This SUBSCRIPTION AGREEMENT (or “Agreement”) governs the relationship between you (hereinafter referred to as “Client”, “Subscriber”, “You” or “Your”), on the one hand, and Tri-Nvent Systems, Inc. on the other, with respect to the provisioning of Short Message Services (SMS) through QuackHub.com, an online web application for sending, receiving, and processing of SMS or text messages.
Tri-Nvent Systems, Inc. shall hereinafter be referred to, individually, as “Tri-Nvent” or “TSI” and, collectively, as “Service Provider”, “We”, “Our” or “Us”.
The communication services provided by Tri-Nvent shall hereinafter be referred to, individually, as the “Service” and, collectively, as the “Services”.
Any reference to this SUBSCRIPTION AGREEMENT shall include reference to the following:
- The General Terms and Conditions below;
- Your Subscriber Information Form submitted to Us in relation to this Subscription Agreement;
- Any Product or Service Description, Product or Service Plans and/or Product or Service special terms and conditions issued by Us, including flyers, print advertisements and mechanics; and
We reserve the right to revise and modify the SUBSCRIPTION AGREEMENT as the Service may reasonably require according to our sole discretion. Said revisions or modifications shall be posted in quackhub.com and, once published therein, shall become binding on Subscriber. It shall be your obligation to be informed thereof by accessing, from time to time, such website where the latest version of the SUBSCRIPTION AGREEMENT may be found. Your continued use of the Service shall be deemed an acceptance of any revision or modification of the SUBSCRIPTION AGREEMENT.
GENERAL TERMS AND CONDITIONS
ARTICLE 1 Subscriber Information and Service Activation
- Subscriber affirms that the information provided in the Subscriber Information Form and the supporting documents submitted in connection therewith are true and correct.
- Subscriber hereby authorizes the Service Provider to verify such information from whatever source, and authorizes the holder, controller and processor of such information, as the same is defined in Republic Act No. 10173 (otherwise known as the “Data Privacy Act of 2012”), including any amendment or modification of the same, to confirm, release, share and verify the existence, truthfulness, and/or accuracy of such information. Any incorrect information provided by Subscriber shall result to the delay in the installation, provisioning, and activation of the Service or, if already activated, in the suspension or termination of the Service, without prejudice to any other action which Service Provider may pursue in accordance with law and equity.
- Activation of the Service shall be at the sole discretion of the Service Provider. Service Provider may even require submission of additional requirements to facilitate the processing of the activation.
- The Service shall be activated only after submission of Subscriber Information Form, signing of this Subscription Agreement, and compliance by the Subscriber with all the requirements for Service activation.
ARTICLE 2 Short Code
- The Subscriber shall be issued a unique Short Code or Number that will be used when using the Service. The Subscriber shall submit a list of preferred Short Codes to the Service Provider and the availability of the Numbers shall be checked. When a number has been chosen, the Service Provider shall then reserve this number for the sole use of the Subscriber.
- The Subscriber may not change the short code after it has been reserved.
- Subscriber shall be solely responsible in maintaining its account by ensuring that all bills are paid on time. Short Codes that will be abandoned or will remain inactive and unused by the Subscriber may be issued to other subscribers.
- All access to the Service using SMS, incoming or outgoing, made or accepted through the use of the Short Code shall be presumed made or authorized by Subscriber. Accordingly, all charges for such use shall be paid by the Subscriber.
- The Service Provider shall also maintain the short code with the different telecommunications providers of the Philippines while it is being used by the Subscriber.
- Service Provider retains ownership over these numbers including, but not limited to, the right to change and allocate/re-allocate any Short Code assigned to Subscriber at any time without incurring any liability for any loss or inconvenience on the part of the Subscriber arising from such change, allocation or re-allocation. Furthermore, in the event of termination of this Agreement, Service Provider has the right to dispose of the Short Code in whatever way it deems necessary and/or convenient, including assigning the Short Code previously assigned to Subscriber to another subscriber. Thus, in case of termination of the Service, it is incumbent upon the Subscriber to notify its contacts of such termination.
