Terms and Conditions
Following Terms & Conditions ("Terms") apply to you as a User/ Reseller ("You") of the Site located at URL http://www.mnatives.com ("Site") and the Services available therein. ACL Mobile Ltd ("Company") owns this Site and the Services offered herein. In addition to these Terms, you will also be liable to comply with such other terms and directions that the Company may require You to comply with. Company reserves the right to modify these Terms at any time at its sole discretion. You are advised to check for any modifications to these Terms made time to time. Your continued use of the Site after any amendments will constitute your binding acceptance to the modified Terms.
Customer: means a Mobile Subscriber who receives an SMS message from You (as a user of Services) and who is also a customer of your products and services and who have given their consent to receive promotional SMS message from You;
Service: means Bulk SMS Service, or any customization and branding thereof;
SMS: means Short Message Service;
Bulk SMS Service: Company’s Service that enables You, as a user of Service, to send SMS messages in bulk using Company’s network to Customers;
2. LIMITATION ON SERVICE
You may send SMS messages in bulk to Your Customers using the Company’s Service. Company may provide access to the Service through a web-faced interface, a desktop application, a plugin, or through any other mode. Company in its sole discretion may withdraw or limit the Service or any features thereof as it may deem fit. All SMS messages sent through the Services will be stored and transmitted through Company’s Network.
As a reseller of Service, You may be:
- Provided with a readymade white-label website under Your brand name, through which you may sell the Services to a user, in accordance with these Terms;
- Able to create and manage templates;
- Able to on-the-fly sender name requests and approvals;
- Able to personalize your website with logo, banner and a web address (domain name) of your choice, subject to availability;
As a User of Services, You will be:
- Able to send SMS messages in bulk to your Customers as part of group messaging through the Services;
3. YOUR OBLIGATIONS
You will be responsible to:
- Maintain the security and integrity of Services and the Site;
- Purchase your own domain on which You will host your website;
- Comply with these Terms and any directions issued by Company from time to time;
- Safeguard any User ID and Password allocated to You. You shall be solely liable for all acts, authorized or unauthorized and any use/misuse of the User ID and Password and any actions occurring under your account, which shall be deemed to be made by You;
- Comply with all relevant legislations, regulations and any directions issued by a governmental or statutory authority, which applies to the provisioning of Services to Your Customers , including but not limited to directions and guidelines issued by Telecom Regulatory Authority of India;
- If You are a Reseller of the Services, You will be required to enter into a definite agreement with Company. You will be required to comply with the terms of such agreement in addition to these Terms;
- In case You are appointed as a Reseller of the Services, You will be solely and personally liable for all acts and omissions of any user of Service to whom You have provided access to the Company’s Service. For avoidance of doubt, wherever in these Terms You are required to comply with an obligation, You shall also ensure that a user of Service to whom you provide access to the Service also complies with such obligation, as if such user were You.
You understand that there are inherent security risks associated with Internet and other means of communications, therefore, any data transferred through use of these communication means may be interfered with and accessed by unauthorized third parties. You, therefore, agree to employ all security means to protect such unauthorized interference and Company shall not be liable in any manner in this regard.
4. PROHIBITED ACTS AND GUIDELINES
- Illegal use
Our Services can be used for lawful purposes only. Transmission, distribution or storage of any material through Service in violation of any applicable law or regulation applicable in India is strictly prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation and material that is obscene, defamatory, constitutes an illegal threat, and violates Export control laws or constitutes anti national activities.
You shall not upload, post or otherwise make available using Services any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright or You are either the copyright owner or have permission from the Copyright owner rests with You. You shall be solely liable for any claims for damages arising or resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission and always keep the Company indemnified from such claims.
- Your conduct
You shall use Services for lawful purposes only. You shall not post or transmit using Services any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offence, give right to civil liability or otherwise violate any law, or which, without the Company express prior approval. You are prohibited from engaging in any conduct that restricts or inhibits other users from using or enjoying the Services. You shall not use Services to advertise or perform any commercial solicitation, including but not limited to, the solicitation of users to become subscribers of other on-line information Services which is competitive with the Services.
