Terms & Conditions

Terms and Conditions (“Terms” or “Agreement”) represent a binding agreement between Foxcom SIA and You. It is important that You understand Your responsibilities and the limitations to SMSgic Services (“Our Services”) which You choose to use.
Please use Our Services responsibly. By using website or any of Our Services, You agree to Terms and Conditions of SMSgic. Take note that these Terms change from time to time. If You have used Our Services before, You cannot assume that the Terms are still the same. You should review them on a regular basis as the same will be published online with the date of the last change noted at the top.

1. Introduction

1.1. You wish to use Our Services (meaning Services as provided under these Terms).

1.2. SMSgic means Foxcom SIA, a company registered in Latvia and whose registered office is situated at Lielirbes iela 17A - 62, Rīga, Latvija, LV-1046 (hereinafter „SMSgic“; „We“; „Our“; „Us“).

1.3. You wish to use the Services and We are willing to make the Services available to You subject to and in accordance with these Terms

2. Binding Effect

2.1. You are entering into a binding agreement. If You accept these Terms of use of Our Service on behalf of Your employer or another person, You confirm that You have the consent of Your employer or that person to act on their behalf. THESE TERMS APPLY TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON SMSgic’s WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.

2.2. You are not eligible to accept these Terms or use Our Services if You are not of legal age to form a binding contract with Us or if You are barred by law to use Our Services.

2.3. In the event there is an agreement in place between You and Foxcom SIA for any or all Services used, such agreement shall have precedence of application before these Terms.

3. The Service

The Service enables a Customer to use Our platform for SMS marketing as set out as part of Your online registration.

SMSgic reserves the right to change or modify the Service Description at any time and in its sole discretion.

4. Availability and Interruption of the Service

4.1. We will make the Services available to You using reasonable skill and care. You do however acknowledge and agree that the availability of the Services, Your ability to access and/or use the may depend upon factors beyond Our reasonable control, including (but not limited to):

• Factors affecting the operation of the Services from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions; or
• Factors preventing end-users from receiving Services such as, by way of example, the terms and conditions of an end-user’s service provider.

4.2. We cannot therefore guarantee:

• That the Services will be available to You at all times or free from faults or interruptions;
• The receipt by any intended recipient of any SMS sent using the Services (as applicable).

4.3. We will not be in any way liable for any failure to make the Services available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control. We provide all Services “as is” and “as available”, and We hereby do not warrant, represent or guarantee, whether expressly or by implication, that any Services are free of errors or interruptions, always available, fit for any purpose, secure or do not infringe any third-party rights.

4.4. We may, at Our sole discretion, alter or improve the Services We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Services.

4.5. It may be necessary from time to time for Us to suspend the Services that We provide to You for routine or emergency maintenance and/or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.

• We may at Our sole discretion suspend Your access to the Services and/or cease to allow any operations to be conducted by You at any time. We are entitled to terminate these Terms for any reason, in which case We will give You appropriate notice as soon as is reasonably possible.
• Should Your account utilized in the provision of SMSgic Service be inactive through a period of 6 (six) months it remains in SMSgic’s discretion to suspend SMSgic Services to You. You can reactivate the account with a request to SMSgic sent 3 (three) working days prior to the required reactivation.

5. Account, Passwords and Security

5.1. In order to provide Our Services, We may require certain information. You must ensure that the information is complete and accurate. We may suspend or terminate any service if You give information that is not complete and accurate. You warrant that all information You provide to Us is complete and accurate and You indemnify Foxcom SIA against any liability that may arise as a result of Your failure to provide complete and accurate information. You must immediately notify Us if any of Your information changes.

5.2. We will provide You with a user name or customer ID or ask You to choose authentication credentials for each account. We may change, cancel or suspend Your account, which You will be notified about.

5.3. You:

• must keep Your username, customer ID, password, ApiKey, login token or any other secret authentication credential confidential;
• must not circumvent, or attempt to circumvent, Our user authentication systems;
• must inform Us immediately of any unauthorized use of Your account or any other breach of security, including suspected doubts of such scenarios;
• are entirely responsible for all payments and any activities that occur on Your account;
• are liable for any damage, loss or costs that we or any third party may sustain as a result of any of your actions, or any actiony use of Your authentication credentials, account name or account information by a third party or as a result of Your violation of this section.
• are responsible for authorized and unauthorized use of Your account in case any of the security recommendations (point 5.4) are not or had not been implemented from Your behalf at the moment of questionable activity on Your account (i.e. in scenarios where, due to Your inability to implement maximum security measures available at your disposal, a potential unauthorized activity had taken place). This includes (list not exhaustive): service login, subsequent data insight, sending messages traffic, payments. Responsibility for these activities includes assuming liability for any damage, loss or costs that Foxcom SIA or any third party may sustain as a result of these activities;
• must cooperate with Us during the resolution of potential unauthorized use of Your account, regardless of its cause and source of initial reporting.

