TERMS & CONDITIONSFriday, March 22, 2013
1. CHARGES AND PAYMENT TERMS
Whether clause 1.1 or clause 1.2 applies to a customers payments of charges, fees and other sums payable to Acura Solutions under the Support Plan and each Addendum (collectively, Charges) depends upon whether that Customer is required to pay by Revolving Deposit under the Agreement (in which case Clause 1.1 applies) or not (in which case Clause 1.2 applies).
1.1 If the Customer is required to pay by Revolving Deposit, then:
a) Acura Solutions shall be entitled to make deductions from the Revolving Deposit upon the date of invoicing of the Charges;
b) Acura Solutions shall be entitled to invoice the Customer on or by the first week or second week of the month for all Charges payable in respect of the previous month;
c) Customer shall ensure that sufficient funds are contained in the Revolving Deposit at all times to cover the amount of all Charges incurred within any given month;
d) Customer shall ensure that it has transferred sums according to the following schedule:
i. by the 28th of the prior month, the Revolving Deposit must contain sufficient funds to cover the Charges for Services to be performed between the first and fifteenth of the month;
ii. by the 12th of that month the Revolving Deposit must have sufficient funds to cover the charges for the Services to be performed between the sixteenth and the last day of that month;
e) Subject to Clause 1.7 below, in the event of termination of this Agreement, Acura Solutions shall make a deduction from the Revolving Deposit equal to Charges relating to that monthly billing period and transfer the remainder of the Revolving Deposit (after deducting any relevant charges and fees levied by the paying and payee bank/financial institution relating to such transfer) electronically to a bank account to be specified by Customer, such transfer to be effected within the first 5 working days of the month following the effective date of termination; and
f) In the event that Charges are equivalent to or exceed the amount of the Revolving Deposit, then Acura Solutions shall be entitled to suspend provision of the relevant Services until further payment has been received from the Customer in an amount specified by Acura Solutions.
1.2 Unless the Customer pays them by Revolving Deposit, Charges (or
net Charges under Clause 1.5) shall be paid by the Customer by invoice,
in which case:
a) Unless otherwise specified by Acura Solutions, Acura Solutions will issue such invoices to the Customer on a monthly basis;
b) Such sums shall be paid by the Customer within the period specified in the Agreement;
c) For Services paid for in arrears each invoice will specify in aggregate the Services delivered within the relevant month or other period; and
d) For all other Services, which are paid in advance, and the Support Services, Acura Solutions will issue invoices at the beginning of the relevant month or other period.
1.3 All sums paid by the Customer under this Agreement shall be paid by wire transfer either or online payment method to an account designated by Acura Solutions, and the Customer shall bear all charges and fees relating to such transfers (including, without limitation, those levied by the paying and payee bank or other financial institution).
1.4 Where out payments are specified in an Addendum to the Agreement
(Out payments) and are due to Customer, Customer shall
be paid as follows:
a) Acura Solutions will notify Customer monthly in writing of the Out payments due to the Customer, as calculated in accordance with the relevant Addendum, based on reports from Network Operators;
b) Acura Solutions will issue to the Customer a billing invoice for, and make payment to the Customer of, the relevant Out payments amounts (or net Out payments under Clause 1.5), subject to other provisions of this Agreement, on or by the tenth day of the month following the month in which the corresponding Operator payment in respect of which the Out payments is to be made is received in full by Acura Solutions, provided that, for the avoidance of doubt, Out payments shall be payable only in the event that such Operator payment is received by Acura Solutions.
1.5 Acura Solutions shall be entitled to issue to the Customer a
a) Invoice for Charges; and
b) Billing invoice for out payments, which sets off Charges and Out payments against each other; the resulting net Charges or Out payments shall be paid by the Customer or Acura Solutions (as the case may be) in accordance with Clause 1.2 or 1.4.
1.6 Where an Addendum specifies a Minimum Revenue sum, then if the relevant messaging Charges for Transactions payable under that Addendum in respect of any month (the Relevant Monthly Charges) are less than the Minimum Revenue sum, the Customer shall (in addition to the Relevant Monthly Charges) pay to Acura Solutions the difference between those Relevant Monthly Charges and the Minimum Revenue sum. For the avoidance of doubt, fixed Charges (including, without limitation, Rental, Setup and Activation Fees) and other non- messaging charges do not count towards the Relevant Monthly Charges.
1.7 If Acura Solutions owes to the Customer any sums, or holds any sums on its behalf (including, without limitation, any Revolving Deposit), then Acura Solutions shall be entitled to set off against any such sums any amounts owed to Acura Solutions by, or which Acura Solutions is entitled to recover from or credit against, the Customer under or in connection with this Agreement.
