In case where the resolution is expected to take longer than indicated in the above schedule, or where such resolution is not within the control of Fortytwo, the User shall be informed accordingly.

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Office hours are Monday to Friday 09:00 – 17:00 CE(S)T excluding public holidays in Malta.

 

In cases where more information is required from the User to identify the issue, the resolution time shall increase accordingly.

Commercial and other queries shall be responded to within two (2) Working Days.

 

9.   SERVICE DOWNTIME

Fortytwo shall advise the User of any scheduled downtime with three (3) days advance notice via e-mail, where reasonably possible.

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10.   COVERAGE AND PRICE LIST

10.1 The Service shall be provided to the User using the Coverage List. The Coverage List, together with the Charges, shall be subject to change from time to time. Such changes may be communicated to the User via email provided. Nevertheless, the User shall be solely responsible to review the updated lists from Fortytwo’s Client Control Panel on a regular basis.

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10.2 The Coverage List shall be available to the User on the Control Panel upon setting up an account. Due to the fluid nature of the Service, the Coverage List, is subject to price fluctuations (increase or decrease) at any point in time, and the User acknowledges that price changes apply immediately. The latest Coverage List is available on a web interface Control Panel (the “Client Control Panel”) immediately to the Client upon signing up. The Client is solely responsible to check about updated prices and Coverage List prior to using the Service

 

10.3 Pricing for the Service is calculated and charged based on the submission of messages and is not contingent upon successful delivery or receipt by the intended Recipient. Unless otherwise informed in writing by FortyTwo, the User’s obligation to pay for the Service is triggered at the moment of transmission instruction, regardless of the final status of the message.

 

10.4 Coverage List of each Service shall be available to the User separately. The Coverage List or changes to it, may be communicated to the User via email.

 

10.5 Any conditions related to a route or coverage may be further listed in the Coverage List and reviewing these conditions falls within the purview of the User. Should the User require Messages to be sent via a particular route, it should give its instructions to proceed with such transmission, while taking into account any necessary restrictions or modifications required for the Service to be provided effectively. In cases where the chosen route does not specify a communication channel, Fortytwo retains the discretion to utilize channel deemed suitable for message transmission.

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11.   APPLICATION OF THE TERMS OF USE

When using the Website and logging into the Client Control Panel, the User accepts to adhere to these Terms of Use. Registration and use of the Website and/or any Services offered by Fortytwo, shall automatically bind the User to these Terms of Use. Once the User activates the Service, Fortytwo shall consider such action as an acceptance by the User to all of the Terms of Use. Should the User not agree to all, or part of the Terms of Use set herein, or cannot comply with these Terms of Use, the User should immediately terminate the registration process or stop using the Service.

 

12.   PAYMENT AND BILLING

12.1.    The method of payment shall be by bank/electronic transfer, credit card, debit card or online payment gateway or any other method communicated in writing by Fortytwo in advance of any usage.

 

12.2        All User accounts and "Top Up" balances are maintained and denominated in the Euro (€) currency. While Fortytwo may, at its sole discretion, allow payments to be made in other currencies, whether fiat currencies or virtual currencies, any such payments will be converted and credited to the user’s account in the Euro currency. The conversion will be calculated based on the prevailing exchange rate at the time of the transaction, which may include a standard processing margin or administrative fee.12.3     The Charges are exclusive of Value Added Tax (VAT), which shall be payable by the User in addition to the Charges, if such are applicable.

 

12.4 Any User subscribing to this Service within the European Union jurisdiction, shall be in possession of a valid VAT identification number and shall provide Fortytwo with a valid VAT identification number upon registration for the Service and notify Fortytwo of any changes related to it as soon as reasonably possible. For the avoidance of doubt, the User shall be solely responsible to ascertain the validity and correct use of the provided VAT identification number. Fortytwo is unable to provide Services to any User without a VAT number valid for intra-community trade within Europe. This Clause is not applicable to any User outside of the European Union, countries not subject to VAT or Fortytwo’s jurisdiction.

 

12.4.1 In the event that Fortytwo becomes liable to pay VAT and/or any related penalties due to the User’s breach of Clause 12.4, the User shall reimburse such VAT and/or related penalties to Fortytwo.

 

12.5     The User shall pay all Charges as calculated using the details recorded by Fortytwo’s billing system. For ease of reference, credits are allocated against monetary value. However, the User shall be responsible for payment of any usage of the Service notwithstanding anything to the contrary, thus not relying on the value of credits allocated. To avoid any Service disruption due to insufficient credits on the User account or credit limit, Fortytwo reserves the right, at its own discretion, to temporarily increase these limits.

