TERMS OF USE

 

 1.   USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS OF USE

These Terms of Use (the “Terms of Use”) shall commence on the date of acceptance by the User and shall continue until terminated in accordance with the Terms of Use herein. Until termination, Fortytwo agrees to provide the Service to the User in accordance with these provisions.

These Terms of Use shall set out the entire agreement between 42 Telecom Limited (hereinafter referred to as “Fortytwo”) and the User.

2.   DEFINITIONS AND INTERPRETATIONS

For the purposes of these Terms of Use:

2.1 “Charges” means any or all of the charges and fees payable by the User for the Service pursuant to these Terms of Use;

2.2 “Confidential Information” means any information, whether communicated orally or in writing or any other form, which relates to the business of the Parties including, without limitation, any information relating to products, customers, pricing, policies, methods, business plans and strategies, technical processes and financial affairs, in all cases whether expressly stated to be confidential or not;

2.3 “Global Coverage List” means a list of potential network destinations available through the Service;

2.4 “Customer Support Department” means the support department of Fortytwo, available to the User as per Clause 8 of these Terms of Use;

2.5 “Effective Date” means the date of execution of these Terms of Use. For the avoidance of doubt it shall coincide with the day that the User accepts these Terms of Use;

2.6 “Fortytwo” means 42 Telecom Limited, a company incorporated under the laws of the Republic of Malta, with Company Registration Number C 50141 and having its Registered Address at 129, Casa D’Arte Centre, Triq Tal-Labour, NXR 9023, Naxxar, Malta;

2.7 “IM” means Instant Message, a type of real-time message transmission delivered over the Internet and as further defined in Annex 2 to these Terms of Use;

2.8  “IPR” means all intellectual property rights including, without limitation, copyright, patents, trade-marks, registered designs, design rights, mask works, know-how and all other similarly protected rights;

2.9 “Message” means any text, voice, sound or image message sent over a public communication network which can be stored, in the network or the recipient’s terminal equipment until it is collected by the recipient;

2.10 “Party” means either Fortytwo or the User;

2.11 “Parties” means Fortytwo and the User collectively;

2.12 “Personal Data” means personal data as defined by the Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council, dated the 27th of April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 119, 04/05/2016) and as amended from time to time (i.e. any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference an identification number, location data, an online identifier or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity of that natural person) and any equivalent definition in the relevant data protection and privacy laws of the European Union and the Republic of Malta to the extent that such definition should exceed that of the Data Protection Regulation;

2.13 “Service” means any and all of the Service/s that Fortytwo has agreed to supply to the User, as set out in Clause 3 below;

2.14 “SMS” means the Short Message Service conforming to GSM 03.40 enabling text message of up to 160 characters as well as binary with 140 bytes and Unicode SMSs with 70 characters to be transferred and/or originated, on compatible communications devices and fixed devices connected to the systems of the Parties, which text comprises words or numbers or alphanumeric combinations and as further defined in Annex 1 to these Terms of Use;

2.15 “Terms of Use” means these terms and provisions of the Service provided by Fortytwo and the entire agreement between Fortytwo and the User;

2.16 “TTL” means Time-To-Live, a feature that allows the User to set the duration of time, in seconds, for which Fortytwo will attempt to send the Message;

2.17 “Unsolicited Traffic” means those Messages which are sent on an unsolicited basis to the end user receiver and which contain content embedded in the sender field or linked or attached in any way and which relating to market information or other commercial or non-commercial information (so called spam) that has not been requested by the end user receiver;

2.18 “User” means the Company/Party that has accepted these Terms of Use. For the avoidance of doubt, the Service is offered to business entities for commercial use and shall not be utilised for any personal use;

2.19 “Working Day” means 09:00 to 17:00 (CET) Monday to Friday but excluding public holidays in Malta as recognized by the Parties and observing daylight savings in terms of CET in summer, where applicable.

3.   PROVISION OF THE SERVICE

3.1    Subject to the provisions of these Terms of Use, Fortytwo shall deliver Messages to end user receiver or network service providers and the User shall be responsible to ensure that the device number and content of the Message to be delivered adheres to the provisions of these Terms of Use (the “Service”).

3.2    The Service shall be provided via Fortytwo’s Advanced Messaging Platform (“AMP”) which once connected, the User can make use of the SMS Gateway, IM Gateway, 2-Way Messaging Service, 2-Factor Authentication and Fortytwo Voice, as further described in the Annexes attached hereto. AMP is an advanced platform, in that it routes traffic via SMS or IM, based on the User’s preferences for Message delivery.

