General Terms and Conditions 2020
NO LONGER APPLICABLE. ONLY FOR REFERENCE.
This Agreement is made between MessageBird B.V., a private company with limited liability incorporated under Dutch law, with registered office at Amsterdam and principal place of business at Trompenburgstraat 2C, (1079 TX) Amsterdam, registered with the Trade Register of the Dutch Chamber of Commerce under number 51874474 (“MessageBird”), and Customer.
The Agreement governs Customer’s licensing and use of the Services. By executing an Order Form that references this Agreement or by using our Services, Customer agrees to the terms of this Agreement as of the Effective Date.
Any deviation from this Agreement should only be valid if and agreed upon by and between the Parties in writing.
MessageBird is a Cloud Communication Platform as a Service (CpaaS) provider and offers solutions to companies and businesses for the sending and receipt of electronic communication.
Customer wishes to use MessageBird’s Cloud Communication Service in its business operation.
MessageBird wishes to provide Cloud Communications Service to Customer and Customer wishes to use and pay for Cloud Communication service in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and representations contained herein, the Parties agree to the following:
“Affiliate” means, in relation to either Party, any legal person which is Controlled by, Controls or is under common Control with, such person. Control meaning with respect to the relevant person, (i) the direct or indirect ownership or control of more than 50% of the (a) ownership interests or (b) voting power at the general meeting or a similar body, of that person, or (ii) the right or ability to appoint or remove such number of the members of the board or a similar body of that person with decisive voting power in such body.
“Agreement” means the General Terms and Conditions and any exhibits, annexes, and addenda hereto.
“API” means application programming interface.
“Applications” means software-based tools that provide a visual interface designed to operate and utilize the Platform.
“Channels” means the services that allow point-to-point information exchanges between Customer and the end-users of the Messages such as SMS, Voice, Chat, and E-mail.
“Claim” means a third-party claim, demand, suit or proceeding.
“Commercial Launch Date” means the date specified in the Order Form or in the Dashboard as of which MessageBird shall start charging Customer for the Services.
“Confidential Information” means information maintained in confidence by a Party, information which is marked as such, or information whether written or oral that by its nature would be understood, by a reasonable person under the circumstances, to be confidential information of a party. For the avoidance of doubt, the specific content of this Agreement, details of the Platform, supporting documentation, the Cloud Communication Service, any data or information transmitted by Customer through the Platform or used by Customer for or in connection with the Cloud Communication Service and the results of any performance tests will be regarded as Confidential Information.
“Cloud Communication Service” or “Services” means all services and subscriptions provided by MessageBird to Customer, including, without limitation, the Managed Services, the Platform, the Dashboard, the Software, the API, the Solutions and the Channels (generally referred to, unless the context requires otherwise or is differently defined in the Order Form or in the Dashboard).
“Customer” means any company, business or any other entity acting in the exercise of a profession or business to which MessageBird provides Services and which is named as such in the Order Form or in the Dashboard.
“DPA” means the Data Processing Annex which forms part of this Agreement. In case of conflict or inconsistencies between the data protection related provisions of the Agreement and the DPA, the DPA will prevail.
“Data Protection Legislation” means all relevant requirements of the applicable data protection legislation, including without limitation, the General Data Protection Regulation (EU) 2016/679 and the California Consumer Privacy Act 2018. For the avoidance of doubt, CCPA references shall only apply to California Consumers.
“Dashboard” means MessageBird’s customer portal available on the Site.
“Effective Date” means when (i) both Parties execute an Order Form, (ii) when Customer registers an account on the Dashboard, or (iii) when Customer starts using the Services
“End-user” means the private individual who ultimately receives the communications sent by Customer or its Affiliates via the Services.
“Fees” means the prices paid by Customer for the access and use of the Cloud Communication Service.
“Guidelines” means the terms outlined in the Order Form, in the Dashboard, or on the Site.
“Inappropriate Content” means collectively any content that (i) is unsolicited, including without limitation, “junk mail”, “bulk email”, spam or other unsolicited material; or (ii) qualifies as spam under any applicable laws and regulations; or (iii) potentially causes the introduction of harmful computer programs or code in the Platform or End-User’s devices; or (iv) violates any legal, regulatory, self-regulatory, governmental, statutory or telecommunication network operator’s requirements or codes of practice, or Third-Party Application Terms; or (v) is unlawful, pornographic, abusive, racist, obscene, offensive, threatening, harassing, defamatory, discriminatory, misleading or inaccurate; or (vi) is harmful or malicious content, including but not limited to hate speech, and any other material that MessageBird reasonably believes degrades, intimidates, encourages violence against, or foments prejudicial action against anyone based on gender, race, age, ethnicity, nationality, religion, sexual orientation, disability, geographic location or other discrimination reason; or infringes the intellectual property rights of any person or entity; or (vi) is illegal in any other way.
“Integrations” means the interoperable and coordinated use of the Services within Third-Party Applications.
