Terms & conditions

  1. DEFINITIONS

    • 1.1. «Operator» – an operator of the network of the cellular radio telephone communication with appropriate licenses and permits in accordance with legislation of the Country where Operator has a registered office.
    • 1.2. «Subscriber» – a private customer or a legal entity, which uses communication services of the Operator
    • 1.3. «Service» – informative or entertaining services of the CONTRACTOR, which are agreed upon with the CUSTOMER. The Operator’s Subscribers receive access to the Service by means of the CUSTOMER Complex.
    • 1.4. «Complex» – a set of software, servers and other technical components of the equipment, which is responsible for functional presentation of Services to the Subscriber.
    • 1.5. «System» – the program interface of the CUSTOMER, which contains tools for accounting and control of the work of the PARTIES on granting and promotion of Services.
    • 1.6. «Identificator» – an internal number in the CUSTOMER’s SYSTEM, allocated to the CONTRACTOR, and used by IT for sending SMS-messages and for WAP-requests in order to receive access to the CONTRACTOR’s Services.
    • 1.7. «WAP-request» – an HTTP-request from the Subscriber’s mobile telephone, sent by the Operator’s network to the CONTRACTOR’s Service in order to get Content using Identificator.
    • 1.8. «The Unique name» (or "Prefix") – a keyword or a code, sequence of figures and/or letters, sent by the Subscriber to the Short code for initiation of provision of the concrete Service and used for identification of the EXECUTIVE PARTY.
    • 1.9. «Message» (or «SMS») – a short text message with the Unique name in the beginning, sent by the Subscriber to a Short code in order to use the Service.
    • 1.10. «Accounting period» – one calendar month, unless otherwise is agreed upon in the Additional agreements to the present Agreement.
    • 1.11. «Report» – an Inquiry of the CUSTOMER`s System, which contains the information concerning quantity of Messages with the Unique names of the CONTRACTOR, delivered to the Short code, as well as quantity of WAP-requests from the Subscribers on Identificators, paid by the Subscribers, for the Accounting period.
    • 1.12. «SMS traffic» – the total quantity of all Messages, sent from subscribers of the Operator to the Short code for the Accounting period.
    • 1.13. WAP traffic – the total amount of all incoming WAP-requests from the Subscribers on short codes, paid by the Subscribers, for the Accounting period, expressed in pieces.
    • 1.14. «Initiation of SMS/WAP-traffic» – actions of the CONTRACTOR directed to the organization of SMS/WAP traffic within the limits of the present Agreement, carried out by the CONTRACTOR by means of the CUSTOMER System
    • 1.15. «Service area» – any city, region, area, country or any other economic-geographical unit where the CONTRACTOR provides Services.
    • 1.16. «The Share of the CUSTOMER» – the sum of money received by the CUSTOMER when granting the Service to Subscribers of Operators, involved by means of Short codes which have been given to the CONTRACTOR, minus the share of the Operator. Thus the CONTRACTOR agrees that the CUSTOMER’S share may change depending on change of the Operator’s share.
    • 1.17. «The CONTRACTOR’s remuneration» – the sum of money received by the CONTRACTOR from the Share of the CUSTOMER. The CONTRACTOR’s remuneration is automatically calculated by the System per each SMS/each 1 minute of the Subscribers’ calls for Short codes.
    • 1.18. «Unpaid orders» or "Fraud" – services, which haven’t been paid by Subscribers to the Operator, for which monetary funds are to be deducted by the Operator from the CUSTOMER’s share and, accordingly, to be deducted from the CONTRACTOR’s remuneration in the current or following Accointing periods.
    • 1.19. «Spam» – unsolicited SMS-messages, which are not initiated by SMS requests from the Operator’s Subscribers and any other information which is not connected with Service under Short numbers, belonging to the CUSTOMER. The category "Spam" includes, but is not limited to, Messages, which correspond to the following criteria:
    • 1.19.1. The Messages which have not been ordered preliminary by Subscribers of the Operator’s network, or confirmed by the Subscriber of any type (SMS, MMS, EMAIL, ICQ, etc.) regardless of their content, with identical text and of mass kind;
    • 1.19.2. The Messages delivered to Subscribers, encouraging them to send a text message to one or more Short codes with Prefixes allocated to the CONTRACTOR, containing threats and/or unreliable information about the Service, which resulted to the claims of Subscribers to the CUSTOMER and/or to the Operator, as a result of the actions set forth above.
    • 1.20. «Content» – information (the contents of Services), provided by the CONTRACTOR by means of SMS, MMS, WEB, WAP requests of the Subscriber by System means.
    • 1.21. «Outgoing traffic» (or «MT Traffic»)Messages sent by the CONTRACTOR to the Subscribers. The short message may contain 160 alphabetic/digital Latin symbols maximum (including blanks). The message, exceeding 160 symbols, is considered to be long (or compound).
    • 1.22. «Payment for the Outgoing traffic» – the total cost of all outgoing messages from the System to mobile terminals of Subscribers. This payment is to be calculated by the System for each outgoing SMS, and in case this Message is considered to be compound (long), the payment is to be calculated for each part of such message. If the Operator charges payment for the Outgoing traffic from the System to Subscribers’ terminals, the CONTRACTOR’s remuneration shall be accordingly reduced for the total cost of this Outgoing traffic.
    • 1.23. «Subscription fee» – monthly fee for usage of Short codes (IVR). The amount of Subscription fee is set forth in the System. The amount of Subscription fee shall be monthly deducted by the CUSTOMER from the CONTRACTOR’s remuneration for the Accounting period.
  2. SUBJECT MATTER