3.3    Fortytwo shall be responsible for the setting up of the Service for the User.

3.4    The Service shall be provided to the User using Global Coverage List. The Global Coverage List shall be subject to change from time to time. The User shall be responsible to review the updated lists from Fortytwo’s Client Control Panel on a regular basis.

3.5    Fortytwo, at its sole discretion, has the right to decide on the acceptance of a User’s usage of the Service.

4.   FORTYTWO’S OBLIGATIONS

4.1    The provision of the Service is subject to all relevant licenses, infrastructure (roaming or interconnect arrangements) and all consents being in place.

4.2    Fortytwo shall exercise the reasonable care and skill of a competent electronic communications operator. The Service cannot be guaranteed to be fault free however Fortytwo shall best endeavour to provide the same quality of service to the User as it provides from time to time to its customers generally.

5.   USER’S OBLIGATIONS

5.1    The User shall not utilise and shall ensure that no other third party uses the Service:

5.1.1    for storing, reproducing, transmitting or communicating any unsolicited content or spam of offending nature such as, but not limited to, pornography, war or illegal drugs; or

5.1.2    fraudulently or for any criminal purpose or in a manner that is contrary to any regulatory or legal requirement; or

5.1.3    to cause annoyance, inconvenience or needless anxiety to any person; or

5.1.4    in breach of any law, regulation, code of practice or Fortytwo’s or relevant service provider’s acceptable use policy, or

5.1.5    in an abusive, indecent, defamatory, obscene or menacing manner; or

5.1.6    in an otherwise offensive manner, or in breach of confidence, IPR, privacy or any right of a third party;

5.1.7    contrary to instructions that Fortytwo may reasonably give to the User; or

5.1.8.  to transmit any electronic material (including viruses) through the Service, which shall cause or is likely to cause detriment or harm, in any degree, to computer systems owned by Fortytwo or end users.

5.2    The User shall ensure that the end user have consented to receive any Messages and have effectively opted-in with the User to receive such Messages. Such opt-in shall be considered valid if given within three (3) months from the receipt of each Message.

5.3    The User shall preserve such opt-in data and shall present such data when requested by Fortytwo.

5.4    The User shall also provide a means whereby the end user who have effectively opted-in, can opt-out from receiving any further Messages from the User.

5.5    In the event that any end user opts out from receiving any Messages from the User, the User shall ascertain that no further Messages are sent to such end user, and that such device number is removed from the list of numbers to which Messages can be sent to.

5.6    The Service is used by the User to link into service providers worldwide, and the User agrees to conform to the acceptable usage policies of such service providers. The User must ensure compliance with any applicable data protection and other legislation associated therewith.

5.7    The User must be in possession of all necessary approvals, relevant licences and infrastructure in order to be able to provide the service to its customers through the Service provided by Fortytwo.

5.8    The User shall provide Fortytwo with all information that Fortytwo needs, and allow Fortytwo to use that information for credit checking and debt collection (including disclosure to and use by third parties acting for Fortytwo) and any other uses and disclosures allowed by applicable data protection legislation and shall allow Fortytwo to disclose such information to the extent that Fortytwo is required to do so by law or at the request of any relevant authority. For the avoidance of doubt, the User shall also provide to Fortytwo any information reasonably requested by Fortytwo in order for Fortytwo to abide by any obligation imposed upon it by any service provider.

5.9    The User shall, prior to the commencement of the Service, notify Fortytwo in writing as to the general content of the User’s traffic and shall provide any other information reasonably requested by Fortytwo.

5.10    The User shall ensure that the User’s traffic content is advertised, promoted, operated and presented in a manner so as not to bring or be likely to bring Fortytwo’s or an associated company’s service and name into disrepute. Fortytwo’s opinion in this regard shall be final and binding.

5.11    In the event that the User anticipates a substantial increase in Messages, then the User shall advise Fortytwo of such anticipated increase at least twenty four (24) hours before. Moreover, the User shall give Fortytwo as much written notice as possible (being not less than four [4] weeks) in the case of television and other media advertising of the number(s), that may result in increase in capacity usage. Fortytwo shall use its reasonable endeavours to route the forecast Messages volumes in full.

5.12    The User shall, in writing, report any fault to Fortytwo’s Customer Support Department, where it shall be dealt with in accordance with the agreed fault repair service. If Fortytwo agrees to fix a fault that is caused by the User or that otherwise falls outside the responsibility of Fortytwo or where no fault is found, Fortytwo may charge the User for any work that Fortytwo has undertaken at its applicable man-hour rate which shall be reasonable and in no case be disproportionate to the cost of fixing the fault.