“Licensed Material” means the Platform, the API, all Software and related documentation provided by MessageBird.
“Managed Services” means support-based services that provide onboarding and support of the Customer as they utilize the Platform, such as the Support Plan.
“Message” or “Messages” means a set of systematized, textual, numerical, graphical or phonetical characters transmitted between Customer and an End-User over the Channels
“MessageBird Library” means the developers’ resources concerning the use of the Cloud Communication Service available on the Site.
“Network Adds-on” means additional telecom network services.
“Order Form” means the document as referred to in clause 17.2 of the Agreement.
“Party” or “Parties” means MessageBird and Customer individually or together.
“Platform” means the cloud communication platform of MessageBird.
“Site” means MessageBird’s web domains, including the pricing and all other webpages thereof, available at www.messagebird.com and https://developers.messagebird.com/.
“SLA” means the Service Level Agreement available on the Site.
“Solution” means the prepackaged and preconfigured components of the Platform designed to execute a predefined process and produce a specific result which uses the Platform and enables Customer to communicate with its clients by means of the Channels.
“Subscription” means the plan Customer elects for access to and/or use of the Services.
“Subscription Fee(s)” means the monthly or yearly recurring fees Customer is charged for the Subscription. In the event Customer decides to upgrade its Subscription, the relevant Subscription Fee of the higher-tier Subscription shall apply pro-rata for the remainder of the term of the Services. Any changes to the Subscription Fee shall be applicable as of the date of renewal of the Services.
“Support Plan” means the managed support services provided by MessageBird to Customer in accordance with the Guidelines. For the avoidance of doubt, Customer may change the Support Plan on monthly basis by giving MessageBird prior written notice except in the event (i) Customer subscribed to the Private Support Plan, (ii) Customer purchased a Technical Account Manager as a separate add-on to the applicable Support Plan, and/or (iii) Customer subscribed to any paid Support Plan at a discounted pricing. Customer understands and agrees that upon the occurrence of any of the scenarios mentioned above, Customer is committed to the applicable Support Plan for a minimum period of twelve months.
“Taxes” means any and all applicable local, federal and state taxes, fees, charges, telecommunications provider surcharges, withholding taxes or other similar taxes, including, but not limited to, VAT, GST, sales tax and/or use tax.
“Third-Party Applications” means third-party internet-based or offline enabled software applications, operating systems, and other types of platforms that interoperate with the Cloud Communication Service to enable its complete range of functionality. For the avoidance of doubt, telecom network providers (such as network (mobile) operators or virtual (mobile) network operators) are excluded from this definition.
“Third-Party Applications Terms” means the terms and conditions, and/or usage policies which directly or indirectly apply to use of the Third-Party Applications by Customer.
“Transactional Fee(s)” means the fees for the use of the Services.
“Trial Period” means the period agreed by the Parties for the Customer to use the Services in accordance with clause 15 of the Agreement.
Customer agrees to pay the Fees as set forth on the Site’s pricing page, as may be updated from time to time, or as agreed otherwise in the Dashboard or the Order Form.
Unless otherwise stated, all Fees excludes any applicable Taxes, including any related interest and/or penalties, and other government duties, as well as any other costs, such as transaction costs or bank transfer fees. In the event that Taxes are (or will be) applicable to the Services set out in this Agreement, such Taxes shall be added to the Fees. Customer shall be responsible for and pay all Taxes as well as any other costs imposed on or with respect to the Services that are subject to this Agreement. If Customer is exempt from VAT or GST, or if VAT or GST should be accounted for under a reverse charge mechanism or similar procedure, it is the responsibility of Customer to provide a valid VAT or GST registration number. If for any reason the local taxing authorities determine that Customer is not exempt from any such Taxes and imposed such Taxes to MessageBird, Customer agrees to promptly pay MessageBird such Taxes, including any applicable interest or penalties imposed by the local tax authorities.
If Customer is required by law to withhold or pay Taxes, levies and/or fees of any nature, Customer shall withhold or pay such Taxes, levies and/or fees and shall timely pay the full amount(s) to the relevant governmental authority in accordance with applicable law. MessageBird shall not be responsible for such Taxes, levies and/or fees. Additionally, the Fees payable by Customer to MessageBird shall be increased as necessary so that, net of such payments, Customer will pay to MessageBird such additional amounts as are necessary to ensure recipient of the full amount which MessageBird would have received before the withholding or paying of Taxes.
Provision of Services
The Cloud Communication Service shall be provided subject to the terms of this Agreement and according to the terms as specified in the Order Form, the Dashboard, and/or the Site.
The Services are designed and aimed to serve companies and businesses and are not suitable for personal or household use by private individuals.
SLA. The Services shall be performed in accordance with the SLA. Customer shall have the right to claim service credits in accordance with the SLA if MessageBird does not meet the relevant uptime.