5.4. You are mandated to follow Security recommendations (depending on the channels / Services used). For any questions, as well as in case of security compromise of your authentication credentials (username & password, ApiKey), You should contact SMSgic immediately via support@smsgic.com

6. Confidentiality and Data Protection

6.1. You will at all times keep confidential all information acquired as a consequence of using Our Services, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by Your professional advisors for the performance of their professional Services. When using Our Services, you shall comply with all laws and regulations applicable to the use of the Services and with Our Terms or any other terms as agreed between us.

6.2. Please refer to Our Privacy Notice for details on personal data processing with respect to Our Services.

6.3. With respect to the processing of personal data of your end-users that you provide to us through our Services, You are the controller and SMSgic is the processor. You guarantee that you have obtained all required and valid consents under the applicable data protection laws and regulations (such as the EU General Data Protection Regulation) as required for the processing of personal data by SMSgic for the performance of our Services. SMSgic will process that personal data only upon Your instructions and in accordance with the data processing agreement.

7. Support Services

7.1. Unless We agree otherwise in writing, We will provide on-line technical support via email in respect of the Service available to You at the following e-mail address: support@smsgic.com

8. Customer Charges and Payment

8.1. You agree to pay all Charges due to SMSgic in respect of making the Service available to You and Your access to and use of the Service (“Customer Charges”) by the prepayment method and in accordance with the terms as set hereof.

8.2. You agree to pre-purchase credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding credit to Your account. Each final operation that You conduct using the Service will therefore reduce the value of the credits available to You by the corresponding amount.

8.3. Any change in prices that might occur for one or more destinations shall be communicated to You via email and/or noted on our website.

8.4. You shall be solely responsible, by seeking adequate final operation credit allocation(s) and checking Your remaining available credit level on Our portal, for ensuring that You have enough credits to meet Your requirements and We shall not be in any way responsible or liable in the event that You have insufficient credits to meet Your requirements, and/or have exceeded Your credit allocation(s), for any period.

8.5. For the avoidance of doubt, a Charge will be incurred for every final operation conducted by You regardless of whether it is successfully delivered.

8.6. If You do not pay any Customer Charges in accordance with the applicable payment terms, We reserve the right to, in Our sole discretion, suspend Your access to the Service and/or cease to allow any final operations to be conducted by You until further payment is received by Us which fully covers any unpaid Charges.

8.7. You are responsible for the payment of all bank and finance charges. Please ensure that the amount received on Our bank account, after deductions, corresponds to the full amount you owe Us.

8.8. You will not be able to receive any refund for the payment made (“No refund, exchange only”). The latter shall not prevent any refund to be made according to the applicable customer protection laws.

9. Marketing

Parties hereby grant each other the right to use and display each other’s name and logo („Trademarks“) for promotional means on the respective websites or other promotional material, however, restricted solely in connection with the Services provided under this Agreement. Any usage under this clause shall be done according to the proprietor Party’s guidelines as they may be provided from time to time. Neither Party shall use the other Party’s Trademarks in any manner that will disparage, harm or otherwise damage the other Party’s goodwill in its Trademarks. The Party using the Trademarks shall not, at any time, misuse the same or present itself as an affiliate or other legal agent of the Party whose Trademarks are being used. Any rights and linked usage of Trademarks granted under this Section shall be immediately discontinued in the event this Agreement is terminated.

10. Rules of Use

10.1. You warrant that You will not:

• Use the Services or permit the Services to be used to send Communications Letters to any end-user for marketing purposes without that end-user’s explicit request for, or prior consent, to receiving them. If you are sending any Communications Letter for commercial purposes to any of Your end-users, You must abide by the telephone marketing practices of the end-users’ jurisdiction, including but not limited to, obtaining prior express written consent from those end-users, and give all end-users the right to opt out of receiving any further Communication Letters sent by You for commercial purposes (and You shall promptly process any end-user’s selection to opt out);
• Use the Services or permit the Services to be used to convey Communications Letters to any end-user, with a frequency and in numbers which are excessive in Our reasonable opinion;
• Use the Services or permit the Services to be used for any improper, fraudulent, immoral or unlawful purpose;
• Use the Services or permit the Services to be used for the transmission of any material which is of a defamatory, offensive, illegal, abusive, obscene or menacing character or nature;
• Use the Services or permit the Services to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
• Use the Services or permit the Services to be used in a manner that may injure or damage any person or property or cause the quality of the Services to be impaired.

10.2. You will at all times during the duration of the Agreement:

• Send only Communications Letters that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offense in view of the generally prevailing standards of decency and propriety from time to time;
• Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Services;
• Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
• Not act in any manner likely to bring Us, the Service or any Network Operator into disrepute.

10.3. In the event SMSgic has reason to believe CLIENT content being transmitted is unauthorized, prohibited, in any way illegal or otherwise not allowed, SMSgic will take any steps or measures necessary to safeguard both SMSgic’s as well as the Network Operator’s security. Furthermore, SMSgic shall not be liable or obligated to deliver such messages to the End-User(s) nor shall the CLIENT be entitled to seek refunds, chargebacks or other forms of compensation in relation to the messages from this section.

10.4. You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Services that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete.

10.5. You will not state or imply any approval by Us of any particular Communications Letter that You send using the Services or refer to Us in any way without Our prior written approval.

10.6. Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.

