Terms Of Service
Mobivate Limited, including, divisions, contractors, third parties and suppliers, (collectively "Mobivate", "we", "us" or "our") welcomes You (“You” or “Your”) to www.mobivate.com (the "Website"). These terms and conditions of service (collectively, with Mobivate's Data Processing Agreement under the European General Data Protection Regulation (GDPR), located at www.mobivate.com/legal/dpa, the "Terms of Service" or "Agreement") govern Your use of the Website and the services, features, and all software applications operated by Mobivate (together with the Website, the "Services").
Please read these Terms of Service carefully before using the Services. These Terms of Service apply to all users of the Services. If You are using the Services on behalf of an entity, organization, or company, You represent and warrant that You have the authority to bind such organization to these Terms of Service and You agree to be bound by these Terms of Service on behalf of such organization. Agreeing to use the Services by clicking "Sign up" or by obtaining access to any of the Mobivate software applications constitutes Your acceptance and agreement to be bound by these Terms of Service.
These Terms of Service provide that any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation, shall be governed by and construed in accordance with the laws of Guernsey. You agree to the exclusive jurisdiction of the courts of Guernsey for the purpose of hearing and determining any suit, action or proceedings and/or settling any disputes arising out of or in connection with this Agreement.
If any provision or provisions of these Terms of Service shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
Mobivate reserves the right, at any time and from time to time, to amend or to modify these Terms of Service without prior notice to You, provided that if any such alterations constitute a material change to these Terms of Service, Mobivate will notify You by email. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, You agree to be bound by such amended or modified Terms of Service.
Mobivate provides a sophisticated bulk SMS solution and will receive and deliver SMS messages sent to and from cellular telephones, on Your behalf. You will provide the mobile phone numbers and content of messages to Mobivate. A message receipt, if applicable, shall be provided by Mobivate.
Mobivate shall be entitled to charge the fees as indicated in the Mobivate portal to which You shall be given a unique username and password to access. Pricing may be changed due to various market related changes (e.g. changes out of Mobivates control, like networks changing fees). All fee changes will be communicated via email.
You are liable to pay Mobivate the fees and charges as indicated in the Mobivate portal for the number of messages sent in accordance with the Mobivate server count. Mobivate is not responsible for Your encoding errors, which lead to messages forcing into concatenated mode and resulting in multiple submissions per message. Virtual numbers, opt-out URLs and shortcodes will be charged monthly or quarterly in advance. URL shortening will be charged on a per message basis as indicated in the Mobivate portal in accordance with the Mobivate server count.
Security and Access
Mobivate agrees to allow You to use the platform and API solely to utilise Mobivate’s Services. You will comply with all reasonable directions of Mobivate when accessing the Services. You are responsible for the security of usernames, passwords and login details that Mobivate provides to You and shall not disclose them to a third person without notifying Mobivate. You must not use, or permit others to use the Services to send prohibited content and or to circulate or send any unauthorised marketing, publicity or advertising material to any person.
No refunds are made except refunds covering the value of credits not yet expired in the event that Mobivate's Services become unavailable (terminated or blocked) or degraded in quality, provided that such degradation or termination was not the result of complaints and/or actions by mobile network carriers related to the nature of messages submitted by You, and You were not in breach of any terms incorporated herein. In the event that Mobivate's Services become unavailable, Mobivate will have 4 weeks to find a solution of comparable quality before a refund becomes due and payable.
Content prohibited by International laws or the local law of the recipient is not permitted.
Commercial Advertising and SPAM policy
You shall only send solicited content and promotional messages when using Mobivate Services. You shall only send messages to recipients who have opted in to receive messages. If You breach the obligations herein provided, Mobivate reserves the right to suspend the Services provided to You accordingly, without refund.
You undertake that You will not knowingly use the Services for any illegal, immoral, or improper purposes or in any other manner which contravenes any third-party rights, any laws or requirements of a Regulator in the appropriate jurisdiction, or in any way which is indecent or offensive or in any way that could be considered as spamming and undertake not to allow any third-party to do so.
You shall keep Mobivate indemnified in the event that Mobivate is penalised or claims, demands, actions or administrative proceedings that have been brought against Mobivate due to non-compliance of the clause stated herein. As an illustration, in the event that Mobivate is penalised or claims, demands, actions or administrative proceedings have been brought upon by other regulatory bodies as well as the mobile operators of the specified countries, including but not limited to delivery of unsolicited SMS, then Mobivate have the right to claim from You all amount paid as penalties and/or claim all costs and expenses accrued to answer such claims, demands, actions or administrative and legal proceedings.
Indemnity and Warranties
For the purposes of this clause 7, "Data Protection Legislation" means (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, Guernsey and/or any other relevant jurisdiction in the European Union, together with any national implementing laws, regulations and secondary legislation as amended or updated from time to time in the UK, Guernsey and/or any other relevant jurisdiction in the European Union including the Data Protection Act 2018 in the UK (“DPA”); and (ii) any successor legislation to the GDPR and the DPA.