Use of Third-Party Applications. The Cloud Communication Service may enable Customer to use, link, integrate, or otherwise use Third-Party Applications. By using such Third-Party Application with the Cloud Communication Service, Customer agrees to comply with the applicable Third-Party Applications Terms and where necessary authorises MessageBird to accept such Third-Party Applications Terms on Customer’s behalf. For the avoidance of doubt, Customer warrants to comply with any applicable Third- Party Application Terms, and MessageBird will have no liability in connection therewith.
Changes to the Services. MessageBird reserves the unilateral right to change the features and functions of its Platform, the Software, the Connectivity Services and the Cloud Communication Service in general, provided that such changes do not adversely affect the use of the Cloud Communication Service by Customer. Any such changes shall be made in accordance with the SLA.
Pricing and Payment Terms
Paid Services. For the avoidance of doubt, MessageBird shall start charging Customer the Fees for the Cloud Communication Service as per the Order Form Start Date or, as of when Customer starts using the Cloud Communication Services.
Overdue Fees. MessageBird may charge interest as per the maximum amount permitted by law if the Fees are not paid within the term specified in the Order Form, the Dashboard, and/or on the Site. If Customer is more than thirty (30) days overdue on its payment obligations, this constitutes a material breach of this Agreement.
Monthly Credit Limit. If applicable, Customer shall adhere to any monthly credit limit. If Customer does not reach the monthly credit limit amount by the end of a calendar month, MessageBird will invoice Customer at the end of such corresponding calendar month for its usage of the Services. If Customer reaches the monthly credit limit before the end of the corresponding calendar month, MessageBird will invoice Customer and such an invoice shall be due and payable immediately.
Suspension of Service. MessageBird may suspend the provision of the Cloud Communication Service with immediate effect if Customer fails to comply with any applicable payment obligations and if Customer exceeds the monthly credit limit as specified in the Order Form, the Dashboard, and/or on the Site.
Fees changes. Unless differently specified in the Order Form, the Dashboard, and/or the Site, MessageBird may change the Fees for the Services anytime. Any changes of the Fees will be published on the website of www.messagebird.com/en/pricing.
Prepaid credit. Unless differently specified in the Order Form, the Dashboard, or on the Site, any prepaid balance or credits purchased by Customer will lapse if Customer does not use the balance or credits within one year after the purchase date. MessageBird is not obliged to refund any prepaid balance or credit.
Currency. The currency of this Agreement shall be defined in the Order Form, the Dashboard, and/or the Site. If any payments are being made in a different currency other than EUR, the payment shall be calculated according to the official exchange rate as listed on www.oanda.com stated on the day when such payment is made.
Invoice Disputes. Customer shall raise any dispute or other claim regarding an invoice, including any billing discrepancy, or other notice issued by MessageBird under this Agreement within fifteen (15) days after the date of such invoice or notice, in writing to MessageBird. If Customer fails to raise any dispute or claim, Customer no longer has any right under this Agreement to bring any dispute or claim regarding such invoice or notice. Customer understands and agrees that any billing disputes have to be made specific as to the relevant Service and the price charged for such Service. Any such dispute does not waive, delay or uphold any payment obligations of Customer (other than for disputed amounts).
Term and Termination
Term. This Agreement commences on the Effective Date and shall continue as long as Customer uses the Cloud Communication Services and to the extent applicable, not later until all Services entered into under this Agreement have expired or have been terminated. Except as may otherwise be expressly specified in an Order Form, in the Dashboard or on the Site, the Services will automatically renew for additional successive periods of equal duration to the initial term unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the Term.
Termination by both Parties. In addition to clause 5.1, either Party may suspend or terminate this Agreement with immediate effect, without being liable to pay any compensation or reimbursement, by notifying the other Party if any of the following events occurs and each of these events will be deemed to be a cause attributable to such other Party:
the other Party has ceased to exist or has been dissolved; or
the other Party has stopped doing business; or
the other Party files for bankruptcy, suspension of payments or similar protection from creditors;
the other Party has been declared bankrupt or has been granted suspension of payments, on a temporary basis or otherwise; or
the other Party commits a material breach of its obligations under this Agreement which is not remedied within fourteen (14) days of written notice from the non-breaching party requesting the breach to be remedied.
Unilateral Termination by MessageBird. MessageBird may terminate this Agreement or the provision of certain Services to Customer with immediate effect by notifying Customer if MessageBird reasonably considers that Customer’s use of the Cloud Communication Service is contrary to applicable laws and/or regulations or public order and morality, or breaches the terms and conditions of this Agreement or of other agreements with third parties which are involved in the provision of Services, as well as in case of misrepresentation by the Customer in regards to clause 11.3 of this Agreement.
