“TERMS & CONDITIONS”
a) “Account” shall mean the account allotted to a user after his/her/its registration for use of services.
b) “Agreement” shall mean this Agreement for adherence to the terms and conditions by user as amended by ValueFirst from time to time.
c) "Application Services" mean Consumer Centric & Enterprise Centric services based on current and future mobile applications on SMS medium.
d) "Effective Date" means the date of commencement of the services under this Agreement.
e) "MO SMS" means mobile originating SMS.
f) "MT SMS" means mobile terminating SMS.
g) "Push Services" means messages sent by any user by using the tools or website or by using application interfaces provided by ValueFirst by calling the appropriate URL (HTTP/HTTPS) or via manual upload or in any other way as may be agreed between the Parties.
h) "Response" means message sent by a subscriber on a designated short code through SMS.
i) "SMS" or "Short Messaging Service" means text-messaging services provided by sendsmart.com/velocityonweb.com to the user.
j) "Spam" shall mean sending un-solicited information of any kind by user under the applicable laws.
k) "Successful submission" shall mean the event of submission of SMS by ValueFirst to Operators SMSC for delivery to the Mobile Subscriber.
l) “Service” or “SMS Service” shall mean all Tools and SMS Services provided for the Account to send SMS Alerts and messages over the internet.
m) “Terms and Conditions” shall mean the terms and conditions of this Agreement.
n) “User” shall mean the person (natural or artificial) using the Service and/or registered with sendsmart.com/velocityonweb.com for use of the Service.
o) “ValueFirst” shall mean ValueFirst Digital Media Private Limited, a Company incorporated under the Companies Act, 1956, and having its registered office at 1E/18, 4th Floor, Noble House, Jhandewalan Extension, New Delhi 110055 or such other office as ValueFirst may change from time to time under the provisions of the Companies Act, 1956 (which term shall unless be repugnant to the context or meaning thereof shall mean and include its successors and assigns).
The headings herein are for convenience only and shall not affect the interpretation of this agreement.
ValueFirst provides its service to the user, subject to the following Terms and Conditions, which may be updated by ValueFirst from time to time without any notice to the user. User should review the Terms and Conditions from the Terms and Conditions link in the signup page.
ACKNOWLEDGMENT & ACCEPTANCE
1. By Registering to the services of ValueFirst on sendsmart.com/velocityonweb.com, user agrees that user has read and understood this Agreement ("Agreement") and that registration in the service shall confirm to its terms and conditions ("Terms").
2. The service is operated by ValueFirst as defined herein above.
3. It is accepted that the user desires to access and use sendsmart.com/velocityonweb.com SMS Platform to use Push AND PULL SMS Services.
By accessing or using the service, user agrees to be bound by the terms and conditions set forth below as well as the terms and conditions published on the sendsmart.com/velocityonweb.com (the "site"). If user does not wish to be bound by these terms and conditions, user may not access or use the service. ValueFirst may modify this agreement at any time, and such modifications shall be effective immediately upon posting of the modified agreement at the site. User agrees to review the agreement periodically to be aware of such modifications and user’s continued access or use of the service shall be deemed user’s conclusive acceptance of the modified agreement.
The user also must comply with the usage policy as per the Telecom Regulatory Authority of India, policies in effect from time to time. The website current policies can be checked in the TRAI website http://www.trai.gov.in.
I. THE SERVICE
a. ValueFirst provides the SMS Service with the capability to send SMS to mobile phones via the World Wide Web on the sendsmart.com/velocityonweb.com. ValueFirst may terminate, change, suspend or discontinue the SMS Service, including the availability of any features of the Site, at any time;
b. Although ValueFirst has business arrangement with all major mobile service providers OR aggregators (provisioning of services might be effected on revoke of business arrangement with any of the service providers);
c. ValueFirst may from time to time provide additional services OR remove some services according to the sole discretion of ValueFirst;
d. ValueFirst has the right to withdraw this or any of its services offered with a 1 week notice by email OR by sending SMS to the user’s number OR through FAX.
