative to the Content it sends shall in any way bind Smart. In case of such misrepresentations, only Client shall be bound by the same and shall be solely liable and accountable to the Texting public.
- Client shall be liable for damages caused to Smart or third persons due to the acts or omissions of the Client, any of its officers and/or employees constituting fraud, misinformation or criminal behaviour, or those acts that are prejudicial to the interests of Smart.
- Client agrees to indemnify Smart from and against any claim, suit, action or proceeding brought against Smart based on claims that any Content provided by Client infringes any patent, copyright, trade secret or other proprietary right property or other right of any person or entity, or as a result of any threatening, libelous, obscene, harassing or offensive material contained in any Client communications and where the matter concerns the accuracy and/or validity of Content or any information passing through Smart in connection with these Services.
- Smart and Client shall determine the corresponding level of SMS traffic. Should Client’s SMS traffic fall below the agreed level for three (3) consecutive months, Smart shall review reasons behind low usage and recommend next steps, including termination of the service.
- The Services are supplied on an “as is “ basis without any express or implied warranties except for those as may be provided for by fair business practice under Philippine relevant laws and regulations. Client waives any and all claims for service fees, compensations or other benefits as well as claims for liabilities, attorney’s fees, suits, costs and for any special, indirect, incidental, or consequential damages OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SMART SERVICE, THE PERFORMANCE OF SMART SERVICE, OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFIT, BUSINESS OPPORTUNITIES, BUSINESS STOPPAGE, LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER DAMAGE, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO OR CHANGES MADE TO CLIENT'S TRANSMISSIONS OR DATA, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES against Smart or its officers, directors and employees or any of its affiliates, subsidiaries, suppliers or parent corporation(s) resulting from or arising out of the use (or inability to use) and access of the Services rendered by Smart by virtue of these Terms and Conditions.
- These Terms and Conditions shall be governed by the laws of the Republic of the Philippines and the Parties hereby submit to the exclusive jurisdiction of the Courts of Makati City, Philippines.