ARTICLE 3 Device and Equipment
- The Subscriber may access the service through a desktop computer, laptop computer, or any mobile device that has a web browser and internet connection.
- Any devices, equipment, and other communication infrastructure needed to access the Service shall be at the responsibility of the Subscriber.
ARTICLE 4 Holding Period
- The Services shall be maintained active for the agreed Holding Period from activation date unless otherwise stated in a promotional offer. Subscriber undertakes to complete the said Holding Period or upgrade his/her subscription plan during the same period. Subscriber shall neither terminate the Service before the end of the Holding Period nor downgrade his/her subscription plan to a lower plan during the same period without the prior approval of the Service Provider.
The above notwithstanding, Service Provider has the sole discretion to approve or disapprove any upgrade or downgrade of Subscriber’s subscription plan. In case Subscriber’s request for an upgrade or downgrade of his/her plan is approved, the corresponding adjustment in rates and fees shall be made effective in the subsequent billing cycle following the approval of the request for plan upgrade and downgrade.
In case of pre-termination or downgrading without Service Provider’s approval prior to the expiry of the Holding Period, Subscriber shall pay the applicable fees and penalties imposed by Service Provider for such pre-termination or downgrade.
- Upon the lapse of the Holding Period, this Agreement shall be renewed automatically on a month-on-month basis until terminated by notice in accordance with the provisions of this Agreement. Notwithstanding, Service Provider may require a different Holding Period for additional service availed after the execution of this Agreement, which shall be stated in another agreement and shall be reckoned from the date of acceptance of application for such other additional services.
ARTICLE 5 Fees and Charges
- Upon activation of the Service, Subscriber will be charged the following applicable charges for usage of the Service as stated in Subscriber’s Information Form based on rates agreed upon by the Subscriber and Service Provider, as well as any and all additional fees and charges indicated in this Agreement or as may be notified by Service Provider in accordance with this Agreement from time to time:
- Monthly Recurring Fees stated in Subscriber’s subscription plan or promotional plan,
- Fees and charges for the normal use of the Service, such as top-ups and access fees, where applicable,
- Administration fee and other charges which may include: (i) suspension fees, cancellation fees, late payment fees, reconnection fees or reactivation fees as may be stated in Subscriber’s subscription plan, where applicable; (ii) Service Modification Fees for any request for transfer of ownership, change of Short Code, increase/reduction/modification of the Services, reconnection, and other modifications related to the Service, where applicable; and/or
- Upgrade/downgrade Fees, where applicable.
- Charges Applicable to Mobile Service - Some fees and charges for the Service are subject to variation, such as charges relating to value-added and content or premium services.
- SMS rate is at P1.00 per text and the rate to be charged to the Subscriber’s contacts can be determined by the Subscriber depending on the function being processed by the Service. The default setting is that the Subscriber will pay for the SMS sent by their contacts and the amount is charged when the Subscriber responds to their contact’s text message. No credits are deducted if the Subscriber did not respond to a message. This setting can be changed and the Subscriber may opt to charge the cost of the SMS to their contacts in varying amounts depending on the SMS request of the contact.
- Fees and charges incurred for the Service shall be payable by Subscriber even if Subscriber did not, in fact, authorize its use, Subscriber is unable to access the Service, or the Service has become unavailable.
ARTICLE 6 Credit Limit
- Subscriber will be assigned a credit limit which specifies the maximum recurring charges which Subscriber may subscribe to.
- Service Provider reserves the sole right to review the criteria for the increase or decrease of Subscriber’s Credit Limit and approve or disapprove any such request subject to existing terms and conditions. Service Provider may also proactively increase Subscriber’s Credit Limit and notify Subscriber of such increase. If Subscriber does not concur to his/her new Credit Limit, Subscriber shall inform Service Provider within the period of time specified in the notification. Subscriber’s failure to advise Service Provider within the specified period shall be deemed an acceptance of the new Credit Limit.