II. MEMBER ACCOUNT
a. Accounts are not available to minors or any person who cannot legally agree to the terms of this Agreement. By accepting these terms, user confirms that user is capable of entering into a binding agreement;
b. User must accurately complete any subscriber information requested by ValueFirst. The SMS Service is intended to appeal to a broad audience, and therefore it is the responsibility of the parent or guardian to determine whether any of the ValueFirst Services are appropriate for his/her child;
c. To open an account for usage of the SMS Service, the User must provide true and accurate information as labeled by the Registration Form and shall labelly update such information to keep it true and accurate. The User shall choose a user name and a password will be sent to the email address indicated in his/her/its registration form;
d. The User is solely responsible for the privacy, confidentiality and storage of username and password;
e. All activities that can be traced to the username and password of the User are deemed as having performed by User;
f. ValueFirst does not assume any liability for content of messages sent and is exempt from any claim that may arise from third parties as a result of message sent;
g. User is fully responsible for any charges and liabilities incurred through the use of the Service or user’s Account and for any activities conducted through Your Account;
h. In addition, ValueFirst may temporarily disable access to user’s Account if user reports unauthorized use or if usage of the Account dramatically exceeds normal usage patterns within a short time period. The User agrees to notify ValueFirst immediately of any unauthorized use of the account at sendsmart.com/velocityonweb.com.
III. USE OF ACCOUNT
a. User and other users of User’s Account must comply with all applicable laws and regulations in using the SMS Service. User may not use the SMS Service for any of the following purposes or in any of the following manners: (i) to impersonate or harass any other person; (ii) to send any information that is or the disclosure of which would libelous, abusive, threatening, false, fraudulent, misleading, or obscene; that misappropriates or infringes any person's proprietary right (including posting any links or URLs that user does not have the right to post or disclose); (iii) that violates any person's rights of privacy or publicity, (iv) to send messages that contain any sexual, racist or discriminatory content constituting harassment of any individual or organization, (v) that constitutes or that violates any law, statute, ordinance or regulation (including applicable export control, consumer protection, unfair competition, anti-discrimination or false advertising laws, and without limiting the foregoing, user specifically agrees to comply with all applicable laws regarding the transmission of the technical data exported from the INDIAN REPUBLIC the country in which user resides; (vi) to intercept any communications not intended for the user; (vii) to release, post, distribute or execute any viruses or other harmful computer code; or (viii) to upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party or (ix) to engage in "spamming," transmission of "junk SMS" or "chain letters" or unsolicited mass distribution of SMS or any similar conduct;
b. ValueFirst does not control the data, information or other postings provided by other users that are made available through the SMS Service. You may find other user’s information to be offensive, harmful, inaccurate, or deceptive or to otherwise violate this Agreement. User shall use caution and common sense when using the SMS Service or relying on any data, information or other postings provided through the SMS Service;
c. At ValueFirst’s option and without further notice, ValueFirst may use anti-spam technologies, such as automatic word and spam filters, that may terminate messages user sends without delivering them or prevent messages from reaching user. User may not use the SMS Service in a way that imposes an unreasonable or disproportionately large load (as determined by us in light of the purposes for which user is using the SMS Service and the load imposed by other users generally) on our infrastructure or that otherwise would harm or breach our arrangements with any of our service providers;
d. User hereby acknowledges that ValueFirst may establish general practices and limits concerning use of the SMS Service, including without limitation the maximum number of days that messages or other uploaded content will be retained by the SMS Service, the maximum number of messages that may be sent from or received by an account on the SMS Service, the maximum size of any message that may be sent from or received by an account on the SMS Service, the maximum disk space that will be allotted on the SMS servers on user’s behalf, and the maximum number of times (and the maximum duration for which) user may access the SMS Service in a given period of time. User agrees that ValueFirst has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the SMS Service. User acknowledges that ValueFirst reserves the right to log off accounts that are inactive for an extended period of time. User further acknowledges that ValueFirst reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice;
e. User agrees that ValueFirst may terminate User's Account and use of the SMS Service (and other ValueFirst services) if ValueFirst believes User has in any manner (i) violated the terms and conditions of this Section 4, (ii) violated the SMS Service Terms and Conditions or the Terms and Conditions of the Site or any other service offered by ValueFirst, (iii) violated this Agreement, (iv) provided ValueFirst false, inaccurate or incomplete not current information, or (v) violates any applicable law, regulation or rule of any state or country.