- System and Network Security
Violation of system or network security is prohibited, and may result in criminal and Civil Liability. The Company will investigate incidents involving such violations and may involve/will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
- Interference with Service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks.
- Forgery of any identification or obscuring of hostnames, usernames, IP addresses, or any message header information in any data.
- Harassing or threatening transmissions.
- Probing for means of gaining unauthorized access to computers or networks.
- Introducing or causing to introduce any computer contaminant or computer viruses into system or network.
- Introducing or causing to introduce any pornography material, SMS etc.
- SMS Delivery Guidelines
It is a condition of use of Services that You do not post or transmit or allow any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind through Service, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any local, state, national or international law; post or transmit any information, software or any other material which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or right holder; post or transmit any information, software or other material, which contains a virus or other harmful component; post, transmit or in any way exploit any information, software or other material for commercial purposes, or which contains advertising.
You cannot use any sender Id to send SMS other then Your own name, or a company or firm's name owned or managed by You. If You use a sender Id other than the one owned by You, Your account shall be terminated and all credits will be set to zero. A formal complaint will also be lodged (FIR) with the law enforcement agency.
You shall register the sender ID (which shall not be more than 11 characters) before sending any SMS. It requires 24 hours to register the Sender ID. You shall be solely responsible for messages sent through the registered Sender ID. As You only have the complete control of the Sender-ID (Alphanumeric or Numeric) of the MT SMS sent through Company Network, you agree not to misuse this facility. In case it is found that You are misusing this facility by sending a message on someone’s name without their approval, it shall be treated as a breach of these Terms and services will be terminated forthwith. It shall be Your sole responsibility to comply with the obligations mentioned herein and Company will in no way responsible for any such message and the subsequent fallout resulting there from.
Sending unsolicited SMS messages, including, without limitation, commercial advertising and informational announcements, is explicitly prohibited.
The Company has no control on the contents of the SMS sent and Company shall not be held responsible/liable directly or indirectly neither for the content of the SMS sent nor for any delay in delivery or non-delivery or for any errors routed by Company through Company network.
The Company shall not be responsible in any manner due to errors caused on account of internet delays, disconnection, time outs, routing problems etc.
You shall use the facilities provided by Company for delivery of MT SMS that terminates only within India or to such countries as permitted by the Company from time to time.
You will not send unsolicited SMS (also referred to as ‘spamming’) to Your subscribers. All SMS sent by You using Company’s Network must conform to IT Act 2000 and other relevant laws of India or similar provisions as applicable in your country of operation. Any violation of terms of this clause will be Your sole responsibility.
Company shall strive to deliver SMS to the Customer immediately upon its receipt from You. However Company shall not be responsible for any delay, non receipt of SMS or any other interruption in providing interconnection, which may occur due to technical reasons or snags in the system, break down of Company’s Network or any other equipment, server breakdown, maintenance shut down, breakdown of communication services and such interruption are beyond the control of Company. However, Company acknowledges that it will put in its best endeavors to achieve the best success rate in delivery of the SMS messages so routed through Company’s Network.
- Length of SMS
Single message size constitutes maximum upto 140 characters incase of a CDMA SMS & 160 characters incase of GSM SMS including the header & footer submitted to Company’s Network. Incase the message is larger than the aforementioned characters, single message shall means 134 characters in the case of CDMA SMS & 153 characters in the case of GSM SMS respectively.
- National Do Not Call Registry
Notwithstanding anything contained in these Terms, You hereby agree and undertake to fully comply with the Telecom Unsolicited Commercial Communications Regulations, 2007 (the "TRAI Regulations") and its amendments and Guidelines for Telemarketers, issued by Department of Telecommunications ("DOT Guidelines") and such other orders and directives issued by TRAI/ DOT from time to time in this regard and also undertake NOT to send, under any circumstances, any promotional messages using the Services, auto dialers USSD messages, WAP messages or in any other manner to any Customer, who is listed in the National Do Not Call Registry (NDNC). In case of non-compliance of DOT Guidelines, ACL in its discretion may terminate your account.