ARTICLE 7 Billing and Payments
- Service Provider will regularly send Subscriber’s bill to the preferred bill delivery mode indicated in Subscriber’s Information Form. Service Provider reserves the right to send Subscriber’s bill(s) to the latter’s other address(es) disclosed in the latter’s information in case of “Moved Out/Return to Sender”. Subscriber shall inform Service Provider of any change in Subscriber’s billing address. Service Provider shall not be responsible for any consequence arising from Subscriber’s inability to receive his/her bill and pay the amount due on due date as a result of Subscriber’s failure to timely notify Service Provider of any change in his/her billing address.
- Notwithstanding the non-delivery to Subscriber of his/her bill, Subscriber shall be responsible for informing himself/herself of any outstanding balance by contacting Service Provider’s Technical Support or Subscriber’s assigned account manager and making payment on or before the due date without need of further demand on Service Provider’s part.
- Service Provider will try to include in Subscriber’s bill all charges for the relevant billing period. However, when this is not possible, Service Provider may include unbilled charges in later bill(s). Service Provider may also render interim billings in advance of the usual billing cycle whenever Subscriber’s actual usage charges exceed his/her Credit Limit.
- For billing-related inquiries or complaints, Subscriber may file the same with Service Provider’s Technical Support or Subscriber’s assigned account manager within thirty (30) days from statement date. Subscriber’s failure to file an inquiry or complaint within said period shall be deemed an acceptance of the accuracy and correctness of the bill, making it final and conclusive on Subscriber. Service Provider shall respond to Subscriber’s billing queries or resolve Subscriber’s billing complaint at the soonest possible time. Subscriber understands and agrees that Service Provider, in responding to such queries and in resolving complaints, relies on its records which Subscriber acknowledges and agrees to be correct and conclusive.
- Subscriber shall pay the entire amount billed on or before the due date specified in any payment notification, bill or any other notice sent by Service Provider. Subscriber’s failure or refusal to pay, in whole or in part, any outstanding charges by due date shall entitle Service Provider to exercise the right to redirect, bar or temporarily disconnect Subscriber’s Service(s) without liability on Service Provider’s part.
- Subscriber may pay his/her bill directly to Tri-Nvent Systems, Inc. or the designated account manager. Service Provider is not bound to honor payments made to persons or entities or at places not authorized by Service Provider to receive payments on its behalf. If Subscriber opts to pay his/her bill by check and the payment is not fulfilled or honored, for example, because of insufficient funds or a dishonored check, Service Provider may charge Subscriber an additional fee.
- Subscriber’s payments shall be first applied to any late payment fee, billings in arrears, and current billing.
- In case of overpayment, the excess amount shall be used to offset outstanding charges, fees, cost, rentals or any other sum due in Subscriber’s other bills or Subscriber’s account will be credited with the amount he/she has overpaid. If Subscriber has stopped obtaining the Service, Subscriber will use reasonable efforts to notify Subscriber of the overpayment and refund the same in accordance with Service Provider’s policies.
- Any late payment made by Subscriber, whether in full or in part, shall not affect Service Provider’s right to pursue legal remedies to collect penalties or damages which Service Provider may incur as a result of Subscriber’s late payment, incomplete payment or non-payment of his/her bill. These penalties or damages may include, but is not limited to, the following: (1) penalty fee for Subscriber’s failure to comply with the Holding Period or the value of the promotional product, whichever is higher; and (2) reactivation fee.
- In the event Subscriber fails and continues to fail to pay his/her bill, Service Provider may engage the services of a collection agency or institute legal proceedings against Subscriber to recover the money owed by Subscriber and Service Provider may seek to collect recovery fee and/or reasonable costs and legal fees.