1.8 Acura Solutions shall be entitled to change the Charges or Out payments under any Addendum from time to time by email to the Customer. Where any such change is made, Acura Solutions will provide Customer notice in writing by email of the change(s) in question quoting the revised Charges or Out payments and the date when they come into effect. Acura Solutions will endeavour, but does not undertake, to provide such notice at least 5 days prior to such effective date.
1.9 Customer shall only be entitled to contest amounts payable under
this Agreement as follows:
a) In respect of Charges and Out payments for Services invoiced or invoiced by Acura Solutions, Customer shall provide to Acura Solutions a written notice of the disputed amount within 5 working days of the date of the invoice, and the following procedure shall apply:
b) Acura Solutions will provide Customer by email with an itemized Transaction log report of the relevant Transactions;
c) If within 3 (three) working days after the issue of such report by Acura Solutions, Customer demonstrates for any Transaction that it has not been performed (according to the terms of SECTION B of the relevant Addendum), Acura Solutions will correct the relevant item on the invoice or invoice, the sum of all such corrections to be denoted Justified Invoice Reduction; and
d) Acura Solutions will resubmit the corrected invoice or self- invoice, according to the Justified Invoice Reduction, for payment by the Customer or Acura Solutions (as the case may be) in accordance with this Agreement.
1.10 Operator records, as made available to Acura Solutions, shall be conclusive as to the transactions relevant to the calculation of Charges and out payments.
1.11 Transactions to be taken into account for the purpose of Charges under any Addendum shall be the Transactions as recorded or computed by Acura Solutions (and potentially corrected according to the procedure described in Clause 1.9 of the T&C) from Midnight on the 1st day of the relevant period under the Addendum to Midnight on the last day of that period (according to IST time zone).
1.12 Where SMS-related Services are specified in an Addendum, an SMS shall be a message of the standard 160 maximum character length.
1.13 For the avoidance of doubt, where an Addendum contains a table specifying differential Charges or Out payments according to volumes of Transaction, the Charges or Out payments shall be non-marginal. Therefore, in the event that the volumes of relevant Transactions under that Addendum within a billing month (the Relevant Transactions) result in more than one Charge or out payments band being applied, the band for the highest volumes of Relevant Transactions achieved shall apply to all Relevant Transactions under that Addendum only.
1.14 In the event Customer shall fail to pay Acura Solutions any amount due under this Agreement, Customer shall reimburse Acura Solutions for all reasonable costs incurred (including reasonable lawyers fees) in connection with collecting such amounts from the Customer. For the avoidance of doubt, Customer is responsible for payment of the total amounts invoiced by Acura Solutions regardless of whether Customer is paid by its customers.
1.15 In addition, if any Charges or other sums due to Acura Solutions
are not paid on the due date for payment, then Acura Solutions shall
a) To charge interest on the unpaid amount at the rate of three percent per annum above the then-current base rate of National Westminster Bank Plc; and, if such amount remains unpaid for 30 days following the due date, thereafter
b) To recover interest on such amount at the statutory interest rate pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), whether before or after any judgment; and the Customer shall pay the interest immediately on demand.
1.16 All amounts payable under this Agreement are stated exclusive of any tax relating to the sale or supply of Services, including, without limitation, value added tax and sales taxes, and any withholding tax. The Customer will pay all such tax at the rate and in the manner required by law.
1.17 All payments shall be made in the currency stated in relevant Addendum.
2. OBLIGATIONS OF CUSTOMER
2.1 Unless otherwise agreed between the Parties, Customer shall be responsible for providing suitable hardware and communications equipment, and for the provision of all infrastructures necessary to ensure its access to the Acura Solutions Platform. Customer is also responsible, at its own expense, for the provision and the regular monitoring of telecommunication and access infrastructure between the Customer's operations centre and the Acura Solutions Platform.
2.2 Acura Solutions shall be entitled to require the Customer to
provide a forecast, estimating in advance in respect of the Services
traffic to or via the Acura Solutions Platform (a Forecast),
specified by month for six month periods, or such other period as
Acura Solutions may specify, and:
a) Customer will provide to Acura Solutions an updated Forecast from time to time if it is aware of any expected significant changes in relevant traffic; and
b) Any Forecast shall be subject to Acura Solutions written approval, which Acura Solutions shall be entitled to give or withhold (or give subject to specified changes to the Forecast) in its reasonable discretion, and which it will endeavour to provide within seven days of receipt of the Forecast.
c) Acura Solutions shall be entitled to suspend Services if:
i. Where a Forecast has not been provided by Customer and approved by Acura Solutions, volumes of Transactions which are not, in Acura Solutions opinion, reasonable, or which put the Acura Solutions Platform or one or more of the Accessible Mobile Operators infrastructure at risk, are transmitted by means of the Services; or
ii. The volumes of Transactions contained in a Forecast are exceeded.
