Terms and Conditions

This Service agreement ("Agreement") regulates the terms and conditions of using Messente messaging platform ("Service”) and is entered into by You ("User") and Messente Communications OÜ ("Messente") located at Akadeemia 3, 51003 Tartu, Estonia (hereinafter jointly referred to as “Parties”). “User” shall refer to You and the legal entity You duly represent as well as the officers, employees, agents, representatives and advisors that use the Service under this Agreement collectively.

By entering into this Agreement the User represents that it wishes to use the Service provided by Messente, namely the acceptance, storage and onward delivery of SMS messages.

The Agreement includes the privacy policy and the Data Handling Policy.

By registering for or using the Service the User acknowledges having read and fully understood the Agreement. By registering for or using the Service the User also agrees to having entered into the Agreement and agrees to be bound by the terms in the Agreement,the Privacy Policy and the DPA.

By entering into this Agreement the User confirms being at least 18 years of age and having adequate legal capacity to enter into the Agreement. The User confirms that they have the right to represent their employer in registering for an account to use the Service and the right to bind their employer to this Agreement. The User will use the Service only for lawful purposes, in accordance with the Agreement and the instructions provided on Messente’s website http://www.messente.com ("Website"), as amended from time to time.

2.1. In order to use the Service Messente may ask for some information from the User (company name, contact information etc.). The User warrants that all the information provided to Messente is current, complete and accurate to the best of the User’s knowledge.

2.2. For fraud prevention, anti-spam and scam avoidance purposes Messente may request the User to provide additional information to verify the identity of the person using the Service. This may include, but is not limited to, copies of registration documents or registry out-takes, personal references from known associates, copies of identification documents, bank guarantees etc. This data will be handled according to the Data Handling Policy of Messente.

2.3.Messente may ask the User to provide their phone number for the purposes of user verification. In such cases, Messente will use the phone number provided by the User for user verification purposes only. This includes sending an SMS message (or any mobile short message) containing a PIN code or a one-time password (OTP)  as a part of the user verification process.

2.4. Messente reserves the right to suspend or stop any User from using the Service in case the information provided by the User is found to be outdated, incomplete or inaccurate.

2.5. Messente retains the right to delete the User’s account and the accompanying data, if the User has not logged into or has not used the User’s account in any way for more than 12 months. The User will be notified via the account dashboard and via the email address provided under the account information 30 days prior to account deletion.

2.6. In case the information provided to Messente by the User should change the User shall notify Messente without undue delay.

2.7. The User shall not circumvent or attempt to circumvent the user authentication systems and other security and verification features used by Messente. The User is solely responsible for all all events and activity which occur while or as a result of the User using the Service and is solely responsible for the payment of any charges incurred as a result of the User using the Service.

2.8. The User is responsible for maintaining the confidentiality of passwords, login credentials and any information regarding the Service or the User’s personal account. The User is to immediately notify Messente (messente@messente.com) of any unauthorized use of the User’s password or account of which the User is aware of. Failure by the User to uphold security of the User’s account information shall give rise to liability in accordance with the section Limitation of Liability contained herein.

2.9. The User acknowledges that all messages sent using the Service are transmitted in an unencrypted format. The User shall not transmit any messages the content of which must be encrypted in accordance with the law or due to the nature of such content through the Service. The User shall fully indemnify Messente of any cost or damage that arises due to the breach of this clause 2.9.

3.1. Under any circumstances the User shall not use the Service to transmit any messages which:
(a) are unsolicited, meaning sending messages to recipients who have not explicitly requested to receive messages from the User,
(b) contain content deemed illegal by the laws of Estonia and/or the laws of the recipient’s country,
(c) are unlawful, harassing, defamatory, abusive, indecent, threatening, harmful, vulgar, obscene, sexually orientated, racially offensive, profane, pornographic, abusive, misleading, threatening or otherwise intending to cause distress, annoyance, inconvenience, worry or upset to the recipient,
(d) contain copyright, trademarks or other intellectual property without the written permission to use such of the holder of intellectual property rights attached thereto,
(e) may bring Messente’s or Messente’s affiliates’, officers’, employees’, agents’, contractors’ or representatives’ name and/or brand into disrepute,
(f) contain malware, viruses, trojans, worms, keyloggers and other malicious code or links thereto.

3.2. The User agrees that sending P2P messages via the Service is not allowed. P2P messages and messages described in subclauses (a) to (f) of clause 3.1. shall be referred to as Prohibited Messages.

3.3. The User is to immediately notify Messente of any Prohibited Messages having been sent using the Service, upon having come to the knowledge thereof, and is to provide all reasonable assistance requested by Messente to prevent and/or rectify any damage or potential damage arising due to the sending of Prohibited Messages. The User is solely liable to pay any fines, damages, losses, costs or penalties, and defend and fully indemnify Messente against any action, arising out of the sending of Prohibited Messages in accordance with Section 6 of this Agreement. If the User transmitted a Prohibited Message on behalf of another party (“Originator”), in addition to other steps envisioned in this Agreement, the User shall suspend such Originator without undue delay.