If You use the Company Services for sending any international SMS message to a Customer, You shall be solely liable to comply with any legislation/ guidelines similar to TRAI Regulations and DOT Guidelines applicable in such Customers country of residence. You agree to indemnify and hold harmless ACL from any liability, claims, demands, damages or expenses (including reasonable attorney or other professional fees and disbursements) arising from or relating to your non-compliance with this Clause. You shall be personally liable to indemnify ACL from all claims, losses, damages, penalty, etc., arising out of relating to acts, omissions, non-compliance to this provision by any user to whom You have provided access to the Services.
5. PAYMENT & REFUND
- In consideration of Company forwarding the SMS through the Services, You shall pay in advance the agreed amount per SMS + taxes ("Fees") as applicable for SMS sent by You or a user.
- Company shall charge for all the SMS routed by Company through its Network, irrespective of any delay, incomplete message and or non-receipt of the message by the respective Customer to whom such SMS has been forwarded. Company will notify any change in tariff to You through the Website. You shall be solely liable to communicate such changes to users, and collect from such users all charges payable to ACL.
- The use of Platform is available only on a pre-pay basis. You will purchase the pre-defined credits from Company for your use. The Credits will be available in various denominations having specific values, which you can purchase from Company. The number of MT SMS submitted by you or a user shall be counted for settlement.
- Company will charge Taxes as applicable to the Services.
- Company will accept the payments in Indian National Rupees (INR), Euro, Dollar or such other currency as it may specify on website from time to time. Presently company accepts payment through bank transfer, DD, third party payment gateway and Cheque payable at par. You or a user will be solely responsible to comply with the terms of any third party payment service provider whose services Company uses on the Site to facilitate payment transactions.
- Company shall not be responsible in any manner whatsoever to You or to any other third party for delayed, incomplete and non-delivery of SMS due to technical reasons.
- You will not send any unsolicited/objectionable message to your Customers, which is in contravention of any regulations and guidelines issued by Telecom Regulatory Authority of India or any other international authority having jurisdiction.
- You or users may not send any SMS to a Customer during the time period in which restrictions are applicable as per Customer’s country’s laws. Company may impose country specific time restrictions on the Services, which may prevent delivery of any SMS.
- You are free to determine the nature of content of the SMS, however, such content must not violate the restrictions imposed under these Terms.
- The Fees payable for Services are subject to change at the sole discretion of the Company.
- Company reserves the right to revise the fees, in case there is any change in/revision of IUC for inter-operator termination charges. Such revision in fees shall be binding on You as per the directions issued by the Company.
b. No Refund Policy
Before agreeing to these Terms and starting any relationship with Company, You are advised to test our Services. Company does not offer any refund of money at any stage or in any condition once You agree to these Terms, unless otherwise agreed in writing by the Company through a duly authorized signatory.
Company will provide you an option to purchase a non-refundable pack of 50 credits to test the quality of Service. You may discontinue the use of Service if you are not satisfied with the quality of Service during such testing. In case, You continue to use the Service after exhausting this limit, it will constitute Your binding acceptance to this No-refund Policy, and shall also apply to a user to whom you may provide access to the Company’s Service.
You will be provided with real time reporting for SMS sent by You through the Service. For the purpose of calculation of Fees, Company will use the data available at Company Network, which shall be final and binding on You.
7. TERM AND TERMINATION
These Terms shall come into force upon Your acceptance of these Terms and shall remain in effect unless terminated earlier, in the manner provided below:
Company may terminate Your account at any time for any reason by giving 24 (twenty four) hours advance written notice to You.
Company may terminate Your account forthwith without any notice in the event:
- You commit a material breach of these Terms, and if capable of remedy, You fail to remedy the breach within 15 (Fifteen) days of notice from Company in this regard. Non-payment of Fees by due date shall be considered as a material breach of these Terms.
- You have entered into a voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of Your assets, or face any similar action in any jurisdiction.
- You have committed a Fraud or are in breach of any legislation, regulation or direction issued by Government or any regulatory body.