6.   SERVICE ACKNOWLEDGEMENT AND UNDERTAKINGS

6.1    The User is responsible for any and all information and content used within the Service, as well as for ensuring that the User’s marketing and information regarding the Service complies with all relevant legislation and regulations applicable in its jurisdiction and the jurisdiction in which the Messages shall be transmitted and/or terminated. It shall be the sole responsibility of the User to ensure awareness of all applicable laws, regulations, codes of conduct and service providers’ regulations to which they may be subject and to ensure compliance therewith.

6.2    The User agrees to notify Fortytwo immediately of any unauthorized use of its account or any other breach of security.

6.3    Fortytwo prohibits any person, business or entity to gain or attempt to gain any unauthorized access, or to deliver or attempt to deliver any unauthorized, damaging or malicious code to the Website, Control Panel and/or the Service. Any damages and/or losses resulting from the misuse of the Service by the User shall be claimed by Fortytwo from the said User accordingly, including through the use of legal action where necessary.

7.   REGISTRATION AND ACCOUNT SETUP

To make use of the Service, the User must register with Fortytwo. The User must complete the registration form and must provide Fortytwo with up to date, complete and accurate information as requested by Fortytwo (“Registration Data”). Failure to provide accurate and complete information upon registration may result in the termination of the Service. As part of the registration, a username and password will be set up and the User shall receive a confirmation e-mail, confirming that the User is connected to the Client Control Panel. The User shall be responsible for maintaining the confidentiality of the username and password and the User shall be entirely responsible for any and all of the activities that occur under the registered account. The User shall be strictly liable to make payment of all Charges incurred in connecting with the account whether or not these charges are incurred by the User itself or any other person, authorized or unauthorised, intentionally or unintentionally, or as a result of any virus, hack or security breach of the User’s account information.

8.   CUSTOMER SUPPORT AND RESPONSE TIME

Fortytwo shall offer 24/7 customer support to the User. The principal customer support and service mechanism is e-mail. Where the User encounters any problems, an e-mail should be sent to support@fortytwo.com and the support service shall respond to the e-mail within forty-five (45) minutes of transmission.

Fault description

Resolution time

Full or partial Service loss to several networks

90 minutes during office hours;

150 minutes outside office hours.

Service loss to one network

90 minutes during office hours;

150 minutes outside office hours.

Partial Service issues to one network

4 hours.

Delivery issues with single number

2 Working Days.

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.

Office hours are Monday to Friday 09:00 – 17:00 CET (DST applies) 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.

10.   COVERAGE AND PRICE LIST

The Global Coverage and Price 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 Global Coverage and Price List is subject to fluctuate (increase or decrease) at any point in time. The latest Global Coverage and Price List is available on a web interface Control Panel (the “Client Control Panel”) available immediately to the User upon sign up. The User is solely responsible to check about updated prices and Global Coverage List prior to using the Service.

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 PAYMENT TERMS

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

12.2    The User shall make all payments in Euro (€).

12.3    The Charges are exclusive of Value Added Tax (VAT), which shall be payable by the User within the EU jurisdiction. Any User subscribing to this Service within the EU jurisdiction, shall be a registered business and shall only use this Service in respect of such business. In addition, any User subscribing to this Service within the EU 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. This Clause is not applicable to Users outside of the EU, countries not subject to VAT or Maltese jurisdiction.

12.3.1    In the event that Fortytwo becomes liable to pay VAT and/or any related penalties due to the User’s breach of Clause 12.3, the User shall reimburse such VAT and/or related penalties to Fortytwo.

12.4    The User shall pay all Charges as calculated using the details recorded or logged by Fortytwo’s Billing System and not details recorded by the User.

13.   REFUNDS OF PAYMENTS

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.

14.   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.

15.   TERMINATION

15.1    The User may terminate the Service at any time, provided that the User gives Fortytwo a prior written notice of thirty (30) days. The notice should be sent via an e-mail to support@fortytwo.com with a subject line ‘Terminate’ and the User’s username should be incorporated in the body of the e-mail. For the avoidance of doubt, Fortytwo reserves the right, to terminate immediately the Service for any reason.

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

16.   ACCOUNT SUSPENSION OR DEACTIVATION

Fortytwo reserves the right to suspend or archive any trial account set-up by the User. The User may request the re-activation of the account and reactivation shall only take place at the discretion of Fortytwo. In the event that, the account has been suspended, the User shall only be refunded of any available credit at the discretion of Fortytwo.