 

12.5.1 Fortytwo reserves to adjust any invoice or credit deduction following internal investigation to ensure correct usage and billing.

 

12.5.2 In the event that the User disputes any Charges, it shall do so in good faith and on reasonable grounds and it shall notify Fortytwo by identifying clearly the disputed part and the reasons why it is challenged.

 

12.5.3 The User must send the written dispute notice to FortyTwo at finance@fortytwo.com within 10 days of deduction of pre-paid credits and such dispute notice shall include at least the following: invoice number, invoice period, total disputed amount, and reason of a dispute. A pending billing dispute shall not exempt the Customer from timely payment of any undisputed amounts owed.

 

12.5.4 Where the Client challenges the Charges, in a timely manner in accordance with section 11.4.3of these Terms of Use, the following shall apply:

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(a) both Parties shall enter into discussions regarding resolution of the dispute and shall share such available billing data and accounting information as is relevant, in good faith, so as to attempt to resolve the dispute in a timely manner;

 

(b) in any event, if the total disputed amount is less than three percent (3%) or amount of fifty Euro (€50), whichever is higher, of the total charged by Fortytwo to the User in the period which is under consideration, the User shall not be entitled to any refund;

 

(c) Fortytwo shall not be obliged to consider any of the Client’s notices of billing discrepancies that are received more than ten (10) days following the issue of deduction of pre-paid credits in question. 

 

12.6 No Refunds: No refunds are made, except for refunds covering the value of credits not yet expired, in the event that, the Service becomes unavailable (terminated or blocked), due to Fortytwo’s fault. Provided that, a refund shall only be made, in cases where, Fortytwo fails to find a remedy for such fault, within thirty (30) days from when such fault has occurred.

 

12.7 Credit Balance Expiry: The User shall make use of credits deposited into the account, within twelve (12) months from the date of deposit. In the event that, the User fails to use all the credits within the stipulated time, then such credits shall be reclaimed by Fortytwo. Fortytwo may, at its own discretion, extend this period of time on a case-by-case basis. . Fortytwo’s decision on the matter shall be final and binding.

 

13.   TERMINATION

13.1 The User may terminate the Service at any time by sending Fortytwo an advance written notice of thirty (30) days. The notice period starts to run on the day the email is sent. The notice should be sent via an e-mail to support@fortytwo.com with a subject line ‘Terminate’ and the User’s username on the Control Panel, should be incorporated in the body of the e-mail.

 

13.2 Fortytwo reserves the right, to terminate the Service for any reason with immediate effect.

 

14.   ACCOUNT SUSPENSION OR DEACTIVATION

14.1 In the event that, the User does not use the Service for a period exceeding twelve (12) consecutive months, then Fortytwo reserves the right to deactivate the User account without any prior notice.

 

14.2 Fortytwo reserves the right to suspend or archive any account which has been set-up by the User, which

a) is set as a trial account;

b) account is not being used for a as stipulated in section 14.1 above period;

c) User is breaching these terms of Use; or

d) such deactivation is deemed to be in Fortytwo’s best interest.

 

14.3 The User may request the re-activation of the account and such reactivation shall only take place at the discretion of Fortytwo. In the event that the account has been suspended or deactivated, the User shall only be refunded of any available credit at the discretion of Fortytwo.

 

15.   BREACH

In the event that the User breaches any of the provisions of the Terms of Use herein, then, without any prejudice to any legal rights, Fortytwo reserves the right to suspend or terminate the provision of the Service to the User or suspend, disable or terminate the User’s account with immediate effect, claim damages or take any necessary legal action against the User for, but not limited to, the specific performance of an act.

 

16.   LIABILITY

Fortytwo, or its employees or representatives, excludes any liability in relation to the Services provided,  for any loss, damages or claims whatsoever, made by the User or any third party, including any direct, indirect, consequential or incidental damages, or lost profits, business interruption, misuse of the Service, failure to meet any duty of care or warranty, arising out of or in connection with these Terms of Use or applicable law, whether or not any representative of Fortytwo has been made aware of the possibility of such loss, damages, claims or costs. In the event that, this limit of liability shall be found for any reason to be unlawful or invalid by a court of competent jurisdiction, Fortytwo’s entire liability as referred to in these Terms of Use shall not exceed five thousand Euro (€5,000) for any one incident or series of related incidents during the term of these Terms of Use.