In addition to the above, Company, without incurring any liability on its part, may restrict Your right to send SMS to certain countries or through certain operators, in the event, it is required by any Government rules, guidelines or regulations; Company’s relation with concerned Operator/ Service Provider is terminated/ suspended, a Force Majeure event occurs, or for any reason, which in the reasonable opinion of the company mandates imposition of such restriction.
8. CONSEQUENCES OF TERMINATION
- You shall immediately stop using the Services, the Site and Company’s IPR, including but not limited to any domain name, logo, text, images, banners, etc.
- The termination of these Terms shall not relieve You from any obligations that accrued prior to the date of termination.
9. INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that Company and its licensors, own all legal right, title and interest in the Company’s Website, Domain names, Trade Marks, Copyright, Service, including any intellectual property rights which subsist therein. Unless Company has authorised You in writing, nothing contained in these Terms gives You a right to use any of Company's Trade Names, Trademarks, Logos, Domain Names, and other distinctive brand features.
You warrant and represent that You shall comply with all the applicable laws and regulations including without limitation laws relating to data protection, privacy, advertising, intellectual property, SPAM, etc., while performing Your obligations under The Agreement. You further warrant and represent that You shall use the Service, only in the manner permitted by the Company, and shall not use the Platform that will result in any claims against the Company, including any claims of Intellectual Property Right Infringement.
COMPANY DOES NOT GIVE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES, THEIR ERROR-FREE FUNCTIONING AND CONTINUED AVAILABILITY, AS IT IS DEPENDENT ON EXTERNAL FACTORS AND THIRD PARTY SERVICE PROVIDERS. COMPANY DOES NOT WARRANT THAT ITS HARDWARE OR SOFTWARE (TECHNOLOGY) WILL BE FREE FROM FAULT, ERROR, VIRUSES OR OTHER DEFECTS OR THAT SECURITY METHODS EMPLOYED BY THE COMPANY WILL BE SUFFICIENT REGARDING CORRECTNESS, ACCURACY OR RELIABILITY OF THE SERVICES. COMPANY SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER, IF YOU ARE UNABLE TO SEND ANY SMS DUE TO WRONG/ INVALID TELEPHONE NUMBER OR DUE TO ANY TECHNICAL REASONS.
COMPANY MERELY ACTS AN INDEPENDENT FACILITATOR OF SERVICES AND DOES NOT CONTROL THE CONTENTS OF ANY SMS WHICH YOU OR YOUR CUSTOMERS SEND THROUGH SERVICE, THEREFORE, COMPANY DISCLAIMS ALL ITS LIABILITIES IN RESPECT OF THE CONTENT OF SUCH SMS AND THE VIOLATION OF ANY LEGAL OBLIGATIONS IN RESPECT OF SUCH SMS BY YOU OR YOUR CUSTOMERS.
You agree to defend, indemnify and hold harmless the Company, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorney's fees, arising out of or in relation to, including but not limited to:
- The use of Services by You or a user or any one else, who has been appointed by You to manage the Service.
- The violation of these Terms including violation or breach of any obligation by You or Your Affiliates, Users, Customers/ Subscribers, Agents, employees, Directors, Managers, authorized representatives, etc.
- Breach of any Intellectual Property Rights or Proprietary Rights of any Third Party by You or Your Affiliates, Users, Customers/ Subscribers, Agents, employees, Directors, Managers, authorized representatives, etc.
- Any content or information sent through SMS using the Service.
13. LIMITATION OF LIABILITY
COMPANY PROVIDES THE SERVICES ON AS IS AS AVAILABLE BASIS. Company shall not be liable to You for any indirect, consequential or special damages or economic loss which shall include loss of profits, infringements on data, business, contracts, revenues, commissions, goodwill or anticipated savings even if the same were foreseeable.
Nothing in this section shall exclude or limit the liability for death or personal injury resulting from the negligence of a party.
Notwithstanding anything contained in these Terms, in no event Company shall be liable to You or to any of Your users or to customers (i) in excess of 10% of the amount it has actually received from You, in previous 3 months period, in relation to any or all causes of action; or (ii) for any direct, incidental, punitive, or consequential damages of any kind whatsoever.