3.4. As a result of Prohibited Messages being transmitted using the Service, Messente may at its discretion temporarily suspend the account which has been used to send such messages until the matter is resolved to the satisfaction of Messente. If necessary considering the circumstances, in Messente’s sole discretion, Messente may terminate the User’s account and this Agreement, with immediate effect and no liability arising on the part of Messente. In case of such termination, prepaid fees shall not be refunded.3.5. For the avoidance of doubt, the indemnification obligation envisioned in clauses 3.3 and 6.2 shall be valid regardless of whether the sending of Prohibited Messages was undertaken by the User or by another person using the User’s account.

4.1. The User shall pay Messente a monthly subscription fee (“Platform Fee”) in accodance with the then-current Messente pricelist and a per-SMS message fee (“Message Fee”) for every message sent through the Service (Platform Fee and Message Fee collectively referred to as “Fees”). The Fees shall be calculated by reference to the usage data recorded by Messente. Message Fee is subject to changes without prior notice.

4.2. Upon registering an account with Messente for the first time, the User shall be provided with credits for the purpose of testing the functionality of the Service (“Test Credits”).

4.3. Test Credits shall expire in 3 months counting from the date the Test Credits are credited to the User’s account, and any unused Test Credits shall be removed from the User’s account. If the User has not provided full and correct information when registering an account Messente reserves itself the right, at its discretion, to remove the Test Credits from the User’s account. Test Credits, including unused Test Credits, shall expire after deletion of the User’s account by the User or by Messente due to account inactivity in accordance with clause 2.5.

4.4. All Fees are payable in advance. The User shall not be able to use the Service until all due payments have been received by Messente. Payments for using the Service can be made by bank transfer or through a payment gateway using a credit card. Other payment methods may be accepted at the sole discretion of Messente.

4.5. If the User makes the payment using a credit card, the information associated with the credit card shall not be visible to nor accessible by Messente. In the case of credit card payments the User will be directed to a secure environment provided by the credit card payment operator.

4.6. Messente retains the right to change the payment conditions, including but not limited to the Fees and/or the structure of Fees for any reason, including but not limited to fluctuations in prices charged by operators of telecommunications networks and infrasctructure and changes in industry trends, without prior notice to the User. The User shall be able to view the then current Fees at any time in the dashboard available at dashboard.messente.com.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MESSENTE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THE SERVICE AND ANY REPRESENTATION, WARRANTY OR GUARANTEE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY OR FREEDOM FROM ERRORS. MESSENTE SHALL MAKE REASONABLE EFFORT TO CORRECT MATERIAL ERRORS UPON BEING NOTIFIED THEREOF BY THE USER, AND THIS SHALL BE THE USER’S SOLE REMEDY VIS-À-VIS SUCH MATERIAL ERRORS.

6.1. Messente shall indemnify, including reasonable attorney fees, and hold harmless the User against any suit, action, claim or proceeding arising out of or in connection with Messente’s breach of third party Intellectual Property Rights. In order for Messente’s indemnification obligation to be applicable, the User shall immediately notify Messente of any such suit, action, claim or proceeding brought against the User by a third party, shall fully turn over the defense of the suit, action, claim or proceeding to Messente, shall cooperate with Messente in the defense of the suit, action, claim or proceeding and shall not accept any settlement, agreement or judgment without Messente’s prior written consent. Messente’s indemnification obligation provided herein shall not be applicable if the suit, action, claim or proceeding arising out of or in connection with (i) the User's misuse of the Service or use of the Service in breach of this Agreement, (ii) any modification made by the User or a third party acting on the User's behalf of the Service made without the knowledge and prior written consent of Messente, (iii) use of the Service in combination with other software, application, plugin or any other third party code, (iv) the content the User uploads to, transmits or uses through the Service, (v) any illegal or unlawful conduct by the User when using the Service.

6.2. The User shall indemnify, including reasonable attorney fees, and hold harmless Messente against any suit, action, claim or proceeding arising out of or in connection with the User's use of the Service, also including but not limited to the sending of Prohibited Messages in breach of Section 3 of this Agreement. In order for the User's indemnification obligation to be applicable, Messente shall immediately notify the User of any such suit, action, claim or proceeding brought against Messente by a third party, shall fully turn over the defense of the suit, action, claim or proceeding to the User, shall cooperate with the User in the defense of the suit, action, claim or proceeding and shall not accept any settlement, agreement or judgment without the User's prior written consent. Specifically, the User shall indemnify, including reasonable attorney fees, and hold harmless Messente against any suit, action, claim or proceeding arising out of or in connection with the content the User uploads to, transmits or uses through the Service or arising out of or in connection with the User's use of the Service in breach of the law.