 

17.   INDEMNITY

17.1 Notwithstanding any indemnity given to Fortytwo by the User under these Terms of Use, the User agrees that Fortytwo shall not be liable for any damages, whether direct or indirect, consequential or incidental, howsoever in connection with any breach by the User of these Terms of Use associated with the User account.

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17.2 The User shall indemnify and hold Fortytwo and its representatives  harmless against all claims, demands, actions, costs, expenses, including but not limited to the defence of such claim, , losses and damages, suffered or incurred by Fortytwo,  in relation to any action or inaction, including but not limited to any breach by the User of these Terms of Use. The User undertakes to defend and hold Fortytwo harmless, without any limitation, in the event of a claim against Fortytwo from a Recipient, a supervisory authority or any other third party.

 

17.3 In the event that messages transmitted by the Client involve fraudulent or unlawful activity, including but not limited to smishing, AIT, MITDT, or other illicit practices known in the industry, the Client shall be held liable for all resulting damages to Fortytwo. The Client agrees to indemnify Fortytwo for any losses, fines, penalties, or legal fees incurred as a result of such activities. All such costs must be reimbursed to Fortytwo within thirty (30) days of written notice and provision of evidence of said activity

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18.   FORCE MAJEURE

18.1 Fortytwo shall not be liable for any delay in performance or non-performance of its obligations under these Terms of Use caused by circumstances beyond Fortytwo’s reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection, civil disorder or military operations, national or local emergency, pandemic or epidemic, acts or omission of government or other competent authority or regulatory authority, acts or omissions of communication network operators or providers, fire, flood, lightning or other weather or exceptional severity, subsidence, explosion or industrial disputes.

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18.2 If Fortytwo is affected by circumstances beyond its reasonable control, Fortytwo shall notify the User as soon as reasonably possible and shall use reasonable endeavours to overcome the effects.

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19.   LAW AND JURISDICTION

These Terms of Use and all rights and obligations of the Parties hereto shall be governed and construed according to the laws of the Republic of Malta. Except for actions seeking injunctive relief, any dispute, controversy or claim arising out of or in connection with these Terms of Use, or the breach, termination or invalidity thereof, shall primarily be resolved with good faith negotiations between the Parties, and if such negotiation fails, then it shall be referred to and finally resolved and submitted to the exclusive jurisdiction of the Courts of the Republic of Malta.

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20.   WEBSITE, CHANGES AND AMENDMENTS

Fortytwo expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in these Terms of Use or any information on the Website and/or the Control Panel without prior notice. The User has the responsibility to keep itself updated with any information on the Website, the Control Panel or these Terms of Use. Any material changes to the Terms of Use shall be notified to the User via provided email address. The continued use of the Service by the User after such modifications have taken place, shall constitute acknowledgement of the modified Terms of Use and agreement to be bound by the modified Terms of Use.

 

21.   DATA PROTECTION AND PRIVACY

21.1 The provision of the Service under these Terms of Use implies that Fortytwo may process Personal Data collected and controlled by the User or another entity, which instructions the User follows.  

 

21.2 The Processor is hereby appointed by the User to process such Personal Data on behalf of the User as is necessary to provide the Service, and as may subsequently be agreed by the Parties in writing. Personal Data transferred to Fortytwo shall not contain any sensitive data and only data that is necessary for the provision of the Services shall be provided to Fortytwo, as described in these Terms of Use or any other communication with between the Parties, including e-mail.

 

21.3 The Parties acknowledge that Fortytwo is subject to the applicable data protection legislation of the Republic of Malta and the European Union. For the avoidance of doubt, the User shall be solely responsible to ensure that its instructions and/or compliance with the applicable data protection legislation of the European Union do not contradict any other applicable legislation. The User shall indemnify and keep Fortytwo indemnified against all or any claims, demands, costs and expenses incurred by Fortytwo in such regard.