Effect of Termination. Upon termination of this Agreement for any reason:
any accrued rights or liabilities or payments due or the coming into force or continuing in force of any provision of this Agreement which is expressly or by implication intended to survive after termination will not be affected. Without limitation, clauses 5,6,7,10,16 and those provisions necessary for interpretation or enforcement of this Agreement, survive termination or expiry and continue to apply indefinitely;
all Licensed Material granted under this Agreement shall immediately terminate;
outstanding and undisputed payment obligations will become immediately due and payable;
Customer shall immediately cease all use of the Cloud Communication Service;
MessageBird will reasonably cooperate to the extent required with Customer and its service providers in the migration of the Cloud Communication Service to a successor service provider selected by Customer, except in the event the Agreement’s termination is caused by Customer’s breach of this Agreement;
MessageBird shall not be obliged to refund any prepaid balance on the account; and
MessageBird reserves the right to charge any remaining committed Fees despite the termination.
Customer shall pay for the Cloud Communication Service in accordance with the terms set out in the Order For, the Dashboard, and/or on the Site.
Customer acknowledges and understands that MessageBird:
is only a conduit for the transmission of information sent by Customer, and MessageBird neither initiates the transmission of information, selects the receivers of the transmission, nor selects or modifies the information contained in the transmission;
when using the Cloud Communication Service, Customer is responsible for determining whether the Cloud Communication Service is suitable for Customer to use in light of applicable laws and regulations, such as, and without limitation, consumer protection and telecommunication laws such as the Telephone Consumer Protection Act of 1991 (TCPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and MessageBird is not liable if the Cloud Communication Service does not comply with such laws and regulations.
Customer may not use the Cloud Communication Service or permit it to be used to:
transmit Inappropriate Content;
interfere with or disrupt the integrity or performance of the Cloud Communication Service in whatever way; and
access the Cloud Communication Service in order to build a competitive product or service that may compete with MessageBird’s Services.
Customer is solely and fully responsible for:
the content of the communications sent by Customer or by a third-party on behalf of Customer and shall ensure on-going compliance with the applicable laws and regulations. Customer shall implement adequate measures to prevent the Cloud Communication Service being used directly or indirectly for illegitimate purposes, or in violation of this Agreement or applicable laws and regulations, or Third-Party Applications Terms; and
procuring and maintaining its network connections and telecommunications links from its systems to MessageBird, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunication links or caused by the internet.
Customer shall, at its own expense, take all security measures necessary to:
prevent any unauthorized and/or third-party access to Customer’s passwords, accounts or keys to the Platform and/or the Dashboard;
prevent overuse of the Cloud Communication Service such as Denial-of-Service attacks by implementing rate limiting where applicable;
prevent spam and fraudulent traffic by implementing blacklists, content filters and other suitable controls; and
ensure timely detection of and response to security incidents, by implementing security monitoring tooling and having security incident response plans and procedures in place.
Customer shall conduct regular vulnerability assessments and penetration testing to ensure its implementation of the Cloud Communication Service is secure.
Customer shall inform MessageBird by sending an email to firstname.lastname@example.org within twenty- four (24) hours of becoming aware of any breach or security incident involving the Cloud Communication Service.
Customer shall provide promptly all information reasonably requested by MessageBird:
to confirm Customer’s compliance with its obligations under this Agreement, the applicable laws and regulations; or
in response to any request made by any legal, regulatory, self-regulatory, governmental authority, supplier, or operator of a telecommunication network or system.
Customer may not use the Cloud Communication Services to perform or/and resell services substantially similar to the Cloud Communication Services without the express prior written consent of MessageBird.
Customer shall (i) comply with all applicable international trade laws, including without limitation, (a) economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities (including, but not limited to, the Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority and (b) the export controls laws and regulations of the United States of America and the European Union (collectively, (a) and (b), “International Trade Laws”), and shall obtain all export licenses and/or governmental approvals, whenever necessary. Customer guarantees and ensures that (i) neither it or its directors, officers, affiliates, employees or agents is named on or owned or controlled by any person or entity named on, any list of designated persons or entities of the United States of America and the European Union, or any other applicable jurisdictions under International Trade Laws or otherwise the target of International Trade Laws (a “Sanctions Target”) (ii) it is not located, organized or resident in any jurisdiction subject to comprehensive sanctions under International Trade Laws, and (iii) it will not (a) permit any end-user or any other person or entity to access or use the Cloud Communication Service if the end-user is a Sanctions Target or (b) permit end-users or any other persons or entities to access or use the Cloud Communication Service in violation of any International Trade Laws or in a manner that could cause MessageBird or any of its directors, officers, affiliates, employees or agents to be in violation of International Trade Laws.
In connection with Customer’s use of WhatsApp Business Solution (WhatsApp Services), as provided by MessageBird, Customer may not grant access to any third party service provider (hereinafter referred to as ‘Independent Software Vendor’ and/or ‘ISV’) to WhatsApp Service and Customer’s WhatsApp messages, without prior written approval by WhatsApp of such ISV. MessageBird reserves the right to immediately suspend Customer’s use of Whatsapp Services in the event Customer either operates as an ISV and/or engages an ISV in connection with its use of WhatsApp Services without approval of WhatsApp. For the avoidance of doubt, if Customer is an ISV, has engaged and/or intends to engage an ISV in connection its use of WhatsApp Services, Customer must immediately notify MessageBird of such use case, stop the respective use of WhatsApp Services by ISV, and agree to comply with additional requirements, including signing up to the respective and applicable supplementary WhatsApp terms and conditions, as well as provide the necessary information, as might be required to allow access to such ISVs. Customer expressly shall hold MessageBird harmless for any and all damages resulting from third party claims deriving from MessageBird’s suspension of WhatsApp Services due to Customer’s violation of these terms and WhatsApp’s terms. Customer hereby explicitly authorises MessageBird to accept WhatsApp Client Terms on its behalf.