2.3 Customer shall not initiate burst Transaction traffic, meaning hourly Transaction traffic exceeding 5% of the monthly traffic estimate contained in any Forecast, or Transaction traffic which by its quantity can be reasonably expected to cause interference with telecommunications equipment and/or infrastructure, without providing Acura Solutions with reasonable advance notice of such burst traffic. If any such traffic is anticipated by the Customer, the Parties shall meet and reach an agreement on how, if at all, to deal with that traffic in order to optimize network performance and reduce associated risks.
2.4 Customer shall monitor the Services, and will promptly report any Failures or other faults encountered in the manner specified in the SSLA.
2.5 Customer shall ensure that the Transactions include no reference whatsoever to Acura Solutions or its trademarks.
2.6 Customer undertakes that it will not use or permit a third party (such as one of its customers) to use the Services for any illegal, immoral or improper purpose or in any manner which contravenes the rights of any third party (including, without limitation, any Mobile Subscriber), any laws or requirements of a Regulator or Operator in the appropriate jurisdiction or in any way which is indecent or offensive or in any way that could be considered as Spamming. Customer explicitly confirms that for each Transaction it performs via the Acura Solutions platform, Customer or a relevant third party (such as one of its customers) has the prior consent of the recipient of that Transaction before the Transaction is performed.
2.7 The Customer shall not use or permit a third party (such as one of its customers) to use the Services so as to artificially inflate the volume or duration of Transactions for the direct or indirect benefit of any person or entity (AIT Usage). Without limiting the generality of the foregoing, AIT Usage includes any activity that is not in good faith or a fair and reasonable commercial practice. Upon becoming aware of or suspecting AIT Usage, the Customer shall notify Acura Solutions thereof, and supply full details of such AIT Usage. The Customer acknowledges that Acura Solutions shall be entitled (a) to monitor Transaction data to identify AIT Usage, and (b) to provide details of actual or suspected AIT Usage, whether notified by the Customer or gathered by Acura Solutions, to the relevant Network Operator(s). Acura Solutions shall be entitled to retain, and not to pay to the Customer, any out payments associated with reasonably-suspected AIT Usage.
2.8 Customer will not use any alphanumeric sender ID in connection with a Transaction without prior consent of Acura Solutions. Customer will inform Acura Solutions about content of Transactions and the target group of intended recipients and Acura Solutions will decide, based upon this information and upon market conditions, if an alphanumerical sender ID may be used for the specific Transaction in question.
2.9 If under the Services an MSISDN is used as a sender ID by a Mobile Subscriber, then the Customer shall ensure that the relevant Mobile Subscriber has opted to permit such use (and upon request shall provide evidence thereof to Acura Solutions).
2.10 Customer shall indemnify Acura Solutions against all costs, claims, expenses and liabilities arising out of any claim, action, demand, allegation or proceeding made or brought by any person or entity (including, without limitation, any Regulator or Operator) based on an allegation that any SMS or Transaction pursuant to an Addendum, or Customers use of the Services, infringes (a) this Agreement, (b) any terms directly or indirectly imposed by an Operator, (c) the rights of any third party (including, without limitation, any Mobile Subscriber) or (d) any law or regulation, , including, without limitation, the Data Protection Directive (95/46/EC), the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Commerce Directive (00/31/EC) and the Distance Selling Directive (97/7/EC), and any national implementations thereof, in any jurisdiction.
2.11 Customer will inform Acura Solutions immediately if it has reason to believe that there is likely to be a use of the Service in any manner which would be likely to infringe this Agreement, or be subject to indemnification under Clause 2.10 above.
2.12 Acura Solutions shall be entitled immediately to suspend performance of the Services or terminate this Agreement, at its sole option, without prejudice to any other remedy available to Acura Solutions, in the event that there is any breach of any of Clauses 2.6, 2.7, 2.8 or 2.9 above, or if any matter which is capable of giving rise to indemnification under Clause 2.10 above occurs.
3.1 Acura Solutions shall provide to Customer Services that are intended to meet the SSLA from the date when the Services under an Addendum go Live. The Services become Live when Acura Solutions, having decided that they are productive, notifies the Customer that the Services are Live. Acura Solutions does not warrant that the Services will be fault-free, that they will be available continuously or that all the Accessible Mobile Operators will be reachable at all times.