 

21.4 The Processor hereby warrants and undertakes in respect of all Personal Data that it may process on behalf of the User throughout the duration of these Terms of Use that at all times:

 

(a) shall process the Personal Data only on documented instructions from the User, unless otherwise required by the applicable law. These Terms of Use and any other communication, including e-mail, shall be deemed to be such instructions. To the extent, that Fortytwo cannot comply with a change to the User’s instructions without incurring material additional costs, Fortytwo shall (i) immediately inform the User, giving full details of the matter; and (ii) cease all processing of the affected data until revised instructions are received or the commercial relationship between the Parties is reviewed in the light of such events;

 

(b) shall ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

 

(c) shall take all security measures required pursuant to the applicable law taking into consideration the state of art, cost of the implementation, nature and scope of the processing as well as risks and severity for the rights and freedom of data subjects;

 

(d) taking into account the nature of the processing, shall assist the User by appropriate technical and organisational measures, insofar as this is required and upon fee applicable at the time of the request, for the fulfilment of the User's obligation to respond to requests for exercising the Data Subject's rights in accordance with the applicable law;

 

(e) shall, upon a fee applicable at the time of request, assist the User in ensuring compliance with the obligations pursuant to the applicable law taking into account the nature of processing and the information available to Fortytwo;

 

(f)   at the choice of the User, deletes or returns all the Personal Data to the User after the end of the provision of services relating to processing, and deletes existing copies unless applicable law envisages further retention period of the Personal Data on Fortytwo side;

 

(g) shall make available to the User all information necessary to demonstrate compliance with the obligations laid down in the applicable law and allow for and contribute to audits, including inspections, conducted by the User or another auditor mandated by the Controller on a reasonable basis as required, by providing an adequate advance written notice. The Parties shall ensure that in case of an audit, sensitive business data shall be maintained confidential and not be disclosed to the User;

 

(h)  shall notify the User without undue delay after becoming aware of a Personal Data breach and the notification shall at least (i) describe the nature of the Personal Data breach including where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of the Personal Data records concerned; (ii) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained; (iii) describe the likely consequences of the personal data breach; (iv) describe the measures taken or proposed to be taken by the User or Processor, as appropriate, to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects;

 

(i)  shall comply with all its obligations in relation to processing of the Personal Data in accordance with the applicable law. Fortytwo has no grounds to doubt the User's compliance, hence will follow the User's instructions regarding the legality of processing activities. However, should Fortytwo believe any instruction as being unlawful, it will promptly notify the User. Notwithstanding, the ultimate responsibility for determining the legality of such instructions remains with the User.

 

21.5 The Processor shall keep the Personal Data logically separate to data processed on behalf of any other third party and shall not process, apply or use the Personal Data for any purpose other than as required to provide the Services, and if necessary, to comply with its statutory obligations or to protect its legitimate interests.

 

21.6 The Processor shall undertake appropriate technical and organisational measures to safeguard the security of the Services provided to the User (including but not limited to measures designed to ensure the secrecy of communications and prevent unlawful surveillance or interception of communications and gaining unauthorised access to any computer or system and thus guaranteeing the security of the communications), which in no event be less than the minimum security requirements, as required by the applicable law.

 

21.7 The User shall indemnify Fortytwo in respect of all liabilities, costs and expenses suffered or incurred by Fortytwo in its capacity as processor of the Personal Data arising from any breach of data protection legislation in the terms of this Clause 21 or any negligent act or omission by the User in the exercise of the rights granted to it under the applicable law provided that:

 

(a) Fortytwo immediately notifies the User of any actions, proceedings claims or demands brought or made against Fortytwo concerning any alleged breaches and Fortytwo shall not compound settle or admit those proceedings without the consent of the User except by order of a court of competent jurisdiction; and

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(b)  The User shall be entitled, at its own cost, to defend or settle any proceedings; and

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(c)  Fortytwo shall not have acted of its own accord and independently of the instructions given to it by the User in its role as data processor in accordance with the provisions of these Terms of Use;

 

(d) Fortytwo is not in breach of any obligations in relation to the applicable law and that has not acted outside or contrary to lawful instructions of the User.

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21.8 The User shall be solely responsible to ensure that all Recipients has received all necessary information regarding the Client’s processing of Personal Data and to ensure that all necessary consents, or other obligations, have been duly carried out, if required for Fortytwo to process such Personal Data.

 

21.9 The User is hereby giving its prior written general authorisation to Fortytwo to allow that data processing services entrusted to Fortytwo could be subcontracted to any trusted sub-processor, as well from sub-processors to sub-contractors, in conformity with the clauses stipulated herein and the applicable data protection law and the adequate level or other appropriate safeguards shall be guaranteed. In the event that Fortytwo needs to engage any sub-processor outside EEA territory, for the adequate provision of the Service, Fortytwo shall take reasonable steps to ensure that sub-processors shall have adequate security measures and sufficient guarantees in place.