10.7. We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request any Communications Letters.

10.8. You warrant that You are the sole owner or licensor of all rights in Your End-User Data or You have obtained all necessary rights, licenses and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement.

10.9. CLIENT represents and warrants to SMSgic that it shall, when using the SMSgic’s Services in order to reach End-Users in South Africa, comply with the Wireless Application Service Providers Association’s (WASPA) Code of Conduct in force from time to time (https://waspa.org.za/code-of-conduct/). The Code of Conduct is primarily aimed at consumer protection with specific references, which primarily include but are not limited to, consumer consent and permission to direct marketing, prohibited times for direct marketing and consumers’rights and mechanisms to opt-out from any future direct marketing communications.

11. Disclaimers, Limitations of Liability and Indemnification

11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMSGIC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER SERVICES OBTAINED THROUGH THE SITE; (iii) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR VERIFIED PROFILE; AND (iv) ANY OTHER MATTER RELATING TO THE WEBSITE AND/OR THE SERVICES OFFERED ON THE WEBSITE.

11.2. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SMSGIC ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11.3. You agree to indemnify and hold SMSgic, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against SMSgic by any third party due to, arising out of or in connection with your use of the website and/or the Services.

11.4. We will not be in any way liable for the content of any Communication Letters sent or transmitted using the Service and the full responsibility for their content shall rest on you. You must observe all relevant legislation and regulations applicable in your jurisdiction and in the jurisdiction of all persons with whom you communicate directly when using the Service. By using the Service you also agree to be bound by the Rules of Use.

11.5. Notwithstanding the foregoing, You acknowledge you will be solely responsible for any legal liability arising out of or relating to the Content and Services (whether transmitted on your own or on any Third Party’s behalf).

11.6. Subject to any express provision to the contrary in these Terms, We will not in any circumstances be liable to You in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable.

11.7. Each party acknowledges that neither You, nor We, have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Terms and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.

11.8. We shall at all times in respect of the subject matter of these Terms comply with all applicable laws, regulations and rules having equivalent effect.

11.9. You shall be responsible for explaining and answering to any complaints that We receive from any relevant regulatory body resulting from your use of the Service. We will forward any complaints to you as soon as it is reasonably possible. You must follow the applicable complaint procedures and respond to each complaint within the timeframes specified by the relevant regulatory body and must forward a copy of your response to Us immediately. You will be liable for any fines and/or penalties imposed by any regulatory body against You or Us or any of our associated companies, due to Your contravention of these Terms.

12. Term and Termination

12.1. Either Party can terminate this agreement at any time by notice to the other Party with or without cause.

12.2. Either party may also terminate this Agreement with immediate effect by notice to the other party if:

• The other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading;
• The other party commits a material breach of the Agreement and (where such breach is capable of remedy) fails to remedy the breach within 14 days of a written notice from the party not in breach requiring its remedy; or
• Any license required for Us to operate the Services is revoked, terminated or modified or, in the case of new license requirements being imposed, the applicable license: Is not granted to Us; or Is granted to Us but in such a way as to prevent Us from continuing to make the Services available or a Network Operator from enabling Us to make the Services available.

12.3. We may terminate the Agreement immediately upon notice in the event that any relevant legislation or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Services available.

12.4. Termination of the Agreement for any reason does not affect any rights that have accrued to either party under the Agreement up to the date of its termination and those terms and conditions of the Agreement that are by their nature capable of surviving termination will continue in full force and effect following such termination.

12.5. On termination of the Agreement:

• You will immediately cease to use the Services; and
• All amounts then owed to Us, under or in connection with the Agreement, will become immediately due and payable.
• You will forfeit any unused credit on your account, except for payments received by us within seven (7) days prior to termination.
• All licenses and rights granted under these Terms will terminate immediately.

13. Force Majeure

Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and/or computer Services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion.

14. Assignment

Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed), provided that We shall be entitled without Your prior written consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any affiliated company.

15. Intellectual Property

15.1. All content, trademarks and data on our website, including software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to Us, and as such , are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to You in these Terms, all other intellectual property rights on this website are expressly reserved.

15.2. We may grant You an individual, personal, non-exclusive and non-transferable license (“the License”) to use our proprietary software or application service, in object code form only, and only in accordance with the applicable Service Specific terms and other documentation, if any, and only in conjunction with the relevant Services. You may not reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of our software; modify, translate, or create derivative works based on the software or application; copy, rent, lease, distribute, assign, or otherwise transfer rights to the software or application; or remove any proprietary notices or labels with regard to our Services. We retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights in it . You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the Services we provide you.

15.3. These Licenses terminate when Our contract with you ends and you must destroy and stop using all of our software and applications in your possession. The software is provided and applications are offered “as is” and subject to the service warranty disclaimers and limitations of liability found elsewhere in these Terms. It is your responsibility to test the Services before entering into this contract.

15.4. Content from Our website may not be used or exploited for any commercial and non-private purposes without Our prior written consent.

16. Severability

If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.

17. Governing Law & Dispute Resolution

These Terms shall be governed by and construed in accordance with laws of the England and Wales and the parties hereto submit to the non-exclusive jurisdiction of the London courts for the purpose of enforcing any claim arising hereunder