3.2 Acura Solutions cannot guarantee that the Services will never be faulty but will use its reasonable commercial efforts to correct reported faults for which it is responsible.
3.3 Notwithstanding Clauses 3.1 and 3.2 above, if Acura Solutions shall fail to meet any of the requirements of those Clauses, or any service level or other requirement specified in this Agreement (including, without limitation, any Response Time, Resolution Time or other obligation contained in the SSLA), then Acura Solutions entire liability, and the Customers entire remedy, shall be (a) for Acura Solutions to use reasonable endeavours to correct such failure in future deliveries of the affected Services; and (b) termination of this Agreement if and to the extent provided in the SSLA.
3.4 Except as expressly stated in this Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise), including without limitation any warranties as to merchantability, quality (including any warranties as to latency and throughput) and fitness for a particular purpose or use, are hereby excluded to the fullest extent permitted by law, save in the case of fraud.
3.5 Acura Solutions is not responsible in any way for any mobile telecommunications systems or networks which it does not operate, such as the networks of the Operators. Accordingly, Acura Solutions is not liable for the acts or omissions of other providers of telecommunication services (including, without limitation, the suspension or termination of Acura Solutions connections and/or contracts with any Operator) or for faults in or failures of their apparatus or network, nor in general for any other technical reason attributable to Operator's network or telecommunication service provider.
3.6 Customer acknowledges that Acura Solutions has no control over the information or Transactions which pass through the use of the Services and that Acura Solutions does not examine the use of such information or Transactions or the nature or the source of the information or Transactions. Customer also acknowledges that Acura Solutions is a mere conduit of the information and Transactions as per the European Directive N° 2000/31 CE dated June 8th, 2000. Customer shall be solely liable for the content of Transactions and any other material transmitted by Customer or anyone else (including but not limited to its customers or Mobile Subscribers) using the Services.
3.7 Customer acknowledges that it is responsible for ensuring that:
a) All requests for Transactions or other use of the Services involving a Mobile Subscriber occur on an opted-in basis, consistent with the requirements of law and regulation;
b) It will obtain, and retain, evidence of the Mobile Subscribers request prior to utilizing any of the Services in relation to such Mobile Subscriber;
c) Each such request is proven to originate from the Mobile Subscriber in question; and
d) Evidence of any such request will be made available to Acura Solutions immediately upon demand.
3.8 Acura Solutions is not responsible for communication, miscommunication, charges, overcharges, invoicing or any other issues arising between a Mobile Operator and the Mobile Subscriber, which shall be solely governed by the contract between the Mobile Operator and the Mobile Subscriber, and shall not in any way involve Acura Solutions.
4.1 Acura Solutions shall be liable as expressly provided in this Agreement, but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise.
4.2 Nothing in this Agreement shall exclude or restrict Acura Solutions or the Customers liability for death or personal injury resulting from its negligence
4.3 Subject always to Clause, 4.4 Acura Solutions shall be liable
for direct loss or damage only, whether in contract, tort (including
negligence, breach of statutory duty or other tort) or otherwise and
whether caused by its act or omission or that of its employees, agents
or subcontractors. Acura Solutions aggregate liability during any
successive period of six months, the first of which shall be deemed
to begin on the Effective Date (each a Half-Year) shall
be limited to damages which shall not exceed the greater of:
a) €1,000 (one thousand euro); and
b) The aggregate during such Half-Year of Acura Solutions net revenues directly related to the Charges and Out payments payable during such Half-Year, after deduction of costs levied by and sums payable to third parties (including, without limitation, any Operator) in respect of such Charges and Out payments.
For the avoidance of doubt, and subject to other provisions of this Agreement, the foregoing provisions of this Clause shall not be taken as limiting the amount of any Out payments which Acura Solutions is obligated to pay under this Agreement, where Out payments are so payable.
4.4 Neither party shall be liable to the other or any other person
or entity, whether in contract, tort (including negligence, breach
of statutory duty or other tort) or otherwise
a) For any loss of revenue, business, anticipated savings or profits; or
b) For any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising, whether through non-supply or late supply of Services or other non-performance of this Agreement or otherwise.
4.5 The Customer acknowledges that it is its own responsibilities to take out insurance against risks which exceed the amounts specified in this Clause 4 or are otherwise excluded from this Agreement.