 

21.10 The User reserves the right to withdraw the right of Fortytwo to subcontract the Services to the sub-processor and that the sub-processor may engage sub-contractors and that these latter may subsequently engage other subsequent sub-processors, including the ones outside the EEA territory. As stipulated in clause 21.9 above, any such sub-processing shall be done in accordance with applicable law and the provisions of these Terms of Use. The User understands that due to nature of telecommunications services, all or any sub-processors and sub-contractors cannot be communicated to the User. In the event of any substantial material change or replacement of the current sub-processor/s of Fortytwo, Fortytwo shall update the documentation and make it available through the Website, and/or Control Panel. User is required to review such section regularly, and is able to object to any relevant changes. In the event that the User exercises its right to object or withdraw its consent to subcontracting the processing of the Personal Data, Fortytwo cannot guarantee the provision of the Service. In the event that standard contractual clauses (SCC) issued by the European Union, as amended from time to time, are required to be entered into as per applicable law, to ensure adequate level of data protection, such shall be deemed annexed to these Terms of Use, as available to the User on the Website, or the Control Panel.

 

21.11 Fortytwo shall keep the relevant personal data for a certain period after the specific Service has been provided, in line with any legislation or business needs. After such period, Fortytwo shall permanently delete or anonymize the relevant Personal Data, unless any other legislation or legitimate justification at the time applicable to it prevails. In any event, after operational aspect of the Service has been concluded, Fortytwo will not, in the normal course of business, process the transferred Personal Data. Further details are available to the User on the Website, or the Control Panel.

 

21.12    Except as necessary in the normal course of the Service provision, Fortytwo shall not monitor, edit or disclose any personal information about the User or the User’s account, phonebook or its recipient lists, Message details and/or any device numbers, unless Fortytwo has a bona fide belief that such action is necessary to conform to legal requirements, comply with the legal process, or to protect and defend the rights, property or legally protectable interest of Fortytwo. If required for the purposes mentioned herein, or in order to respond to services or technical issues, or otherwise communicate with Fortytwo regarding any updates, upgrades, notices or other information regarding the Service, Fortytwo may disclose such User’s information to relevant third party, provided that the terms of these Terms of use shall be complied with, and such relevant third party shall be bound by confidentiality duties.

 

21.13        The User agrees that Fortytwo may make use of a User’s profile information and use cases for non-personal statistics purposes.

 

22.   CONFIDENTIAL INFORMATION

22.1 The User and Fortytwo agree, during the duration of these Terms of Use and for two (2) years thereafter, to keep all Confidential Information secret and confidential, to use it exclusively for the purpose of these Terms of Use and not to disclose the Confidential Information to any person other than to those employees, sub-contractors, consultants, agents, professional advisors or affiliates with a need-to-know-how and to the extent only that such disclosure is necessary for the purpose of these Terms of Use and in such circumstances, the User and Fortytwo shall ensure that the person receiving such information is under a duty to keep such Confidential Information confidential.

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22.2 Fortytwo further reserves the right to disclose any information to its service providers, other third parties related to the Services or authorities, provided that confidentiality obligations shall be imposed on such third parties. Such information shall be disclosed only where required to protect Fortytwo’s legitimate interest or other reasonable justification was established.

 

22.3 Notwithstanding the restriction set forth above, the receiving Party’s use and disclosure of Confidential Information shall not apply to any information which the receiving Party can prove that such Confidential Information:

 

(i) Is already known to the receiving Party, having been disclosed to such Party by a third party, without such third party having an obligation of confidentiality to the disclosing Party;

 

(ii)Is or becomes publicly known through no wrongful act of the receiving Party or its authorised personnel;

 

(iii)Is independently developed by the receiving Party without reference to any Confidential Information disclosed under these Terms of Use;

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(iv)Is approved for release (and only to the extent as so approved) by the disclosing Party;

 

(v)Is disclosed pursuant to the lawful requirement of a court or governmental agency, partnership, joint venture, or other similar relationship, having jurisdiction to request such Confidential Information to be disclosed.

 

22.4 In the event that Confidential Information includes any personal data or trade secret as defined in the applicable law, such confidentiality duties shall apply notwithstanding any termination or expiry of these Terms of Use, until the data is categorised as such according to the applicable law.

 

23.   INTELLECTUAL PROPERTY RIGHTS (IPR)

23.1The User is hereby granted an individual, personal, non-sublicensable, non-exclusive and non-transferable right to use Fortytwo’s Service pursuant to the terms and conditions set forth in these Terms of Use.