    • 2.1. The CONTRACTOR provides the CUSTOMER with the service on initiation of SMS/WAP traffic (further – "Service") for the short codes from the Subscribers within Operator’s network, by organizing access to the CONTRACTOR’s Services.
    • 2.2. The CUSTOMER pays for the services of the CONTRACTOR according to the terms and conditions of the present Agreement.
  3. LEGAL OBLIGATIONS OF THE PARTIES

    • 3.1. The CONTRACTOR is obliged:
    • 3.1.1 To begin rendering of Services within 30 (thirty) working days from the effective date of the present Agreement.
    • 3.1.2 To provide informational content of Services, to improve Services and to change them on the CUSTOMER’s request.
    • 3.1.3 To observe ethical, moral and law principles when creating the Service.
    • 3.1.4 To carry out actions on initiation of SMS/WAP traffic from Subscribers on the CUSTOMER’s short codes by attracting Subscribers to the CONTRACTOR Services. To inform Subscribers on its own behalf about the content and possibilities of Services.
    • 3.1.5 To provide access to Services for the Subscribers within Operator’s network, in strict conformity with Subscribers` requests to Service.
    • 3.1.6 To Provide technical support to Operators Subscribers, to whom the Services are provided
    • 3.1.7 To promote Services and distribute the associated materials within the Service area under the plan co-coordinated with the CUSTOMER in advance, using only those Unique names which the CUSTOMER has issued to the CONTRACTOR through System.
    • 3.1.8 To provide Subscribers with full and trustworthy information about the order procedure and the cost of Services, as well as with the content of the last. To inform Subscribers concerning the Short codes, necessary actions to receive the Service, Operators, which can provide the Service to Subscribers, and other obligatory information according to the legislation of the Service area and requirements of the Operators.
    • 3.1.9 To receive the CUSTOMER’s approval of the final form and samples of the promo materials focused on Services promotion before their publication.
    • 3.1.10 To ensure accordance of the CONTRACTOR’s Services content with norms of the current legislation of the Service area.
    • 3.1.11 Not to use allocated Short codes and Unique names for sending Spam.
    • 3.1.12 Not to use possibility of technological access to the System and network of the Operator for any purposes.
    • 3.1.13 To take all possible measures to prevent the occurrence of Fraud and in case if Fraud notification is received from the CUSTOMER, to stop rendering Services to the Subscribers specified in the given notification.
    • 3.1.14 Not to use trade marks and service marks of the Operator and the CUSTOMER for advertising goods, services or content Services (Content) without the CUSTOMER’s consent.
    • 3.1.15 To take measures to eliminate violations after receiving a written or oral request (claims, complaints) to the CUSTOMER from the Subscriber or other interested individuals, as well as competent state authorities, after receiving a claim to the CUSTOMER concerning content of Services, access granting of poor-quality, or concerning service access denial, inappropriate service advertising.
    • 3.1.16 To provide help to define the source of the Spam after receiving a written or oral request (claim, complaint) from the Subscriber due to the fact that they received Messages which had not been ordered (Spam).
    • 3.1.17 To reply to the CUSTOMER requests (in written form and by e-mail), concerning sub items 3.1.2, 3.1.8, 3.1.13, 3.1.15, 3.1.16 of the present Agreement within 1 (one) working day after reception of corresponding inquiry from the CUSTOMER.
    • 3.2. The CUSTOMER undertakes:
    • 3.2.1 To provide information-technical System management 24 hours a day (except technical breaks for Complex maintenance, having informed the CONTRACTOR at least 24 hours before the procedure) and on a full scale.
    • 3.2.2 To Carry out all necessary actions, aimed at proper functioning of Services and System as a whole.
    • 3.2.3 To provide the CONTRACTOR with an access to the System
    • 3.2.4 To make payments for the CONTRACTOR’s services according to the System data on SMS/WAP traffic initiated by the CONTRACTOR after reception of payment for this SMS/WAP traffic from Operators.
    • 3.2.5 To notify the CONTRACTOR about the change of the Share of the CUSTOMER as a result of change of a share of the Operator as soon as the CUSTOMER finds out about such a change, but not later than 3 (three) working days from the moment of entering the specified changes into System.
    • 3.2.6 To provide technical maintenance of the Complex. Technical breaks in the work of the Complex should not exceed 5 hours per week. Complex technical maintenance is made by the CUSTOMER at night (time zone GMT+2).
    • 3.2.7 To Confirm the final form and samples of graphic and text production of the CONTRACTOR, aimed at promotion of Services, within 5 (five) working days after reception of the specified materials from the CONTRACTOR.
  4. SERVICE COST AND SETTLEMENTS OF ACCOUNTS