Non-Disclosure of Confidential Information
The receiving Party shall use the disclosing Party’s Confidential Information only for the provision or receipt of the Cloud Communication Service and shall share this information only on a “need-to-know” basis with its employees, Affiliates and other contractors, provided that they are under a legal obligation to keep the Confidential Information confidential.
The receiving Party may disclose Confidential Information in connection with a competent judicial or administrative proceeding to the extent that such disclosure is compelled by law or court, provided that the party required to disclose the Confidential Information, to the extent permitted by law, (a) gives prompt notice to the other party and (b) uses reasonable efforts to minimize such disclosure.
A Party’s Confidential Information does not include information that:
is or becomes publicly known other than through unauthorized disclosure;
is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure; or
is independently developed by the receiving Party, which independent development can be shown by written evidence.
Each Party shall hold all Confidential Information relating to or obtained from the other Party confidential in perpetuity.
All personal data shared between the Parties shall only be used for the purposes of this Agreement. Each Party shall comply with the Data Protection Legislation.
The Parties acknowledge that MessageBird is a data processor for the purpose of processing personal data on end-users when providing the Cloud Communication Service to Customer.
Customer shall ensure that it has obtained all required and valid consents under the Data Protection Legislation when required for the processing of personal data by MessageBird for the performance of the Cloud Communication Service. Customer acknowledges that MessageBird has the right to monitor and intercept any electronic communications sent or received by Customer under the Cloud Communication Service for the purpose of verifying compliance under this Agreement.
To the extent MessageBird processes personal data on instruction of Customer, MessageBird shall comply with the DPA. Customer confirms that it has read and agrees with the privacy statement of MessageBird, which can be found on the Site.
MessageBird will delete Customer’s personal data after the end of the provision of the Services unless differently required by the applicable laws and regulations.
Proprietary Rights, Licenses and Trademark
MessageBird hereby grants to Customer a personal, non-exclusive, non-transferable, royalty-free license during the term of this Agreement to use the Licensed Material, which are necessary for Customer to use the Cloud Communication Service as agreed under this Agreement.
Subject to the limited rights expressly granted hereunder, MessageBird reserves all of its right, title and interest in and to the Cloud Communication Service and the Licensed Material, including all of its related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer has the right to access and use the Licensed Material subject to the terms of this Agreement.
Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Cloud Communication Service or Licensed Material, to any third-party. This restriction does not apply to the use of the Services by Customer’s Affiliates provided that the Customer remains liable for the actions and omissions of its Affiliates in connection with the Affiliates’ use of the Services.
Neither Party shall not use the trademarks, logos or trade names of the other Party for any purpose without the prior written consent of the other Party. Customer agrees that MessageBird, in its sole discretion and respecting any confidentiality undertaking in force between Customer and MessageBird, may, aligned with best industry practices, use Customer’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of demonstrating Customer’s use of the Services.
MessageBird confirms that it has all the rights in relation to the Licensed Material that are necessary to grant the rights it purports to grant under, and in accordance with, the terms of this Agreement.
Liability and Indemnification
Indemnification by MessageBird. MessageBird will defend, indemnify and hold Customer harmless from and against any claim and related fees and expenses (including reasonable attorney’s fees) made or brought against Customer regarding the Services, as made available by MessageBird under this Agreement to Customer, if the Services infringe any third-party patents, copyrights, trademarks, or other proprietary right under the laws of the Netherlands. If MessageBird receives information about an infringement related to the Cloud Communication Service, MessageBird may, in its discretion, and at no cost to Customer:
modify the Cloud Communication Service so that it no longer infringes or misappropriates,
obtain a license for Customer’s continued use of that Cloud Communication Service in accordance with this Agreement, or
terminate Customer’s use of that infringing Service upon thirty (30) days’ prior written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
The above defense and indemnification obligations do not apply to the extent a claim arises from or relates to:
the Customer and End-User data,
the Third-Party Applications,
the Customer’s or any user’s breach of this Agreement,
any modifications of the Service by or for Customer,
the use of the Cloud Communication Service in combination with another product or service not provided by MessageBird, or
the failure to timely implement any modifications, upgrades, replacements or enhancements made available by MessageBird to Customer.
This clause provides MessageBird’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any third-party claims related to the Service or this Agreement.