b. User must comply with the usage policy as per the Telecom Regulatory Authority of India, policies in effect from time to time. The website current policies can be checked in the TRAI website http://www.trai.co.in;
c. Its user’s responsibility to Check and Comply with TRAI policies from time to time;
d. As holder of an Account, user, for use of the ValueFirst SMS Service will abide by the regulations of Telecom Regulatory Authority of India (TRAI) on telemarketers making calls OR SMS to numbers registered in "Do Not Call" list under "Telecom Commercial Communications Customer Preference Regulations, 2010", including any amendments thereto;
e. All telemarketers will have to verify the telephone numbers list with the NDNC registry before making a call OR sending SMS. Each telemarketer will have to register with NDNC Registry to avail of the facility of scrubbing their calling list;
f. As per TRAI (Telecom Regulatory Authority of India, www.trai.co.in) as holder of an Account, user will make sure that user, its Company and its Customers would not use Numeric Sender ID and get the Sender ID list to be approved from TRAI CLI for SMS Communications. Only Sender ID approved will be allowed to use;
g. Request for Sender ID will be accepted only through written request with company documents and Allotment of Sender ID will be governed by the TRAI rules or rules in effect from time to time by various government bodies;
h. User’s Mobile Number to which the activation code has been sent is responsible for all the activities done through his/her/its account;
i. Any change or discontinuation has to be informed to ValueFirst in written form;
j. If the user fails to inform about change in number, all the liabilities lies to user and the mobile number to which activation has sent;
k. Any change in user’s Mobile Number will be intimated well in advance.
a. User understands that ValueFirst has no editorial control over any third party content and that ValueFirst does not guarantee the accuracy or completeness of any third party content;
b. User agrees that ValueFirst will have no liability to user, or anyone else who uses user’s Account, with regard to any third party content;
c. Under no circumstances will ValueFirst be liable in any way for any Content, including but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the user of any Content posted, sent via SMS, or otherwise transmitted via the Service;
VI. MODIFICATION TO THE SERVICE
a. User acknowledges that ValueFirst is dependent on various telecommunications networks and institutions for the delivery of its messages.
VII. DISCLAIMERS AND WARRANTIES
a. User understands and agrees that the SMS service is provided on an "as is" and "as available" basis. ValueFirst and its suppliers make no warranty that the service will meet user’s requirements or that use of the SMS service or the site will be uninterrupted, timely, secure, or error-free; nor do ValueFirst or its suppliers make any warranty as to the results that may be obtained from use of the SMS service or the accuracy, reliability or timeliness of any information obtained through the SMS service (including third party content), or that any defects in the SMS service will be corrected. Simply put, ValueFirst makes no representation of delivery, receipt or termination of an SMS message. User also acknowledges that, depending on the recipient's mobile service provider, it may not be possible to transmit the SMS message to the recipient successfully, particularly if the provider does not support SMS delivery at all. ValueFirst and its suppliers disclaim all warranties of any kind, whether express, implied, or statutory, regarding the SMS service, including any implied warranty of title, merchantability, fitness for a particular purpose, or non-infringement. User understands and agrees that any material or data obtained through use of the SMS service is at user’s own discretion and risk and that user will be solely responsible for results obtained using any such material or data or any resulting damage to user’s computer system or loss of data. Some states or jurisdictions do not allow the exclusion of certain warranties. Therefore, the above exclusions may not apply to user to that extent, and nothing in this section should be construed as excluding or limiting any warranty beyond what is permissible under applicable law.