4.6 The provisions of this Clause 4 shall survive the termination or expiry of this Agreement.
Without limiting other provisions of this Agreement, Acura Solutions shall be entitled to suspend provision of any or all of the Services at any time in the event that:
5.1 Acura Solutions is entitled to terminate this Agreement;
5.2 Acura Solutions is obliged or advised to comply with an order, instruction or request of the government, a Regulator, an Operator, court or other competent authority;
5.3 Acura Solutions has cause to believe in its reasonable opinion that the Customer is in breach of any of its obligations under this Agreement;
5.4 suspension is reasonably required for maintenance or upgrade reasons, in which event Acura Solutions will endeavour to give Customer 5 days prior written notice of such suspension, and will endeavour to effect such suspension during off peak hours (0:00-6:00 GMT);
5.5 The services of the relevant Operator(s) are suspended;
5.6 Any payment due to Acura Solutions hereunder is outstanding after the due date for payment.
6. CONFIDENTIAL INFORMATION
6.1 The Parties each (the Confidee) undertake on behalf of themselves and their employees, agents and permitted subcontractors that they will keep confidential and will not use for their own purposes (other than fulfilling their obligations under this Agreement) nor without the prior written consent of the other disclose to any third party any information of a confidential nature relating to the other (the Confidor), including (without limitation) any trade secrets, confidential or proprietary technical information, trading and financial details and any other information of commercial value, which may become known to the Confidee under or in connection with this Agreement (Confidential information). Confidential Information will be designated as such when transmitted; if in writing, the word confidential shall be displayed in a prominent place. In case of oral transmission, Confidential Information will be identified in writing within 30 days of disclosure. This Clause shall not apply to any such information which the Confidee can show is public knowledge or was already known to it at the time of disclosure (without restriction as to disclosure or use) or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the Confidees possession from a third party who was not restricted from disclosing it. If an administrative body or a court under proceedings asks for such information, the Parties shall contact each other in order to limit together possible adverse effects of such disclosure. Both Parties shall return to the Confidor all confidential information of the Confidor that it holds in written or tangible form or on any media on the termination of this Agreement. The terms of this Clause shall survive the expiry or earlier termination of this Agreement.
6.2 The terms and conditions of this Agreement, including, but not limited to, any information relating to the charges or other sums by either party to the other pursuant to this Agreement, shall constitute Confidential Information of Acura Solutions for the purposes of Clause 6.1.
6.3 The Parties acknowledge and agree that, in the event of a breach or threatened breach by any Party of any provision of Clause 6.1, the other Party will have no adequate remedy in money or damages and, accordingly, shall be entitled to seek an injunction against such breach from any court of law accepting jurisdiction.
7. INTELLECTUAL PROPERTY
7.1 Intellectual property rights in all software, information, technology or data whatsoever supplied by either Party under the Agreement shall remain the property of that Party or its licensors. Any intellectual property rights to any developments shall be the property of the developing party
8. GENERAL TERMS AND CONDITIONS
8.1 Force Majeure
Any delay or failure by either party hereto in performance hereunder shall be excused if and only to the extent that such delays or failures are caused by occurrences beyond such party's reasonable control, including acts of God, decrees or restraints of governments, strikes or other labour disturbances, war, sabotage, and any other cause or causes, whether similar or dissimilar to those already specified, which cannot reasonably be controlled by such party; provided that the party seeking to excuse its performance shall promptly notify the other party of the cause therefor, such performance shall be so excused during the inability of the party to perform but for no longer period, and the cause thereof shall be remedied so far as possible with all reasonable dispatch. Notwithstanding the foregoing, either party may terminate this Agreement in writing if such condition continues for a period of sixty (60) days or more.
Notwithstanding the expiry or termination of this Agreement, those provisions of this Agreement which, expressly or according to their context or content are intended to do so, shall survive such expiry or termination and shall continue in full force and effect.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default of breach.
The documents incorporated into the Agreement may be changed or modified as expressly provided in the Agreement; the Agreement may otherwise only be modified by agreement in writing between the parties.
The division of this Agreement into sections and the insertion of headings are for ease of reference only and shall not be construed to affect the interpretation of this Agreement.
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion.
The parties may issue press releases announcing the Service. Each party agrees to obtain the prior written consent of the other, which shall not be unreasonably withheld, before releasing press releases or other forms of promotion that mention the other in regards to this agreement.
8.7 Online Payment
We as a merchant shall be under no liability whatsoever in respect
of any loss or damage arising directly or indirectly out of the decline
of authorization for any Transaction, on Account of the Cardholder
having exceeded the preset limit mutually agreed by us with our acquiring
bank from time to time. We charge convenience fees for using our services.
9. Cancellation & No Refund Policy
9.1 Before agreeing above terms and conditions, 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.
9.2 Company will provide you an option to test a non-refundable pack of 10 credits to test the quality of Service. You may cancel 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 Companys Service.