Indemnification by Customer. Customer shall be fully responsible, shall hold MessageBird fully harmless and shall fully reimburse MessageBird, without limitation, at its first demand, for all and any direct and/or indirect damages, costs, claims, expenses and other liabilities of MessageBird (including, but not limited to, fines, other penalties or damages resulting from any sanctions imposed on MessageBird or claims made against MessageBird, by any End-Users, and/or state authorities, Third-Party Applications and/or any other third parties) resulting from
any allegation that the use of the Cloud Communication Service by Customer results in any infringement of the rights of any third-party, including End-Users, law or regulation, and/or
Customer's breach of any of its obligations under this Agreement, and/or
any content in particular, any Inappropriate Content transmitted by Customer, any use of Third-Party Applications.
Indemnification Procedures. The indemnifying party’s obligations are conditioned upon the indemnified party (i) giving the indemnifying party prompt written notice of the claim to the extent possible, and (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense).
Exclusion of Liability. MessageBird shall in no way or manner be held responsible or liable to Customer, its contractual partners or End-Users for:
faults, errors or delays in the delivery, transmission, re-transmission or reception of, or parts thereof, the Services if this is not covered under the SLA;
for any content, in particular, any Inappropriate Content transmitted by Customer.
Limitation of Liability
MessageBird’s cumulative liability to customer for all claims arising from or relating to the Agreement or the Cloud Communication Service, whether in contract, tort, or relating to otherwise, will not exceed the total amount of all Fees paid to MessageBird in accordance with the Agreement and all orders hereunder during the twelve (12) months immediately prior to the date upon which any such liability arises. Customer acknowledges and agrees that the allocation of the risks under this Agreement is the essential purpose of this clause and that the Fees would be substantially higher if MessageBird were to assume any further liability other than as set forth in this Agreement.
Except if explicitly provided otherwise in this Agreement, no Party is ever liable (whether in contract, tort – including negligence – or otherwise) for indirect damages, consequential damages, loss of revenue, business, anticipated savings or profits, damages resulting from third-party claims or loss of data.
MessageBird makes no warranties, whether express, implied or statutory with respect to the Cloud Communications Services, the Platform or the Services and MessageBird expressly disclaims any implied warranties to merchantability, merchantable quality or fitness for a particular purpose.
MessageBird expressly does not guarantee that the Cloud Communication Services will be uninterrupted or error free, are received properly and/or on time by the end-user. Customer acknowledges in this respect that MessageBird only operates as a conduit for the transmission of electronic communications.
By using our Services, Customer represents and warrants that it is a company and/or business and has the power to enter into this Agreement. In case of any misrepresentation by Customer in regard to the aforementioned confirmation, MessageBird reserves the right to immediately withdraw from this Agreement, without being liable for any damages or costs related to such withdrawal.
Customer represents and warrants that it has full knowledge of and fully complies with all local requirements applicable to the use of the Cloud Communications Services in the jurisdictions where it operates.
The Customer guarantees and warrants that it has and will maintain all necessary licenses, consents and permissions necessary for the use of the Cloud Communication Service.
Except for the payment of Fees, each Party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control in the event (i) it could not have been avoided or corrected through (a) the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, labor strikes not involving either party’s employees, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third-Party Applications, failure of any third-party operating systems, platforms, applications or networks not under reasonable control of MessageBird, or (b) other similar occurrence; in addition, the Parties will be excused from future performance under this Agreement, if (ii) any Party becomes the subject or target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities, or (iii) the performance of any aspect of this Agreement would require a Party to this Agreement to engage in a transaction with a person that is or is owned fifty percent (50%) or more in the aggregate by any person that is the target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities or is otherwise subject to restrictive measures.
Both Parties acknowledge that any unauthorized use of the Cloud Communication or breach of confidentiality or intellectual property provisions herein may cause irreparable harm to the other Party, the extent of which would be difficult to ascertain. Accordingly, both Parties agree that, in addition to any other remedies to which a Party may be legally entitled to, either Party will have the right to seek injunctive relief in the event of such a breach.
Early Access and Beta products.
MessageBird may look for Customers to help test new services or new features. If MessageBird wishes for Customer to test early release or beta features/services, MessageBird will request whether Customer would like to test such early release or beta features/services in writing. Early access and beta products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.
The rights and obligations set out in the Agreement apply to the use of the Services in the Trial Period. Customer is entitled to terminate the Agreement before the Trial Period expires free of charge. Failure to terminate the Agreement before the end of the Trial Period, as per the terms and conditions indicated in the Dashboard, the Order Form, or on the Site will result in the applicable Fees to apply for the period agreed on the Site, Dashboard, or Order Form.
Dispute Resolution and Governing Law
Governing Law. This Agreement and any dispute or claim arising out of or in connection with this Agreement, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of The Netherlands.
Venue. Each Party irrevocably agrees that the competent courts of Amsterdam will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims).
Notices. The Parties shall give any communication or notice in writing and such notice or communication shall be sent by e-mail to the designated addresses of the relevant Party as mentioned in Order Form or in the Dashboard or, provided that email will not be sufficient delivery shall be by hand, sent by registered mail or courier. A notice shall be deemed to have been given upon on the first business day after sending by email. Customer will be deemed to have received any email sent to any such email address, upon MessageBird sending of the email, whether or not Customer actually receives the email.
