Definitions
1. In these General Terms, the following definitions shall have the following meaning:
- Agreement: The agreement between Redmessage and the Client, which is entered into by the Client by means of (i) subscribing as a client on the Website and (ii) the commencement of having Redmessage perform Services;
- Client: The natural or legal person who has subscribed as a client on the Website with a unique user name and password;
- Code of Conduct: National and international codes of conduct for short message service and national and international codes of conduct for advertising standards in general and in relation to short message services;
- General Terms: These general terms and conditions;
- MO: Mobile Originated text message, being a message sent from a mobile phone to an information system;
- MT: Mobile Terminated text message, being a message sent to a mobile phone from an information system;
- Premium Text Messages: Text messages, e-mail messages and/or internet messages for which a fee is charged in excess of the regular text message, e-mail message and/or internet message fees, either from the sender or the recipient of such text message, e-mail message and/or internet message;
- Redmessage: Redmessage B.V., a company with limited liability, incorporated under the laws of The Netherlands, having its offices at Kingsfordweg 151, 1043GR Amsterdam, The Netherlands, registered with the Trade Register of the Chamber of Commerce under the number 55472273;
- Services: The service provided by Redmessage, which comprise of the provision to the Client of the ability to send and receive text messages (short message service), e-mail messages and/or message through internet applications to and from recipients;
- Text Message Credit: A credit of the Client, providing the Client the right to submit a certain number of text messages making use of the Services;
- Website: www.redmessage.nl.
Applicability
2. These General Terms apply to any and all Agreements.
3. The general terms and conditions of the Client and/or any other party are herewith explicitly rejected and excluded.
4. Redmessage shall be allowed to amend these General Terms unilaterally. Such amendment shall become effective within fourteen (14) days as of the date on which Redmessage informs the Clients of such amendment. Following any amendment to these General Terms, the Client shall – during a period of fourteen (14) days – be entitled to terminate the Agreement with Redmessage.
Obligations of Redmessage
5. The Services are provided by Redmessage, making use of a software platform which allows the relevant messages to be submitted to other receivers.
6. Client explicitly acknowledges and agrees that Redmessages platform is in connection with platforms of third parties, included but not limited to large telecommunication companies and mobile network operators and the actual submission of a message is dependant on the technical abilities and disabilities of third parties like telecommunication companies and mobile network operators.
7. The Client explicitly acknowledges and agrees that Redmessage shall use its reasonable efforts to submit messages of the Client to their intended destination and to have its platform available for 24 hours a day and 7 days a week.
8. The Client explicitly acknowledges and agrees messages may not be submitted to their intended destination in the event the operator does not allow the submission thereof, in the event the destination is outside of the area of the relevant mobile operator, in the event the destination is switched off, in the event the destination is not or is no longer in use and/or other events in which a technical malfunction prevents the submission.
Obligations of Client
9. The Client warrants to provide Redmessage with its correct name(s) and address and to immediately inform Redmessage of any change in such name(s) and/or address.
10. The unique user name and password of the Client for the access to and use of the Website are strictly confidential and are only intended to be used by and on behalf of the Client.
11. The Client explicitly acknowledges and agrees that the submission of large quantities of messages per day (being over 100,000 messages per day) may influence and limit (mobile) operating systems. Therefore, the Client is obliged to inform Redmessage seven (7) days in advance, in the event it has the intention to send large quantities of messages.
12. The Client warrants that it complies with any and all applicable laws, regulations, rules or Codes of Conduct and other guidelines with regard to the transmission of messages sent by the Client.
13. The Client acknowledges and agrees that only the Client is responsible and can be held liable for the content of messages.
14. The Client explicitly warrants that it does not:
- Send messages in large quantities with an identical content (spamming);
- In any way breach intellectual property rights of third parties;
- Mislead or attempt to mislead third parties;
- In any way use the intellectual property, texts, logo’s and/or name of Redmessage;
- In any way offer any products and/or services which are not produced or delivered by the Client without the prior written consult of the producer or provider of such products and/or services;
15. The Client expressly indemnifies and holds Redmessage harmless from any claims of third parties in connection with a breach of intellectual property rights of such third parties.
16. All text messages send making use of the Services shall be done from a cell phone number, a short code or a name that belongs to the Client or which the Client is authorized to use. Redmessage shall in no event submit text messages without a cell phone number, a short code or a name of the sender.
Regular text messages
17. Redmessage provides the Client the possibility to use the Services and pay for the actually send text messages. Actually send messages shall be registered on the Client’s account, based on transmission log files and identity. The price for each message send making use of the Services are equal to the prices printed at www.redmessage.nl.
18. Redmessage shall invoice the Client monthly for any and all text messages send making use of the Services. Payment of such invoices shall be done within fourteen (14) days as of the date of invoice, without any withholding, set off or deduction.