ARTICLE 8 Taxes and Currency Exchange Rates Adjustment (CERA)
Unless otherwise indicated, the fees and charges set out in this Agreement include any amount on account of tax and Currency Exchange Rates Adjustment (if any). Should there be additional taxes or increase in tax rate as mandated under Philippine laws, Service Provider will bill Subscriber accordingly.
ARTICLE 9 Representations and Warranties
- Service Provider represents that it will reasonably provide the Service in accordance with industry standards.
- Service Provider makes no representation that the Service will be available throughout the Philippine territory and in all international territories.
- The Service Provider will not ensure that the messages sent will be received by the contacts of the Subscriber since their ability to receive SMS depends on their individual network signal.
- SERVICE PROVIDER PROVIDES THE SERVICE ON AN "AS IS" BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE. SERVICE PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AS TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SERVICE PROVIDER NEITHER REPRESENTS NOR WARRANTS THAT THE INFORMATION OR CONTENT ACCESSIBLE ON OR THROUGH THE SERVICE IS ACCURATE, COMPLETE OR CURRENT, AND ALL INFORMATION OR CONTENT, INCLUDING PRICES AND AVAILABILITY, ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE TO SUBSCRIBER.
- Subscriber assumes all the risks associated with the use of the Service, any information or content available and/or accessed through the Service and any security features provided for the Service. Service Provider shall not be responsible for loss of data, it being understood that Subscriber is solely responsible for ensuring that his/her data is properly backed-up and stored in another location other than the Service.
- Subscriber represents and warrants that--- (a) his/her use of the Services shall strictly be in accordance with this Agreement; (b) he/she will not violate or infringe upon any intellectual, proprietary or other rights, including data protection and privacy rights, or any applicable law, rule or regulation; and (c) he/she has not represented to any party that Service Provider made any warranty or representation of any kind with respect to the Services.
ARTICLE 10 Termination and Suspension of the Service
Cancellation or Termination of the Service
- Subscriber may cancel the Service at any time by:
- giving Service Provider thirty (30) days prior notice, or
- giving Service Provider notice in the form of a letter or a call to Service Provider’s assigned account manager in the following instances:
- Service Provider breaches a material term of this Agreement and such breach cannot be remedied, except if the breach was a result of circumstances reasonably attributable to Subscriber; or Service Provider breaches a material term of this Agreement and such breach may be remedied but Service Provider unreasonably refuses or fails to remedy the breach within thirty (30) days after receipt of Subscriber’s notice requiring Service Provider to remedy the breach; or
- occurrence of force majeure.
The Service will be terminated on the termination date indicated on the notice. In the absence of the notice required in 1(a) above and upon the expiry of the Holding Period, Service Provider shall continue to supply the Service to Subscriber and Subscriber shall continue to be charged for the Service.
- Service Provider may terminate the Service at any time by giving Subscriber due notice. Service Provider may however terminate the Service even without notice in any or all of the following instances:
- there is an emergency or threat to Service Provider’s server,
- Service Provider reasonably suspects that Subscriber directly or indirectly engages in any fraud either by himself/herself or with any other person in connection with the Service, whether the said act is punishable under the law or not, and other analogous cases such as but not limited to international simple resale (ISR),
- Service Provider is required to do so to comply with an order, instruction, request or notice of any competent legal authority or by authorization of or under law,
- Subscriber uses the Services (i) to send spam messages or unsolicited texts and broadcast messages for the purpose of offering services, selling products, or otherwise disseminating information about a product promo, event or advocacy, (ii) to send scam or unsolicited, fraudulent or bogus text or broadcast messages for the purpose of obtaining gain or benefit from other people, or (iii) to perform any illegal activity, or otherwise use the Services in a manner that breaches a material term of this Agreement including, but not limited to, Subscriber’s obligations relating to the use of the Service set out in his/her information form or otherwise misuses the Service.