"Confidential Information" shall mean all information disclosed orally or in writing by one party (or its parent, subsidiary or affiliated parties) to the other and which is clearly identified by the disclosing party at the time of disclosure as confidential information of the disclosing party, or which would reasonably be deemed to be of a confidential or proprietary nature. Each party shall safeguard Confidential Information utilizing the same degree of care it utilizes in protecting its own confidential information. The obligations of the recipient of Confidential Information set forth in this Section shall not apply to the extent that:
- Such Confidential Information becomes generally available to the public other than as a result of unauthorized disclosure by the recipient or persons to whom the recipient has made the information available;
- Such Confidential Information has been released without restriction by the disclosing party to another person or entity; or
- Such Confidential Information was received by the recipient on a non-confidential basis, prior to receipt from such party, from a third party lawfully possessing and lawfully entitled to disclose such information.
Further, the recipient may disclose Confidential Information pursuant to any judicial or governmental request, requirement or order. The recipient shall, however, take reasonable steps to give the disclosing party sufficient prior notice to contest such request, requirement or order. Confidential Information shall remain the property of the disclosing party, and shall be returned to the disclosing party or destroyed upon request of the disclosing party.
The recipient shall keep the information confidential for a period of one year after the termination of this agreement.
16. FORCE MAJEURE
Neither party shall be liable for any failure of, or delay in, performance hereunder due to causes beyond its reasonable control, including, but not limited to: acts of God, fire, explosion, vandalism, cable cut, storm or other similar catastrophes; non-availability of Company Network or internet; any law, order, regulation, direction, action or request of the government, including state and local governments having jurisdiction over either of the parties, or of any department, agency, commission, court, or other instrumentality of such governments; national emergencies, insurrections, riots or wars; or strikes, lock outs, work stoppages or other labor difficulties. If any event of force majeure continues for a continuous period of 30 (thirty) days, the non-defaulting party may, by written notice to the other party, immediately terminate this Agreement.
You shall not be entitled to assign/ transfer Your rights, liabilities, benefits and obligations under these Terms, without prior written consent of the Company. Any purported assignment or transfer in breach of this provision shall be void.
Company shall be entitled to assign/ transfer its rights, liabilities, benefits and obligations under these Terms, to its associates, partners, group companies, subsidiaries, holding companies and/or any other third party/person/entity etc., as it may require.
18. LAW AND JURISDICTION
These Terms and the services hereunder shall be governed by the laws of India. Any disputes and differences arising under or relating to these Terms shall be resolved by arbitration as per Arbitration and Conciliation Act of 1996 by a single Arbitrator to be appointed by the Company. The venue of Arbitration shall be New Delhi, India. Any award rendered by Arbitrator shall be final and biding on the parties and shall be enforceable in any Court of competent jurisdiction.
Notwithstanding the foregoing, nothing in these Terms shall preclude a Party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for actual monetary damages through the arbitration described in this Section.
- These Terms shall not be amended except by an instrument in writing executed by both the parties.
- The parties are neither authorized to act as an agent, partner or legal representative of the other party nor shall either party have the authority to create any obligation on behalf of, in the name of, or binding upon, the other party.
- This Agreement supersedes and merges all prior agreements, promises, undertakings, statements, representations, warranties, covenants and inducements to the making of this Agreement relied upon by either party herein, whether written or oral, and embodies the parties’ complete and entire agreement with respect to the subject matter hereof.
- Nothing in this Agreement is intended to confer any rights or remedies on any third party.
- If any term or provision of this Agreement be determined to be illegal, unenforceable, or invalid in whole or in part, for any reason, such illegal, unenforceable or invalid provision or part(s) thereof shall be stricken from this Agreement and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement be stricken in accordance with the provisions of this section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible.
- The failure of Company to enforce or insist upon compliance with any of the provisions of these Terms, or the waiver thereof, in any instance, shall not be construed as a general waiver or relinquishment of any provision of these Terms.