7.1. Neither Party shall be liable, explicitly or implicitly, for any indirect, special, consequential, incidental or punitive damages, loss of profit and revenue, loss of business opportunities, loss of production, loss of reputation, with the exception of such damages caused by gross negligence or willful malicious conduct.

7.2. The direct liability of the Parties shall be limited to the fees actually paid to Messente by the User over a period of twelve (12) months preceding the event out of which direct liability arose. For the avoidance of doubt, Messente shall have no liability arising out of any damage, loss or interruption caused by circumstances out of Messente’s control, including but not limited to disruptions in telecommunication networks and interruptions caused by telecommunications networks providers. Notwithstanding the foregoing, the User shall be fully liable for any direct damage, cost or loss sustained by Messente or a third party as a result of the User using the Service in violation of this Agreement or in a grossly negligent or wilfully malicious manner or any person other than the User using the Service with the User’s account information.7.3. Messente shall not be liable for any faults in the delivery, transmission, re-transmission or reception of SMS messages, if such faults are attributable to telecommunication networks operators, carrier or third parties.

8.1. This Agreement shall be considered as accepted and entered into by Messente and the User on the date of registration of the User account with Messente for a term of one (1) year (“Initial Term”). After the Initial Term ends, this Agreement shall renew automatically for successive periods of one (1) year (“Renewal Term”) unless the User notifies Messente of termination at latest thirty (30) days prior to the date of renewal. During the Initial Term this Agreement may not be terminated by the User unless for reasons of material breach of this Agreement by Messente. During each Renewal Term the User may terminate this Agreement with or without cause by providing Messente with a thirty (30) day termination notice.

8.2. Any Fees pre-paid by the User shall not be refunded. Payment obligations that accrued prior to termination shall stay in force until fully satisfied. Sections 5, 6, 7 and 9 shall survive termination of this Agreement indefinitely. Any obligations arising out of the DPA shall survive termination of this Agreement until such obligations have been completely fulfilled.

9.1. The Intellectual Property Rights belonging to either Party, including but not limited to copyright, trademarks, logos, names, and others shall remain vested in the Party to whom the Intellectual Property Rights originally belonged and nothing in this Agreement shall be construed as a license to use the other Party’s Intellectual Property Rights except for the purpose of fulfilling this Agreement and providing the Service and only for the duration of this Agreement.

9.2. Neither Party shall use the other Party’s Intellectual Property for any purpose other than the fulfilment of its obligations or the enforcement of its rights under this Agreement, unless the other Party gives written consent to do otherwise.

10.1. All of the terms in the Agreement and on the Website including the pricing are subject to change by Messente at any time without prior notification.

10.2. Any such changes become effective immediately after being published by Messente on the Website. For being informed of all such changes revising the Website and the Agreement regularly is strongly recommended.

10.3. By continuing to use the Services after the amended terms and pricing in the Agreement or on the Website have been published the User automatically agrees to being bound by such amended terms and pricing.

11.1. This Agreement is governed by the laws and courts of Estonia, with all dispute resolution conducted in Estonia, in Tartu County Court, in accordance with the applicable laws. The User agrees that the English language version of the Agreement will govern the relationship between the User and Messente. All translations from the English language Agreement to some other language are provided for convenience. In case of any contradictions between the English language version of the Agreement and any translations the English language version shall take precedence.

11.2. Parties shall not be responsible for total or partial default on their obligations hereunder where such default occurs due to the impact of force majeure circumstances. The Parties shall construe force majeure circumstances as circumstances which a Party could not foresee at the time of concluding the Agreement and could not prevent or remove with any means whatsoever. Such circumstances shall be: natural calamities, strikes, fires, war, lawful or unlawful decisions of public authorities, etc.

11.3. No Waiver. When a Party does not pursue a remedy or exercise a right accorded to it in law or under this Agreement, this shall not be construed as a waiver of such remedy or right and shall not affect the enforceability of the rights, obligations and remedies accorded in law or under this Agreement.

11.4. Severability. If any provision in this Agreement is at any time found to be in conflict with applicable law, such provision shall be struck from this Agreement without affecting the enforceability of the rest of this Agreement and shall be promptly replaced by the Parties with a provision that complies with applicable law and fulfils the purpose and intent of the struck down provision.

11.5. Force Majeure. Under no circumstances shall either Party be held responsible or liable, whether directly or indirectly, in connection to any occasion or delay or failure in performance resulting from causes beyond its control including, without limitation, strikes, labor disputes, riots, insurrections, civil disturbances, fires, flood, storms, explosions, utility curtailments, power failures, acts of god, war, governmental actions or any causes out of control of the Parties reasonable control. Messente shall use commercially reasonable means to mitigate or eliminate any adverse effects of such force majeure events it may have on its obligations hereunder.

11.6. No publicity. Neither Party may use the other Party’s logo, name, trademark or the existence of the business relationship established by this Agreement as a reference for marketing purposes without the prior written consent of the other Party.