 

23.2 The User is prohibited, directly or indirectly, to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Fortytwo’s systems or enable any third party to do so.

 

23.3       The Fortytwo brand names, their respective logos and other trademarks belonging to Fortytwo are the exclusive Intellectual Property of Fortytwo and the User cannot use or display such Intellectual Property in any way without the prior written consent of Fortytwo.

 

23.4         For the avoidance of doubt, any third-party name, logo and other trademark belongs to such other third party and the User shall have no

right to use such Intellectual Property of third parties without having first obtained the written consent of such third party and Fortytwo.

 

23.5 The User hereby grants Fortytwo and its service providers a non-exclusive, worldwide, irrevocable license to use, reproduce, adapt, publish, translate and distribute the Messages in any and all transmission channel, as required for the Service provision. You agree that this license includes the right for the Company to provide, promote, and improve the Services and to make it available to any third party, including any messaging suppliers, messaging platforms or network operators. 

 

23.6 The User agrees to grant Fortytwo a non-exclusive, royalty free licence to use the User’s trademarks for advertising and sales purposes in relation to Fortytwo’s Services. 

 

23.7     All IPR of the Parties shall vest in, and ownership shall remain with the Parties, as appropriate. Either Party acknowledges that it shall have no licence, right, title or interest in or to any IPR of the other Party, except as expressly set out in these Terms of Use.

 

23.8 The User acknowledges and agrees that, in the event that Fortytwo reasonably believes that any copyright or other Intellectual Property is being infringed, Fortytwo may at its sole discretion prevent the User from accessing the Website, the Control Panel and/or the Service, close the User account and charge a termination fee in order to cover the administration costs.

 

24.   SEVERABILITY

If any of the provisions of these Terms of Use are held to be illegal, invalid or unenforceable, whether in whole or in part, the enforceability of the remainder provisions of these Terms of Use shall not be affected.

 

25.   GENERAL PROVISIONS

25.1         Any waiver, concession or extra time Fortytwo may allow to the User, are limited to the specific circumstances in which it was given. Such waiver shall not affect Fortytwo’s rights under these Terms of Use in any other way.

 

25.2         The User may not assign, subcontract, transfer, novate or howsoever deal with any of its rights or obligations under these Terms of Use, unless prior approval is obtained from Fortytwo.

 

25.3         The User agrees that these Terms of Use, together with any available documentation under the User account, shall constitute the complete agreement between Fortytwo and the User, for the provision of the Service, only in relation to the User account created upon agreement to these Terms of Use. Fortytwo reserves the right to modify these Terms of Use at any time by giving the User a prior written notification of seven (7) days, by means of e-mail, of any modifications made to the Terms of Use. The modified Terms of Use shall enter into force within seven (7) days from when the e-mail notification was deemed to be sent. Unless the User notifies Fortytwo in writing, within seven (7) days from the receipt of the aforementioned e-mail, that the User does not accept the modified Terms of Use and wants to terminate the Service, the User shall be deemed to have accepted the new Terms of Use. For the avoidance of doubt, Fortytwo shall not be liable for non-receipt of the e-mail notification by the User, as a result of an incorrect or non-updated provision of the User’s e-mail address. While Fortytwo reserves the right to modify these Terms of Use at any time, the Terms of Use set herein may not be modified by the User.

 

25.4 The User hereby agrees to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through Fortytwo website. Furthermore, the User hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under the applicable mandatory law.

 

25.5 The Parties confirm that all provisions contained herein are adequate in relation to the Services and that the risk is reasonably allocated, including but not limited to the exclusion of liability and warranties and unilateral change of the terms of business, from Fortytwo’s side.

 

25.6 The Parties acknowledge and understand that any day-to-day business operations and other instructions may be discussed and approved by the account managers or other personnel via email or other communication channels, and each Party need to ensure that such personnel has obtained relevant approvals to instruct the other Party. The Parties hereby agree that such instruction or consent from account manager or any other Party’s representative, shall be accepted as true and binding.

 

25.7 Fortytwo may from time to time use the information provided to contact the User by means of a message, e-mail, post, call or any other similar way of communication to inform the User about Fortytwo’s similar products and services. The User shall have the right to object to such right, or subsequently opt-out from receiving such communication from Fortytwo by sending an e-mail to unsubscribe@fortytwo.com, at any time. The User’s username should be incorporated in the body of the e-mail. Nevertheless, Fortytwo shall provide the User, with every communication, an option to unsubscribe from receiving any further communication.