17.   BREACH

In the event that the User breaches any of the Terms of Use herein, then, without any prejudice to any legal rights, Fortytwo shall reserve 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 sue the User for specific performance by the User.

18.   LIABILITY

Fortytwo, shall under no circumstances, be liable for any loss, damages or claims whatsoever, made by the User, 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 claims by a third party arising out of or in connection with these Terms of Use, 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.

19.   INDEMNITY

Notwithstanding any other 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 and the User shall indemnify and hold Fortytwo harmless against all claims, demands, actions, costs, expenses, including but not limited to disbursements, losses and damages arising from or suffered or incurred by reason of any breach by the User of these Terms of Use or claims, including but not limited to the defence of such claim. The User undertakes to defend and hold Fortytwo harmless, without any limitation, in the event of a claim against Fortytwo from an end user, a supervisory authority or any other third party.

20.   FORCE MAJEURE

Fortytwo shall not be liable for any delay in performing 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, acts or omission of government or other competent authority or regulatory authority, acts or omissions of communication network operators, fire, flood, lightning or other weather or exceptional severity, subsidence, explosion or industrial disputes.

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.

21.   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. 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.

22.   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.

23.   DATA PROTECTION AND PRIVACY

23.1    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. For the purposes of this clause, Fortytwo shall be referred to as the “Processor” and the User shall be referred to as the “Controller”.

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

23.3   The Parties acknowledge that the Processor is subject to the applicable data protection legislation of the Republic of Malta and the European Union. For the avoidance of doubt, the Controller shall be solely responsible to ensure that the Controller’s instructions and/or compliance with the applicable data protection legislation of the European Union do not contradict any other applicable legislation. The Controller shall indemnify and keep the Processor indemnified against all or any claims, demands, costs and expenses incurred by the Processor in such regard. The Processor hereby warrants and undertakes in respect of all Personal Data that it may process on behalf of the Controller throughout the duration of these Terms of Use that at all times:

(a) shall process the Personal Data only on documented instructions from the Controller, 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 the Processor cannot comply with a change to the Controller’s instructions without incurring material additional costs, the Processor shall (i) immediately inform the Controller, 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 Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights in accordance with the applicable law;

(e) shall assist the Controller in ensuring compliance with the obligations pursuant to the applicable law taking into account the nature of processing and the information available to the Processor;

(f) at the choice of the Controller, deletes or returns all the Personal Data to the Controller after the end of the provision of services relating to processing, and deletes existing copies unless applicable law requires storage of the Personal Data;

(g) shall make available to the Controller 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 Controller 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 Controller;

(h) shall notify the Controller without undue delay after becoming aware of a Personal Data breach and the notification shall at least 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 Controller 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. The Processor shall immediately inform the Controller, if in its opinion, an instruction infringes the applicable law.

23.4 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.

23.5    The Processor shall undertake appropriate technical and organisational measures to safeguard the security of the Services provided to the Controller (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.

23.6    The Controller shall indemnify the Processor in respect of all liabilities, costs and expenses suffered or incurred by the Processor in its capacity as processor of the Personal Data arising from any breach of data protection legislation in the terms of this Clause 23 or any negligent act or omission by the Controller in the exercise of the rights granted to it under the applicable law provided that:

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

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

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

(d) The Processor 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 Controller.

23.7    The Controller shall be solely responsible to ensure that all natural persons included in the User’s Personal Data has received all necessary information regarding the Client’s processing of Personal Data and to ensure that all necessary consents have been duly collected, required for Fortytwo to process such Personal Data.

23.8    The Controller is hereby giving its prior written general authorisation to the Processor to allow that data processing services entrusted to the Processor 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 the Processor 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.

23.9    The Controller reserves the right to withdraw the right of the Processor 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 23.8 above, any such sub-processing shall be done accordance with applicable law and the provisions of these Terms of Use. The Controller understands that due to nature of telecommunications services, all or any sub-processors and sub-contractors cannot be communicated to the Controller. In the event of any substantial material change or replacement of the current sub-processor of the Processors, the Controller shall be informed of such in order to be able to object such relevant changes. In the event that the Controller exercise its right to object or withdraw its consent to subcontracting the processing of the Personal Data, the Processor cannot guarantee the provision of the Service.

23.10    The User acknowledges that Fortytwo has an obligation to keep the transferred Personal Data for a period of one (1) year after the Service was provided. After such period, Fortytwo shall permanently delete 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 was concluded, Fortytwo will not actively process the transferred Personal Data, it shall be kept only to satisfy its statutory obligations or to protect its legitimate interests.