19. Redmessage provides the Client the possibility to purchase a Text Message Credit. The Text Message Credits which are offered for purchase are printed at www.redmessage.nl.
20. Text Message Credits shall only be provided to Clients after pre payment thereof.
21. Any remaining Text Message Credit at the date of termination of the Agreement shall be forfeited. In no event shall Redmessage be held to pay out the cash equivalent of such remaining Text Message Credit.
22. Any and all prices for send text messages and/or Text Message Credits shall in all events be prices excluding VAT.
23. The Client acknowledges and agrees all prices printed at www.redmessage.nl may vary from time to time and are partially based on the pricing of third parties, such as (mobile) operators.
Premium text message services and Paid Email or Internet message services
24. In the event of Premium Text Messages services, Redmessage shall – together with all relevant third parties such as telecom operators – use its reasonable efforts to collect the amounts payable by the end receivers of such text messages.
25. Redmessage shall pay to the Client an amount for each Premium Text Message delivered to and paid by the end receiver, which amount shall be equal to the amount printed at www.redmessage.nl.
26. Payments to the Client shall be done monthly, provided that the amount to be paid out in respect of the then relevant month(s) (added with any unpaid amounts of previous months) exceeds a minimum of EUR 25.00 for Clients within the IBAN bank zone and a minimum of EUR 50.00 for Clients outside of the IBAN bank zone. Any and all banking costs in relation to a payment to a Client outside of the IBAN bank zone shall be for the account of the Client.
27. In the event that a claim of a Client has been outstanding for twenty four (24) months, without being paid out, pursuant to the fact the amount to be paid out to such Client has not exceeded the minimum amount as referred to in clause 26, such claim of the Client shall be forfeited.
28. The Client acknowledges and agrees all prices printed at www.redmessage.nl may vary from time to time and are partially based on the pricing of third parties, such as (mobile) operators.
29. In the event Redmessage is held to may any repayment as a consequence of a charge back or other recollection of payments by the end receiver of a premium text message, the Client shall be obliged to fully reimburse Redmessage for any such repayment by Redmessage and any costs made by Redmessage in connection therewith. In such event, Redmessage shall be entitled to withhold (and set off) an amount equal to the reimbursement obligation of the Client from the payments made or to be made to the Client.
30. Redmessage explicitly reserves the right to withhold payments to the Client of fees in respect of premium text messages in the event Client has breached its obligations towards Redmessage under this Agreement and/or these T&C and/or the Client has breached any applicable law, regulation, rule or code of conduct and/or other guideline with regard to the transmission of text messages or Redmessage has reasons to suspect any such breach.
31. Any complaints with regard to any (debit or credit) invoice of Redmessage need to be submitted within fourteen (14) days as of the date of invoice to Redmessage. Client shall be deemed to have waived any and all complaints which have not been submitted within aforementioned period of fourteen (14) days.
Term and termination
32. Unless explicitly agreed otherwise in writing, the Agreement is entered into for an indefinite period of time.
33. Either party has the right to terminate the Agreement, taking into account a notice period of at least one (1) month.
34. Either party may terminate the Agreement with immediate effect in the even the other party is liquidated, dissolved, declared bankrupt or has been granted a moratorium of payments.
Liability
35. Unless in the event of gross negligence or wilful misconduct, Redmessage shall not be liable under any provision of the Agreement for any indirect damages, including loss of profits, revenue, data, business or use, incurred by the Client or any third party, whether in an action in contract or tort, or based on a warranty, including but not limited to damages or losses arising out of, connected with, or resulting from the sale, delivery, installation, support, maintenance or operation of the software, even if Redmessage has been advised of the possibility of such damages.
36. In no event shall Redmessage be liable to Client for more than the total amount paid by Client under the Agreement during the six (6) month period immediately prior to the occurrence of the event pursuant to which Redmessage became liable towards Client, provided that such limitation shall not apply in the event of gross negligence or wilful misconduct.
37. Redmessage shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by force majeure, which includes for the purpose of the Agreement fires, strikes, embargoes, explosion, earthquakes, floods, wars, labour disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.
Intellectual Property
38. Client shall not be entitled to any intellectual property rights with regard to the Services. Any and all intellectual property rights with regard to the Services are and shall remain the intellectual property of Redmessage.
Miscellaneous
39. If any provision of the Agreement or these GT&C is declared or found to be illegal, unenforceable or void, then each provision not so affected shall remain in full force and effect. Furthermore, any such illegal, invalid or unenforceable provision shall be replaced or be deemed to be replaced by a provision that is considered to be valid and enforceable and which interpretation shall be as close as possible to the intent of the invalid, illegal or unenforceable provision.
40. The Agreement is exclusively governed by and shall be exclusively construed in accordance with the laws of The Netherlands.
41. Any disputes arising out of or in connection with the Agreement shall be exclusively settled by the competent court of Amsterdam, The Netherlands.
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