 

Annex 1 – Service Description: Messaging Gateway

The Messaging Gateway Service enables the User to send Messages to all types of GSM mobile phones via the online platform or via an API (HTTP, REST or SMPP). The Service can be used for promotional, service or informational purposes and Messages can be delivered to subscribers worldwide.

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The Message can be sent, network permitting, with an alphanumeric sender ID (maximum 11 characters) or a numeric sender ID (maximum 15 digits).

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Each Message can contain up to 160 characters (Unicode 70 characters). Messages longer than 160 characters can be sent into multi part (concatenated).

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Concatenated Messages will be charged as per below:

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GSM encoding Standard (Latin Text):

• Up to 160 characters = 1 Message

• Up to 306 characters = 2 Messages

• Up to 459 characters = 3 Messages

• Up to 612 characters = 4 Messages

• Up to 765 characters = 5 Messages

 

UTF-16 encoding (Non-Latin text containing special characters, such as, but not limited to Arabic and Asian languages): ·Up to 70 characters = 1 Message

• Up to 134 characters = 2 Messages

• Up to 201 characters = 3 Messages

• Up to 268 characters = 4 Messages

• Up to 335 characters = 5 Messages

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Delivery Reports for Message traffic are provided by the network operator, messaging platform or third-party provider. At all times, Fortytwo cannot guarantee the accuracy of these reports.

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For Messages  there is no minimum TTL value, but the maximum TTL value is forty-eight (48) hours.

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 TTL is not guaranteed, as delivery depends on Fortytwo infrastructure as well as third-party carriers and network operators.

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The User acknowledges and understands that, in order to facilitate the delivery of Messages, Fortytwo or its service providers reserve the right to adjust the parameters of the Message, as necessary.

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Unless otherwise agreed to, in line clause 10.5 of the Terms of Use, Fortytwo retains the right to utilize any available communication channel. 

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Annex 2 – Service Description: Viber IM Gateway

The Viber IM Gateway enables the User to send and receive Instant Messages (“IM”) to and from IM users worldwide via the Client Control Panel or via the API (REST).

 

The User acknowledges that Charges for Viber IM are differentiated according to the type of Messages sent, as per Viber guidelines and discretion. Fortytwo shall make accessible any guidelines received by Viber in relation to such pricing, however the Parties acknowledge that the pricing and categorisation of the User’s traffic, as imposed by Viber, shall be final and payable by the User.  

To be able to use the IM Gateway Service, the User shall set up a sender ID with a profile image. The sender ID can be alphanumeric or numeric (maximum twenty (20) characters/digits) and the User can select to set up a 1-Way or a 2-Way sender ID. The approval of such sender ID is at the discretion of Fortytwo.

 

The IM Gateway Service allows the User to send transactional and/or promotional Messages. For the purposes of these Terms of Use, promotional Message shall mean a Message which contains any information that promotes the User’s business agenda, the User’s business offer or commercial information. For the avoidance of doubt, the Messages that are not transactional and/or targeted to a specific recipient shall be considered as promotional.

 

The User must ensure that all promotional Messages are tagged "Promotional" in the REST API request or highlighted as promotional when sending the IM via the Client Control Panel.

 

For the avoidance of doubt, any IM message is to be sent based on the Recipient’s consent.

 

The Instant Message can contain up to one thousand (1000) characters.

 

The User can either send 1-Way or 2-Way Instant Messages, each of which requires a different sender ID. 2-Way IM messaging enables recipients to reply to the Users Messages and initiate a conversation with the User, while 1-Way IM does not provide such option of replying to the IM.

 

The User will have the option to select from the below routing logics:

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1. Feature First Routing (FFR) 
   Message is sent as an Instant Message as the preferred option. If the Instant Message is not delivered in accordance with the TTL set by the User, the Message will be sent as an SMS.

2. IM only
   By using this logic all Messages will be sent as IM. If the Message is not delivered, it will not fail over to SMS.

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For IM the TTL can be set from a minimum of fifteen (15) seconds up to twenty-four (24) hours or for a definite period of fourteen (14) days. Should no TTL value be set, the default is twenty-four (24) hours. In the event that the IM status does not state “delivered” within the set TTL, the IM shall not be charged and:

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• In android systems, the Message will not appear;

• In iOS systems, the recipient shall see an alternate text.

 

For SMS there is no minimum TTL value, but the maximum TTL value is forty-eight (48) hours.