Entire Agreement. This Agreement, as amended from time to time in accordance with this Agreement, represents the entire Agreement between the Parties in relation to the subject matter hereof and supersedes all prior agreements and understandings whether oral or written with respect to the subject matter hereof. The following annexes may be executed by the Parties:
Data Protection Annex (DPA)
No Partnership. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency between any of the Parties hereto and none of them shall have any authority to bind the others in any way.
Waiver. No failure to exercise nor any delay in exercising any right, power or remedy by a Party will operate as a waiver. A single or partial exercise of any right, power or remedy will not preclude any other or further exercise of that or any other right, power or remedy. A waiver will not be valid or binding on the Party granting that waiver unless made in writing.
Severability. If any provision or any part of this Agreement is or becomes in any way non-binding, the Parties will remain bound to the remaining part. The Parties shall replace the invalid or non-binding part by provisions which are valid and binding and the effects of which given the contents and purpose of this Agreement, are, to the greatest extent possible, similar to that of the invalid or non-binding part.
Changes and Modifications. MessageBird reserves the right to unilaterally change or modify any of the terms and conditions contained in this Agreement. MessageBird will make reasonable efforts to notify Customer of such changes, which may include posting an announcement on the website, in-application notices, or via email. Customer’s continued use of the Service following MessageBird’s posting or notice of the change(s) will constitute Customer’s acceptance of such change(s).
Assignment. Customer acknowledges that MessageBird will be entitled to assign the entirety of its rights and obligations under this Agreement:
within its group of companies to any Affiliate; or
to a third-party which acquires all or substantially all of the assignor’s assets entailed in the performance of the Cloud Communication Service; Any assignment of the rights and obligations under this Agreement of Customer shall be effective only with the prior written consent of MessageBird.
Hierarchy of Documents. If there is a conflict between any of the provisions of this General Terms and Conditions and the provisions agreed in an Order Form or in the Dashboard, the provisions in the Order Form or those contained in the Dashboard shall prevail.
Definitions and Headings. Capitalized terms defined in this Agreement shall have the same meaning in all Schedules hereto, save where the context requires otherwise.
Data Processing Annex (DPA)
This Data Processing Annex applies to all processing of personal data on End-Users that Customer provides to MessageBird through the Services.
Terms such as “personal data”, “processing”, “data controller”, “data processor”, “personal data breach” etc. shall have the meaning assigned to them under the applicable data protection legislation, such as the Regulation (EU) 2016/679 (General Data Protection Regulation), except for the definition of sub-processor which explicitly excludes telecom carriers and other telecom service providers which are deemed necessary for the operation of the Services, yet, due to the fact that such parties are acting as a mere conduit or as an independent data controller, do not fall under the definition of data processor as stated in the Data Protection Legislation. Additionally, the definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under the CCPA.
MessageBird and Customer both acknowledge and agree that the exchange of personal data between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this DPA. For the avoidance of doubt, MessageBird does not sell Customer’s personal data or the personal data of end users.
Customer and MessageBird both acknowledge and understand that with respect to the processing of personal data of end-users (‘data subjects’), which Customer exports to MessageBird for the provision of the Services, MessageBird acts as a data processor.
Customer hereby instructs MessageBird to process data subjects’ personal data to the extent required for the performance of the Services under the Agreement.
MessageBird shall, in relation to any personal data which is processed in connection with the Services:
process personal data only on documented instructions of Customer, unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to MessageBird to process personal data;
only provide personnel with ‘need to know’ access to the personal data and ensure that all such personnel who have access to or process personal data are under a legal obligation to keep the personal data confidential;
take appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the level of risk presented by the processing (and having regard to the nature of the personal data) and to the harm which might result from a personal data breach affecting the personal data;
provide Customer with any assistance as reasonably requested by Customer in order to allow Customer to comply with obligations of Customer under the Data Protection Legislation, including the notification of personal data breaches, security of processing and assisting Customer with the performance of any relevant data protection impact assessment;
provide Customer with reasonable assistance in order to allow Customer to comply with its obligations to data subjects who exercise their rights under the Data Protection Legislation. MessageBird will make available technical and organizational measures to allow Customer to fulfil these obligations via the account of Customer. Customer hereby acknowledges and agrees that requests sent by Customer via email are not considered as a valid means to exercise its rights and that any such requests will not be processed by MessageBird. For the avoidance of doubt, Customer as the data controller is responsible for processing any request or complaint from data subjects with respect to the personal data of a data subject;
at Customer’s choice, delete or return personal data and copies thereof to Customer on termination of Customer’s agreement with MessageBird, unless otherwise required by applicable laws;
maintain records as required under the Data Protection Legislation of the processing activities carried out under the Agreement and this DPA;
be prohibited from retaining, using, or disclosing the personal data for any purpose other than as specified in the Agreement, as set out in this DPA, or as otherwise permitted by the Data Protection Legislation, unless MessageBird is required to do so due to a legal obligation, in which case it will act as a data controller;
not further collect, sell, or use personal data except as necessary for the fulfillment of the Agreement.