You are fully responsible for the content submitted through Mobivate’s systems, its nature, timing and other specifics nature. You warrant that all content You submit through Mobivate’s systems (including but not limited to SMS sent via Mobivate’s bulk SMS solution): (i) is sent only to recipients who have provided consent to receive the content in line with the Data Protection Legislation, where such consent is required; and (ii) contains a link or similar to enable the recipient to unsubscribe from further communications from You, as required by the Data Protection Legislation, and You warrant that You will comply with any unsubscribe request received.
You agree to indemnify and keep Mobivate harmless of any claims, monetary or otherwise, and/or damage compensation awards by or in favour of:
- the subscribers receiving Your messages
- network operators originating or terminating Your messages
- copyright owners or any other private individuals, organisations or businesses that may have received, passed through, processed or otherwise had any relation to messages originated from any devices or systems with Your IP addresses / IP address ranges or account name
including but not limited to any losses, costs, damage or expenses incurred by Mobivate as a result of the content submitted by You (including but not limited to fines imposed on Mobivate pursuant to the Data Protection Legislation) and any breach of the warranties set out above in this clause 7.
The Customer agrees to assume full liability and pay any and all penalties and/or fines that Mobivate shall be sanctioned to by any regulatory body or otherwise, by virtue of Customer breach of this Agreement.
Mobivate warrants that:
- services will be performed with the necessary care and skill
- it will process Your confidential information solely in connection with the Services and shall not process and use it for any other purpose whatsoever
- it has state of the art security measures against unauthorized access to Your confidential information
- it uses reasonable endeavours to ensure policies and procedures are in place to meet relevant data protection regulation and best practice
Breach of Terms
If You breach any of the above terms and conditions or any signed addendum, Your account may be temporarily suspended or restricted, without Mobivate giving You prior notice. Repeated violations will lead to permanent disconnection (termination) of Your accounts and service with us, without recourse, refund or obligations on Mobivate’s part.
Confidentiality and Data Protection
For the purposes of this clause, “personal data” and “processed” shall have the meanings set out in the Data Protection Legislation (defined in clause 7 above).
Mobivate and You shall treat all material and information, as confidential and shall not disclose such confidential information to a third party without a prior written consent of the other party. Mobivate agrees to keep all Your data, messages and mobile numbers strictly confidential at all times and never share them with any other party for any reason, whatsoever, unless required by law or agreed to with You in writing.
To enable Mobivate to respond to queries received from You or a supervisory authority about campaigns, Mobivate shall retain any personal data relating to message logs and contact lists, as follows:
Following the end of a campaign pursuant to which Mobivate has received and delivered SMS messages on Your behalf, which it has processed in order to provide the services, Mobivate shall retain message logs for a period of 6 months.
Contact lists that have not been used by You, shall be retained by Mobivate for a period of 18 months before being deleted.
You shall be able to access the personal data via Mobivate’s portal relating to:
- message logs for the first 3 months, following the end of a campaign, after which the message logs shall be archived by Mobivate for an additional 3 months and only available to You upon written request. Following the end of the 6 month period, Mobivate will delete the message logs, unless otherwise requested by You
- contact lists that have not been used, for the first 12 months, after which the contact lists shall be archived by Mobivate for an additional 6 months and only available to You upon written request. Following the end of the 18 month period, Mobivate will delete the contact lists, unless otherwise requested by You
If You wish for Mobivate to retain the personal data for a longer period than described above, Mobivate and You shall agree whether such retention would comply with the Data Protection Legislation and, if so, the period of time for which Mobivate shall retain: (i) message logs and customer history; and (ii) contact lists, will be determined.
Mobivate may encrypt personal data following written request from You and shall agree in writing in advance additional fees payable by You to Mobivate for encryption.
To the extent Mobivate is acting as Your data processor (as defined in the General Data Protection Regulation 2016), Mobivate shall process personal data on Your behalf in accordance with the commitments given by Mobivate in its Data Processing Summary available at www.mobivate.com/legal/dpa.
Intellectual property rights
Notwithstanding the foregoing, all trade and service marks, inventions, patents, copyrights, registered designs, design rights, and all other intellectual property rights as existing prior to this Agreement shall, be and remain in the ownership of the relevant party. Except as expressly stated otherwise in this Agreement, nothing herein shall confer or be deemed to confer on either party expressly, implied or otherwise, any rights or licenses in the intellectual property of the other.
Limitation of Liability
Mobivate shall not be liable for:
- any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement
- any loss of data, business, profits or goodwill and costs of procurement of substitute goods or services, even if Mobivate has been aware or advised of the possibility of such damages
- any losses incurred by You due to the non-delivery of message or delivery receipts for any reason, whatsoever
- any loss (to the extent permitted by the law) or damage suffered or incurred, directly or indirectly, as a result of reliance upon the delivery of the sms message or delivery receipts.
Contact Information – firstname.lastname@example.org