    • 4.1. The amount of the CONTRACTOR’s remuneration is determined by the System in the form of a "report" generated in an e-form. Access to the report of the System is provided by the program interface. All the calculations under the present Agreement shall be in US dollars.
    • 4.2. If the Central Bank of the country which provides Service to Subscribers changes the exchange rate of local currency to the settlement currency in accordance with the present Agreement for more than N% within the Accounting period, CUSTOMER reserves the right to revise an amount of CONTRACTOR`s remuneration unilaterally
    • 4.3. Not later than 10 (ten) working days after each Accounting period the CUSTOMER sends the Report to the CONTRACTOR by e-mail. Report format is set in accordance with the program interface.
      The CUSTOMER forwards this Report to the CONTRACTOR by email and/or by fax. Within 5(five) working days after the reception of the Report by email and/or fax, the CONTRACTOR is obliged to conform the Report, to accept it through the program interface of the System, or within term specified in the present item to submit to the CUSTOMER the substantiated objections in written form. If within specified term the CONTRACTOR does not conform this Report or submit to the CUSTOMER their substantiated objections, this Report shall be considered as accepted.
    • 4.4. On the basis of the Report accepted by the parties, the System generates the Acceptance certificate in accordance with the program interface. The CONTRACTOR directs to the CUSTOMER an invoice on time not later than 5 (five) calendar days from the date of the Report acceptance. The invoice and the Acceptance certificate of the rendered services are issued on the last day of the Accounting period.
    • 4.5. Within 10 (ten) working days after reception of the originals signed by the CONTRACTOR: the Report conformed by the parties, the invoice and the Acceptance certificate of the rendered services, the CUSTOMER signs the Certificate and pays for services rendered by the CONTRACTOR for the Accounting period. The CUSTOMER forwards the signed Certificate to the post address of the CONTRACTOR.
    • 4.6. In case the discrepancy in the Report data of the CUSTOMER and the CONTRACTOR for the Accounting period is less than 5% (Five percent), then calculations are made on the ground of the CUSTOMER’S data. In case the discrepancy in the data of the CUSTOMER and the CONTRACTOR for the Accounting period is more than 5 % (Five percent), then the PARTIES conform the detailed protocols of Services provision in accordance with the procedure specified in item 4.6.
    • 4.7. In case the CONTRACTOR does not agree with the Report data, provided by the CUSTOMER, in accordance with item 4.5 of the present Agreement, the CONTRACTOR has the right to initiate verification within 5 (five) working days after reception of the Customer’s Report, and the CUSTOMER undertakes to take part in the verification process. The verification process occurs as follows: claims of the CONTRACTOR concerning discrepancies in the number of Subscribers’ requests to be paid by the CUSTOMER for the Accounting period, are to be sent in written form within the term specified in the present item, with the statement of the date, time, the Prefix (es), texts of Messages. The Parties agree upon the modified quantity of Messages and the sums be paid on each line of such data.
    • 4.8. In case the CUSTOMER fails to receive money for provided Services from the Operators, the CUSTOMER is obliged to immediately notify the CONTRACTOR about it and to agree upon new term and procedure of payment for the CONTRACTOR’S services.
    • 4.9. The date of the payment of invoice is considered to be the date of writing off of amount from the bank account of the CUSTOMER.
    • 4.10. Bank-correspondent fees are to be charged to the CONTRACTOR’s account.
  5. DURATION OF THE AGREEMENT