For SMS the TTL is not guaranteed, as delivery depends on Fortytwo infrastructure as well as third-party carriers and network operators.

 

In order to activate the IM Service, the User shall be required to register a Sender ID, as per registration form provided by Fortytwo.  Once the Sender ID is registered, the minimum commitment for each Sender ID depends on the country the IM is sent to, currently up to three hundred Euro (€300) per month (“Minimum Monthly Commitment”).  As a result, in the event that the User, through the specific Sender ID, has not used the IM Service to corresponding Minimum Monthly Commitment (currently up to three hundred Euro (€300) per month), this amount shall nonetheless be charged. The price list with Minimum Monthly Commitment can be accessed from Fortytwo’s website. The User is solely responsible to check about updated prices, including any Minimum Monthly Commitments and Global Coverage List prior to using the IM Service.

 

For the IM Service above Minimum Monthly Commitment, the User shall be charged on actual usage.

 

For the avoidance of any doubt, in the event that the User subscribes to the IM Service during any calendar month, in such manner that not the full month is utilised, the Minimum Monthly Commitment shall not apply, and the User shall pay the actual usage Charge for that calendar month.

 

In the event that the User wishes to de-register any active Sender ID, such request needs to be sent to Fortytwo before the 15th day of the current month or in the event that the 15th day of the month is not a Working Day, to the closest Working Day prior to the 15th day of that month, for the registration to be effective as of the 15th day of that month. In the event that such request comes in after the above-mentioned 15th day of the month or closest prior Working Day, de-registration shall be effective as of the 15th day of the following month. 

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The User shall be liable to pay all Charges, including prorated amount of the Minimum Monthly Commitment, until de-registration comes into force.

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The User shall agree to and be obliged to follow any guidelines and policies with regards to the Service, required from the User, and as listed on the Client Control Panel and the Website, as updated from time to time. Any warranty letters required shall be provided to Fortytwo in a timely manner. By making use of this Service, the User confirms to comply with and be bound by any available guidelines, policies and warranty letters applicable to the Service.

 

The User acknowledges that any individual Spam IM Message sent through the IM Service, shall result in a penalty of five thousand Euro (€5,000) and the User shall be liable to indemnify and reimburse Fortytwo for such penalty. Spam IM Message shall be considered an IM Message that has been sent without obtaining the opt-in from the Recipient and/or the content is not in accordance with these Terms of Use, any policies and guidelines available or applicable law.

 

Annex 3 – Service Description: 2-Way Messaging Service

With the 2-Way Messaging Service the User can set up a dedicated virtual number to receive inbound SMS from its customers. The incoming SMS can be accessed and managed on the online platform or forwarded to an email or an API.

 

Annex 4 – Service Description: 2-Factor Authentication Service

1.  Fortytwo shall also provide to its Users, a solution, in order to validate and verify that the submitted telephone number is under the control of the User’s Recipient applying for the User’s service (hereinafter “2-Factor Authentication Service”).

2. The User, in furtherance to clause 5.2 to these Terms of Use, shall be solely responsible to obtain the telephone numbers from its Recipient and the User confirms that it has obtained the Recipients ’s authorisation to provide the telephone number to Fortytwo, in order to be able to provide the 2-Factor Authentication Service, lawfully and in accordance to any legal requirement.

 

Annex 5 – Service Description: Fortytwo Voice

Fortytwo Voice enables the User to send voice Messages via a REST API. The Service can be used for promotional or informational purposes and Messages can be delivered to mobile and landline phones worldwide.

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The User can either select to broadcast a pre-recorded audio file in MP3 or WAV format or use the Text-To-Speech (“TTS”) option, which converts written text into spoken voice. For TTS the User can choose from different languages and specify a voice gender (male or female) in which the text is spoken. There is no minimum or maximum length for the voice Message. The quality of the voice Message is dependent on the audio file or written text provided. Depending on the size of the audio file or the length of the TTS text, there may be a delay from when the call is answered, and the voice Message is played.

 

The User also sets the desired Caller ID to show to Message recipients, up to a maximum of fifteen (15) digits or eleven (11) alphanumeric characters, set ring and call timeouts (minimum ten (10) seconds) and other call options as per Service documentation available on the Fortytwo website. The User can also enable Keypress Capture, which reports the first phone key pressed during a call (digit 1-9).

 

To be able to use Fortytwo Voice, the User will need to set up an authentication token on the Client Control Panel. The User can select between two (2) service options, Voice or Voice Plus.