- Subscriber breaches any term or condition of this Agreement which breach can be remedied but Subscriber fails or refuses to remedy the breach within ten (10) days after receipt of notice from Service Provider requiring Subscriber to do so,
- Subscriber breaches any term or condition of this Agreement which breach cannot be remedied,
- Subscriber suffers an insolvency event and Service Provider reasonably believes that it is unlikely able to receive payment from Subscriber for amounts due under this Agreement, or
- occurrence of force majeure.
- Upon cancellation or termination of the Service, Subscriber shall no longer be able to use the Service after termination date. Once the Service is terminated, Service Provider reserves the right to prevent Subscriber from further using its web application. Further, Subscriber shall be liable to immediately pay any charges incurred (including the pre-termination fee and penalty fees, if any) until termination date. Subscriber shall also immediately pay for charges that Service Provider discovers after such termination.
If Subscriber is able to use the Service after the termination date, Subscriber shall be liable for any charges incurred by him/her for that use, in addition to any other charges under this clause.
For this purpose, Subscriber hereby authorizes Service Provider to apply any of his/her advance payment to any such outstanding charges.
- In addition to the fees and charges due in the immediately preceding provision, if the Service is terminated as a result of circumstances reasonably attributable to Subscriber: (a) before the service start date, Subscriber must pay Service Provider all development and setup costs incurred by Service Provider in connection with preparations for supplying the Service to Subscriber, or (b) during the Holding Period, Subscriber must pay the pre-termination fee.
Suspension of the Service
- Service Provider may suspend the Service at any time, if: (a) doing so is necessary to allow Service Provider or its supplier to repair, maintain or service any part of Service Provider’s application or supplier's network used to supply the Service, (b) problems are experienced interconnecting to Service Provider’s application with any supplier's network, or (c) Service Provider is otherwise entitled to do so under this Agreement.
- If Subscriber wishes to have the suspension lifted, he/she should contact Service Provider. If the suspension is temporary and was requested by Subscriber for personal reasons, the Service shall be automatically lifted after thirty (30) days unless Subscriber contacts Service Provider and requests that the suspension be continued.
- If Service Provider suspends the Service, for any reason, Service Provider may later terminate the Service for the same or a different reason. Upon such termination, Subscriber must pay Service Provider any applicable pre-termination fee.
- If the Service is suspended, Subscriber may have to pay access fees for the Service while it is suspended.
- If the Service is suspended and the suspension was not as a result of circumstances reasonably attributable to Subscriber or to the equipment that is owned by Subscriber for use with the Service, Subscriber shall be entitled to a refund or a rebate of any access fees he/she may have paid during the period of suspension. For the purpose of claiming the refund, Subscriber should contact the assigned account manager.
- If the Service Provider suspends the Service for acts or omissions on Subscriber’s part, upon such termination, Subscriber must pay Service Provider any applicable pre-termination fee.
ARTICLE 11 Temporary Disconnection
- Service Provider reserves the right to redirect, bar or temporarily disconnect Subscriber’s telecommunication service(s) in the following events: (a) Service Provider finds inconsistencies in the information provided in Subscriber’s application form, (b) non-payment by Subscriber of an overdue account, (c) usage in excess of Credit Limit, (d) abnormal or unusually high usage patterns, fraud, or other similar cases. Subscriber shall have no cause of action against Service Provider for temporary disconnection. Service Provider may reconnect Subscriber’s service(s) once Subscriber fully complies with Service Provider’s requirements. Further, Subscriber will continue to be liable for any applicable charges and/or fees, including but not limited to the monthly recurring fees despite temporary disconnection.
- Service Provider further reserves the right to effect permanent disconnection of Subscriber’s service(s) if Subscriber continues to fail to pay his/her bill within the period identified by Service Provider, or Subscriber fails to cure the cause of temporary disconnection within the agreed period of time. Once the service(s) is/are permanently disconnected or terminated, all outstanding balance for the purchase price of the Device becomes immediately due and demandable, without prejudice to Service Provider’s right to collect the pre-termination fee arising from Subscriber’s failure to complete the Holding Period.