    • 5.1. The present Agreement shall come into force on the moment of registration in the System.
    • 5.2. Either party has a right to terminate this Agreement at any moment by written notification of the other party not later than 30 (thirty) calendar days before the date of account termination.
    • 5.3. In case of improper performance of the present Agreement by one Party, the other Party is entitled to make a claim. If the claim is not examined within 15 (fifteen) working days of the date it was made, the Party that made the claim is entitled to terminate account and this Agreement unilaterally.
    • 5.4. This Agreement is considered to be automatically renewed for each further calendar year, if no Party terminates this Agreement in accordance with items 5.2 and 5.3. or by mutual consent of the Parties.
    • 5.5. Upon expiration of the Agreement or its early termination, the Agreement is valid and effective until the Parties perform all its obligations that appeared before the termination.
  6. CONFIDENTIALITY AND DATA PROTECTION

    • 6.1. The Parties are obliged to keep in strict confidence all the terms and conditions of the present Agreement, including any information they received in conjunction with the cooperation under this Agreement without written consent of the other Party.
    • 6.2. Accepting Party guarantees safety of confidential documentation, information, knowledge and experience received from the providing Party. The receiving Party shall do its best in order to prevent the whole or partial disclosure of the documentation and information or to prevent any third party from its usage without written consent of the providing Party, except cases agreed upon under the present Agreement.
    • 6.3. The handed over information will be disclosed only to those employees of the receiving Party, who are closely connected with the performance of the present Agreement in volume, agreed upon by the Parties.
    • 6.4. The validity of the foregoing obligations shall survive any termination of this Agreement in minimum 5 (five) years.
  7. THE RESPONSIBILITY OF THE PARTIES

    • 7.1. The Parties shall bear responsibility for nonperformance of the terms and conditions of the Agreement under legislation of the UAE.
    • 7.2. The PARTY bears responsibility only for the direct loss caused to other PARTY. The lost benefit is not the subject to any compensation
    • 7.3. When using telecommunication channels owned by organizations, which provide communication services, the Parties do not bear responsibility for any delays in the process of e-documents exchange that have occurred through the fault of these organizations.
    • 7.4. The CONTRACTOR bears responsibility for completeness and reliability of the information given to it in all information materials used by it for promotion of corresponding Services.
    • 7.5. If as result of granting by the CONTRACTOR unreliable information about Service according to item 7.3. the damage has been caused to the CUSTOMER, the CONTRACTOR undertakes to indemnify to the CUSTOMER the whole such damage provided that the CUSTOMER provides the CONTRACTOR with the corresponding documents testifying the damage caused to the CUSTOMER.
    • 7.6. In case the CONTRACTOR publishes the information contrary to the conditions of sub item 3.1.8, 3.1.9 of the present Agreements, the CONTRACTOR pays to the CUSTOMER the penalty in amount of 10 % (ten percent) of the sum of the CONTRACTOR’s remuneration for the Reporting period, during which such breach was made, for each case of such breach.
    • 7.7. Should the items 3.1.10, 3.1.11 of the present Agreement be breached the CONTRACTOR shall pay to the CUSTOMER a penalty in amount of 100 % (one hundred percent) of the sum of the CONTRACTOR’s remuneration for the Accounting period, during which such breach took place.
    • 7.8. The CUSTOMER has the right to detain the sum of loss in accordance with items 7.4.-7.6. of sum of the CONTRACTOR’s remuneration. If the sum of the remuneration is not enough, the CONTRACTOR shall credit the sum of penalty to the bank account noticed by the CUSTOMER within 3 (three) working days after presentation of written claim.
    • 7.9. All sanctions provided in item 7.4.-7.6. of the present Agreement shall be applied only if the CUSTOMER applies to the CUSTOMER with written claim, notifying the particular evidence of the breach of the terms and conditions of the present Agreement.
    • 7.10. The CONTRACTOR guarantees that it has all necessary property, authors and adjacent rights to maintain the Services under the present Agreement.
    • 7.11. The CUSTOMER guarantees that it has all necessary powers both the exclusive author's and adjacent rights on the System software.
    • 7.12. The CONTRACTOR guarantees that under the pretext of Services given within the limits of the present Agreement, will not be the services which are not concerning to directory and entertaining, that are rendered (namely: medical services, insurance, services of communication statements, gambling and amounts), the information which distribution is forbidden by the current legislation of the Service area will not be given.
    • 7.13. Neither Party is responsible for partial or full nonperformance of the obligations under the present Agreement in case the Operator rejects its obligations to pay to the CUSTOMER. In this case the CUSTOMER provides the CONTRECTOR with documentary evidence and the Parties shall correct the Report data.
    • 7.14. The CONTRACTOR guarantees that the Services and Content, provided under the present Agreement, have been created, licensed or received by the CONTRACTOR by legal means are its ownership, and the CONTRACTOR has the absolute right to store, distribute and hand over to the third parties for further sell of all information.
    • 7.15. Should the Operator and/or third party have any claims in respect of breach of any patent right and /or copyright, other property and/or personal non-property rights, the CONTRACTOR shall settle these claims or requirements on its own and for its own account, and speak in defendant capacity referring to these claims, compensate to the right holders all possible proved loss. The CUSTOMER shall not be held liable concerning mentioned claims and requirements.
    • 7.16. The PARTIES agree that all property and any other rights to the objects of intellectual property used in course of execution of the present Agreement, belonging to each of the PARTIES at the moment of signing of the present Agreement, remain with the corresponding PARTY.
  8. FORCE MAJEURE