at least every second year, audit the security and personal data processing activities of MessageBird, and provide Customer (on a confidential basis), upon its specific written request, with a summary or a description of the results of such audit. A summary of an ISO 27001:2013 audit report will be considered to fulfil the request of Customer. For the avoidance of doubt, the audit may either be an internal audit, or an audit performed by a third party, which decision shall, however, be in the sole discretion of MessageBird;
if the summary or description of the results of the audit provided by MessageBird to Customer, according to paragraph 2(j) of this DPA, gives Customer substantiated reasons to believe that MessageBird is in breach of its obligations under this DPA, related to the personal data provided by Customer, allow an independent and qualified third party appointed by Customer and approved by MessageBird, to audit the applicable personal data processing activities of MessageBird, provided that the terms under Clause 3 of this DPA are met; and,
notify Customer as soon as reasonably possible if MessageBird receives a notice or communication from a governmental or regulatory body which relates directly to the processing of personal data, as instructed and provided by Customer, by MessageBird or its (sub-)processors, unless notifying Customer of such notice or communication is prohibited by law.
notify MessageBird at least two (2) months before exercising the audit right of Customer under paragraph 2(k) of this DPA;
ensure that any audit does not unreasonably disrupt the business operations of MessageBird; and,
bear and pay for all costs of such an audit.
Customer represents and warrants that it has provided notice to the End-User that the personal data is being used or shared in accordance with the terms and conditions envisaged in Section 1798.140(t)(2)(C)(i) of the CCPA. Customer is responsible for compliance with the requirements of the CCPA applicable to it as a data controller.
If Customer acts as a data controller, Customer guarantees that all processing activities are lawful, have a specific purpose, and any required notices and consents or otherwise appropriate legal basis are in place to enable lawful transfer of personal data. If Customer is a data processor (in which case MessageBird will act as a sub-processor, Customer ensures that the relevant data controller guarantees that the conditions listed in this clause are met.
Given the nature of the Services, the use of the Services by Customer and Customer’s End-Users may require the transfer of personal data outside the EEA; when the performance of the Services involves a transfer of personal data to sub-processors outside the EEA, Customer hereby gives MessageBird a mandate for the term of all agreements in place between Customer and MessageBird to enter into EU Model Contract Clauses with sub-processors outside the EEA on behalf of Customer, if no other appropriate transfer mechanisms under the Data Protection Legislation apply.
By means of this clause, Customer gives MessageBird a general written authorization for the engagement of any other third parties as new sub-processors for the processing of personal data, subject to the terms of this DPA. MessageBird will not engage any sub-processor in the processing of personal data under this Agreement without prior informing Customer of any intended change concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes. Customer may reasonably object to MessageBird’s use of a new sub- processor (where using such a new sub-processor would weaken the protections for Personal Data provided in this DPA) by notifying MessageBird promptly in writing within five (5) business days’ notice period. Such notice shall explain the reasonable grounds for the objection. Where Customer objects to the new sub-processor, MessageBird shall work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed sub-processor. If MessageBird is unable to make such change available within thirty (30) business days from MessageBird’s receipt of Customer's notice, either party may terminate the applicable features of the services which cannot be provided by MessageBird without the use of the proposed sub-processor.
Customer specifically agrees to the engagement of the entities listed at https://www.messagebird.com/en-gb/legal/privacy#processorList as sub-processors of MessageBird for the processing of personal data. MessageBird shall update the list of sub-processors when a new sub-processor for the processing of personal data is engaged.
MessageBird will take all available and appropriate contractual measures to ensure that when a sub- processor is engaged:
the sub-processor will only process personal data if such processing is necessary for performance of the Services or a part thereof, and comply with the specific instructions stated in the Agreement, and;
data protection obligations providing similar protection as those in this DPA shall be imposed on the sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation.
MessageBird remains liable to Customer under this DPA for the performance of the data protection obligations of its sub-processor.
MessageBird hereby certifies that it understands all its contractual restrictions set out in the CCPA and will comply with them, to the extent applicable.
Details of the processing:
Subject matter and purpose of the processing: provision of the Services of MessageBird to Customer.
Categories of personal data: information on End-Users that Customer provides to MessageBird through the Services.
Categories of data subjects: data subjects can include customers of the Customer, employees, suppliers, and any other natural person who is the End-User of Services, from whom Customer provides personal data through the use of the Services.
Duration of the processing: personal data will be processed for as long as required for the performance of the Services, or as required under applicable law.
This Data Processing Annex is governed by the laws of The Netherlands, and the Parties submit to the exclusive jurisdiction of Amsterdam courts for all purposes connected with this DPA, including the enforcement of any award or judgement made under or in connection with it.