- Subscriber further acknowledges that Service Provider has the discretion to interrupt, deactivate or disconnect the Service for various reasons or causes beyond Service Provider’s control including but not limited to force majeure, power and equipment failure or acts or omissions on Subscriber’s part or a third party.
ARTICLE 12 Service Reconnection
- In case of suspension of the Service or temporary disconnection, Service Provider shall have no obligation to reconnect the Service unless Subscriber has cured the cause for such suspension or temporary disconnection to Service Provider’s satisfaction. Reconnection/reactivation shall be at Service Provider’s sole discretion and subject to the payment by Subscriber of reconnection/reactivation fees.
- Upon reconnection/reactivation of Service, Subscriber shall be bound by the terms and conditions of this Agreement.
ARTICLE 13 Liability
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF INCOME, PROFITS, DATA, DAMAGES FROM LOSS OF USE, OR BUSINESS OPPORTUNITY, OR FAILURE TO ACHIEVE COST SAVINGS, IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, COST, OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO ANY CLAIMS FOR PERSONAL INJURY OR DEATH OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR SUBSCRIBER’S/SERVICE PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
- SERVICE PROVIDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE MONTHLY RECURRING FEE AS STATED IN SUBSCRIBER’S INFORMATION FORM.
- Service Provider reserves the right to investigate any possible violations of this Agreement and it may gather information from the Subscriber, the complaining party, or any third party. Service Provider may, without incurring any liability, suspend Subscriber’s use of the Service as it deems appropriate and without notice. If Service Provider, at its own discretion, determines that a violation of this Agreement has occurred, it may terminate, temporarily or permanently, the Service or take other corrective action as it deems appropriate. Service Provider will fully cooperate with any court order requesting or directing it to disclose, among others, Subscriber’s identity in case Subscriber is found to have violated this Agreement or any law.
ARTICLE 14 Limitation of Liability and Remedies
- Subscriber agrees to defend and hold Service Provider free, harmless and indemnified from and against any and all claims, demands, actions, causes of action, judgment, cost and reasonable attorney's fee and expenses of any nature for--- (a) any damage of any kind arising from or related to Subscriber’s use of the Service or by another party irrespective of whether Subscriber knew or has authorized such usage, (b) any damage to property or injury to or death of any person resulting from Subscriber’s use and operation of or malfunction of any equipment or power supply used for the Service, (c) any claims resulting from any action taken by Service Provider during or as a result of its investigations and/or from any action taken by it as a consequence of investigations conducted by it or by law enforcement authorities, and/or (d) any damage as a result of Subscriber’s acts or Subscriber’ failure to comply with the terms and conditions of this Agreement.
- In no event shall Service Provider be liable for: (a) any of the circumstances enumerated in Clause 1 of this Article 17, (b) any unauthorized access by a third party to Subscriber’s network or data,
(c) any error, omission or inaccuracy with respect to any information obtained or disclosed through the use of the Service, or for any damages which such errors may cause, or (f) any delay, interruption or failure to provide or restore the Service due to causes beyond Service Provider’s control or force majeure, etc.
ARTICLE 15 Assignment or Transfer of Service
- Subscriber agrees that he/she will not, without Service Provider’s prior written consent: (a) allow any person to share in the use and benefits of the Service or of this Agreement, whether for consideration or not, or (b) assign, transfer, mortgage or create any encumbrance on any of his/her rights under this Agreement and/or on any right, interest or benefit originating from it.
- The prior written consent required by Clause 1 of this Article 15 may only be secured, at Service Provider’s sole discretion, by accomplishing and submitting a service modification request together with required supporting documents to Subscriber’s account manager.