    • 8.1. The Parties shall be released from liability for partial or full failure to fulfill their obligations under this Agreement if it resulted from the following circumstances beyond their control, that the Parties were unable to foresee or prevent. The Parties are to notify each other of these circumstances in writing.
    • 8.2. Force majeure circumstances cover war, riots, earthquake, flood, fire and other acts of God, governmental regulations; governmental bodies decree, laws and other regulations, passed after signing the Agreement, and that prevent the performance of the present Agreement. These circumstances are to be confirmed by appropriate competent authorities.
    • 8.3. Untimely Notification made later than 10 (ten) working days of the moment of the beginning or the end of such above mentioned circumstances deprives the Party opportunity to cite them in the future.
    • 8.4. In case of non-fulfillment of obligations for over 1 (one) month, both Parties may terminate the Agreement, and neither Party shall claim any damages that may arise due to termination hereof. Upon termination of the Agreement the Parties make the final corresponding reciprocal payments within 10 (ten) working days after termination.
  9. MISCELENEOUS

    • 9.1. All Appendices to the present Agreement are considered as its integral part.
    • 9.2. All amendments and modifications to the present Agreement shall be made in a form of the Additional agreements, signed by the authorized representatives of the Parties in particular order.
    • 9.3. If either provision of the present Agreement is invalid or impossible to be performed, the other provisions hereof shall stay in force.
    • 9.4. After signature of the present Agreement all previous agreements, negotiations and cooperation both in oral and written form concerning the subject matter of the Agreement are considered invalid.
    • 9.5. The Parties consider e-documents, issued by the Systems, as equivalent paper documents. The Parties acknowledge the legal validity of such documents, and agree not to challenge the legality and validity of the legal actions based upon such documents, on the sole ground that they are drawn up in an e-form.
    • 9.6. Exchange of paper documents between the parties is made on request of one of the Parties. Preparation and Delivery of the documents is done at the expense of the Party which initiated this request.
    • 9.7. The Parties are unable to assign their rights and obligations under the Agreement (wholly or partially) to any third party. However the Parties may engage third parties for particular works and/or services under the present Agreement, and in this case the Parties are liable for all actions of third parties.
    • 9.8. The Parties shall not later than 3 (three) working days notify the other Party of changes of its postal address, bank requisites, telephone numbers, fax and other contact information.
    • 9.9. This Agreement shall be governed by and construed in accordance with the current laws of the UAE.