23.11    Fortytwo, shall under no circumstances, monitor, edit or disclose any personal information about the User or the User’s account, phonebook, Message content and device numbers, other than in the normal course of the use of the Services, without the User’s prior permission, 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. Any third party may enforce any of the provisions of these Terms of Use in order to respond to services or technical issues and may communicate with Fortytwo from time to time, for the purposes of including, but not limited to, communicating information regarding any updates, upgrades, notices or other information.

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

24.   CONFIDENTIAL INFORMATION

The User and Fortytwo agree, during the duration of these Terms of Use, 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 or professional advisors 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.

25.   TRADEMARK INFORMATION

25.1    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.

25.2    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.

25.3    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.

25.4    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.

26.   COPYRIGHT ABUSE

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.

27.   GENERAL PROVISIONS

27.1    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.

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

27.3    These Terms of Use are personal to the User and 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.

27.4    The User, by accepting these Terms of Use, warrants that it is duly authorized and has legal capacity to execute these Terms of Use, in the absence of which, such User shall be held personally liable for the performance of the obligations under these Terms of Use.

27.5    The User agrees that these Terms of Use 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 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.

 Annex 1 – Service Description: SMS Gateway

The SMS Gateway Service enables the User to send SMS 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 networks worldwide.

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

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

Concatenated SMS Messages will be charged as per below:

GSM encoding Standard (Latin Text):

· Up to 160 characters = 1 SMS
· Up to 306 characters = 2 SMS
· Up to 459 characters = 3 SMS
· Up to 612 characters = 4 SMS
· Up to 765 characters = 5 SMS

UTF-16 encoding (Non Latin text containing special characters mainly used for Arabic and Asian languages):

·Up to 70 characters = 1 SMS
· Up to 134 characters = 2 SMS
· Up to 201 characters = 3 SMS
· Up to 268 characters = 4 SMS
· Up to 335 characters = 5 SMS

Delivery Reports for SMS traffic are provided by the network operator or third party provider. Fortytwo cannot guarantee the accuracy of these reports at all times.

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.

Annex 2 – Service Description: IM Gateway

The 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).

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 personal, informative, transactional, service and 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.

Even though the IM Gateway Service allows the Users to send promotional Messages, the first Message sent from the User to a recipient must be personal, informative and a targeted Message; the User shall not send promotional Message as the first Message sent to the recipient through the IM Gateway Service.

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.

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:

  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.    Least Price Routing (LPR)
    By choosing this logic, each Message will be sent through the lowest cost route for the destination, i.e. if SMS is the cheapest option the Message will be sent through SMS, if IM is the cheapest option the Message will be sent through IM.
  3.    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.

 

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:

  • 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), shall be charged such amount nevertheless.

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.

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

The User shall agree to and be obliged to follow any guidelines and policies with regards to the Service, listed on the Client Control Panel and the Website, as updated from time to time.

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 end user 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: SMS 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 end client 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 end client and the User confirms that it has obtained the end client’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.

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.

Option

Description

Activation

Voice

  • Fortytwo will deliver these Messages as soon as possible.

  • Supports up to five hundred (500) destination numbers per API request.

  • Suitable for bulk, promotional and non-time sensitive messages.

By default

Voice Plus

  • Express delivery of Messages; Fortytwo strives to deliver these Messages faster.

  • Supports one (1) destination number per API request.

  • Suitable for service messages, two-factor authentication and other time-sensitive Messages.

On request

Access to Voice Plus will need to be enabled by Fortytwo on request and different pricing templates shall apply. For both Service options, Voice Messages are charged per minute basis. The pricing is based on country, prefix and route (Voice or Voice Plus). There is no cost for calls that are not answered by the call recipient, unless more than fifty percent (50%) of the User’s Voice Messages sent through Fortytwo are not answered by the call recipients for any reason in any period of three (3) months of use of the Service. In such event Fortytwo shall notify the User and from such notification Fortytwo reserves the right at its own discretion to charge the User for any Voice Messages sent through Fortytwo.

Delivery of the Messages depends on Fortytwo’s infrastructure as well as third-party carriers and network operators, and Fortytwo cannot guarantee delivery of the Messages at any time, or within a specific timeframe. The status and detailed history of the User’s voice campaigns can be found on the Client Control Panel at all times. Delivery Reports for voice traffic are also shown on the Control Panel, but once again Fortytwo cannot guarantee the accuracy of these reports as these are provided to Fortytwo by third-party operators.