Pending approval of the service modification request, Subscriber shall be liable to pay accrued charges for the Services. Once the service modification request is approved, the or person in whose favor an encumbrance, right, interest or benefit was created by virtue of the approved service modification request, becomes the Subscriber for all intents and purposes under this Agreement, without prejudice to Service Provider’s recourse against the original Subscriber in case the new Subscriber fails to comply with his/her obligations under this Agreement.
- Service Provider reserves the right not to honor any sale, assignment, transfer, mortgage or pledge executed without its prior written consent, without prejudice to its right to immediately disconnect the Service, without incurring any liability, upon its discovery of any unauthorized sale, assignment, transfer, mortgage, or pledge and/or to impose such terms and conditions as Service Provider may deem fit, including the terms and conditions of this Agreement, for the reconnection or continuation of the Service to Subscriber’s buyer, assignee, transferee, mortgagee, or pledgee. Subscriber hereby undertakes to hold Service Provider free, harmless and indemnified against any and all sums for which Service Provider may be held liable to such buyer, assignee, transferee, mortgagee, or pledgee arising from Service Provider’s refusal to render Service to the unauthorized buyer, assignee, transferee, mortgagee, or pledgee.
ARTICLE 16 Miscellaneous
- This Agreement represents the entire understanding by and between Subscriber and Service Provider and supersedes all prior written and oral agreements and representations and will commence on the date of Service Provider’s acceptance of Subscriber’s signed application and shall continue for the agreed Holding Period unless earlier terminated.
- Any failure by Service Provider to enforce this Agreement, for whatever reason, shall not necessarily be construed as a waiver of any right to do so at any time.
- Service Provider and Subscriber agree that, if any portion of this Agreement is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.
- Subscriber hereby acknowledges that he/she has read and understood all the terms and conditions herein stated and that he/she voluntarily entered into this Agreement with full knowledge and consent of everything that this Agreement contains.
TERMS AND CONDITIONS
The consumable amount of Subscriber’s Monthly Recurring Fee, if any, shall be specified in his/her subscription plan, and may or may not include all types of calls.
INTERNATIONAL MESSAGING SERVICE
Subscriber understands and agrees that the subscription is not capable of sending SMS Internationally.
SERVICE ACTIVATION AND PROVISIONING
The Service can be accessed only in areas where mobile phone signal are present. Subscriber holds Service Provider free and harmless against any and all liability arising from the non-availability of the Service due to poor mobile phone signal.
Service Provider may, with prior notice to Subscriber and without charging Subscriber any fees, make alterations to Service Provider’s Service, if Service Provider considers such as necessary and desirable in the interest of public service. Service Provider shall not be liable for any loss or inconvenience to Subscriber resulting therefrom.
UNUSUALLY HIGH USE
Service Provider may notify Subscriber if Service Provider becomes aware of an unusually high use of the Service or any network abuse which results as a threat to Service Provider’s business.
FAIR USE POLICY
Subscriber’s use of the Service is subject to the following rules and guidelines contained in this policy. This policy is designed to ensure that Subscriber’s use of the Service does not break any law, hinder the efficient operation of Service Provider’s web application, and interfere with the rights of other subscribers.
Subscriber shall be responsible for ensuring that his/her use of the Service complies with this policy. Subscriber shall also be responsible for any use of the Service by any person who gains access to the Service even if such access and use was done with or without Subscriber’s knowledge or consent,.
Should Subscriber become aware of any violations of this policy by other subscribers, Subscriber should contact Service Provider or Subscriber’s account manager.
ILLEGAL OR PROHIBITED ACTIVITIES
Subscriber agrees to use the Service only for the purpose agreed under this Agreement. Subscriber must not use the Service for any Prohibited Activity/ies, whether local or international.