VIII. LIMITATIONS ON LIABILITY
a. ValueFirst and its suppliers shall not be liable for any direct, indirect, special, consequential, exemplary, or incidental damages of any nature, including but not limited to, business interruption, loss of profits, business interruption loss of data, injury to goodwill, use, data or other intangible losses (even if ValueFirst has been advised of the possibility of such damages), resulting from use of the SMS service by user, or anyone using user’s account, including, but not limited to: (i) the use or the inability to use the service; (ii) unauthorized access to or alteration of user’s transmissions or data; (iii) statements or conduct of any third party on the SMS service or the site; or (iv) any damages or loss of any nature arising from or relating to user’s use of the SMS service or use of the SMS service through user’s account by anyone else;
b. User shall provide message instructions to user’s subscribers to unsubscribe from the messaging;
c. User shall be solely responsible for the content of the message and we are only a facilitator for the transmission of the message. User shall indemnify ValueFirst against any legal dispute and any consequential losses that may arise solely on the reason of the message transmitted by user under this scheme;
d. ValueFirst shall in no event be liable to the user or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of the SMS service generally, the site, any other ValueFirst service and any aspect ancillary thereto;
e. ValueFirst shall in no event be responsible for the security of the data transmissions between ValueFirst and the user, including but not limited to the transmission of the payment information such as credit card numbers. ValueFirst expressly disclaims all warranties of any kind, whether expressed, or implied, for the security of the data transmission between ValueFirst and the user;
f. ValueFirst shall not be liable to user and anyone who uses the SMS service through user’s Account, for any and all claims under any theory of law (including negligence). Some states or jurisdictions do not allow the exclusion or limitation of certain types of liability. Therefore, the above limitations of liability may not apply to user to that extent, and nothing in this section should be construed as excluding or limiting ValueFirst liability beyond what is permissible under applicable law.
IX. RELEASE AND INDEMNIFICATION
a. In the event that user has a dispute with one or more other user(s), user releases ValueFirst (and its officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes and user waives any rights under any state or local law limiting the extent of such release;
b. User agrees to defend, indemnify and hold harmless ValueFirst and its subsidiaries, affiliates, officers, directors, agents, attorneys and employees from and against any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User's breach of this Agreement, User violation of any law or the rights of a third party, the content User submits, posts or transmits through the SMS Service, or user’s use of the SMS Service;
c. User will indemnify, defend and hold harmless ValueFirst from and against all costs, damages, liabilities and agreed expenses, including without limitation attorneys, fees, out of pocket expenses, legal costs and disbursements, incurred in connection with any suit, claim, action or proceeding by any third party Claims.
X. TERMINATION OF ACCOUNT
a. User may terminate user’s Account, at any time and for any reason or no reason, by contacting ValueFirst customer service with a written request;
b. Notifying ValueFirst in any other way of user’s desire to terminate user’s Account may result in delays in processing user’s request;
c. ValueFirst, in its sole discretion, may immediately terminate or suspend user’s password, account (or any part thereof) or use of the SMS Service, for any reason, including, without limitation, for lack of use or if ValueFirst believes that user has violated, acted inconsistently with this Agreement;
d. User agrees that any termination of user’s access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that ValueFirst may deactivate or delete user’s account and all related information and files in user’s account and/or bar any further access to such files or the Service;
e. User shall be still liable for all the activities done through user’s account before terminating the account.
XI. INTELLECTUAL PROPERTY RIGHTS
a. User acknowledges and agrees that the SMS Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. User further acknowledges and agrees that as a result of use of the SMS Service, user may have access to or receive information or content protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws ("intellectual property rights"). Except as expressly authorized, user agrees not to violate the intellectual property rights of ValueFirst or any third party.
XII. GOVERNING LAW ARBITRATION
a. In the event of any litigation or other legal proceedings between the parties, the prevailing party shall be entitled to reasonable attorneys' fees and all costs of proceedings incurred in enforcing this Agreement. The Courts in Delhi, India shall have exclusive jurisdiction to try and dispose of any proceedings arising out of this Agreement. The laws of the Union of India shall govern the validity, interpretation and performance of this Agreement;
b. Any disputes relating to this Agreement or the SMS Services shall be, before referring to the aforesaid courts, shall be referred to Arbitration under the Arbitration and Conciliation Act, 1996. The proceedings of arbitration shall be held at New Delhi by a sole arbitrator appointed by ValueFirst. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator shall have the power to award damages and injunctive relief.
a. If any provision of this Agreement is invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable and the other provisions of this Agreement will remain in full force and effect. This document and the pages referred to herein represent the entire agreement governing use of the SMS Service and supersede any prior or contemporaneous written or oral statements by ValueFirst or its representatives or resellers;
b. The failure of ValueFirst to exercises or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.