“Prohibited Activity/ies” include (but are not limited to) the use of the Service for:
- Any activity constituting cybercrime offenses under applicable law;
- Any of the following activities:
- Using the Service to obtain or attempt to obtain unauthorized access to any computer, system or network;
Accordingly, if Subscriber does not have authorization, Subscriber must not (nor attempt to): (i) access, monitor or use any data, systems or networks, (ii) probe, scan or test the vulnerability of a system or network, (iii) breach any security or authentication measures for a system or network, (iv) access the account or private information of any other person or entity, (v) access any server in violation of any acceptable use policy of that server.
- Using (or attempting to use) or distributing tools designed to compromise security including, but not limited to, password guessing programs, cracking tools, packet sniffers or network probing tools;
- Using (or attempting to use) the Service in a manner that may interfere with the technical operation of the Service or any other computer system, network or telecommunications services, including (but not limited to) flooding of a network, overloading a Service, improper seizing and abuse of operator privileges; or
- Interfering (or attempting to interfere) with the regular workings of Service Provider’s systems or network connections.
- Accessing, posting, reproducing or disseminating content which may be identified or classified as contrary to law, regulation, industry code of practice, good customs, public morals, or public policy;
- Accessing, posting, producing, reproducing, or disseminating content which violates the copyright or other intellectual property rights of other persons/entities. You assume all risks regarding the determination of whether such infringing material is in the public domain;
- Accessing, posting, reproducing or disseminating content that defames, harasses or abuses any person or violates any data protection or privacy law or regulation;
- Any fraudulent activity, multi-level marketing scheme, pyramiding scheme or other illegal soliciting schemes;
- Any other fraudulent activity punishable by law, including impersonating any person or entity or forging anyone else’s digital or manual signature; and/or
- Any activity that constitutes a Bypass or Simple Resale. These are activities where a subscriber resells or uses the Service in violation of existing laws for an illegal purpose.
Subscriber shall be responsible for any misuse of the Service, as set out in the preceding clause and shall take reasonable steps/precautions to ensure that unauthorized persons do not gain access to the Service and Subscriber’s Internet account (if any).
Subscriber shall be solely responsible for the security of any device he/she chooses to connect to the Service including any data stored on that device. Subscriber shall have full control and responsibility for ensuring the security and confidentiality of any software application, codes, passwords, IDs, and the like used with the Service. Subscriber agrees and acknowledges that any and all transmission made through Short Messaging Service (SMS) and, data/content originating from his/her account shall be conclusively presumed to be Subscriber’s transmissions and has been authorized by Subscriber. Further, Subscriber acknowledges that it is his/her sole obligation and responsibility to obtain the consent of all recipients of transmissions made using the Service.
For security purposes, Subscriber must immediately notify Service Provider of any unauthorized or attempted unauthorized use of the Service and any other breach or attempted breach of security.
Subscriber acknowledges and agrees that he/she will use the software application provided by Service Provider (”Application”) on quackhub.com in a proper manner and will not re-configure or tamper with the Application as stated in the relevant software license agreement or user’s guide; (b) not, without Service Provider’s prior written consent, resell or transfer, rent, lease or lend the use of the Application; and (d) not reverse engineer, decompile, or disassemble the Application.
Subscriber agrees to promptly report to Service Provider any problem with or errors on the Application, as well as any circumstances or act of other persons which Subscriber may reasonably believe may cause damage to the Service.
ELECTRONIC MESSAGING AND SPAM
Subscriber must not use the Service to send spam, scam messages, or bulk and/or unsolicited texts or messages. For avoidance of doubt, “spam” means unsolicited texts and broadcasts for the purpose of offering services, selling products, or otherwise disseminating information about a promo, event or advocacy sent from any device and/or application, whether or not such messages include accurate sender information or contains an unsubscribed facility. ”Scam messages, ” on the other hand, means unsolicited and fraudulent and/or bogus texts or messages with the purpose of getting any form of gain or benefit from the recipient thereof, whether the sender is known to the recipient or not.
Spam and/or scam messages include, but is not limited to, commercial advertising, informational announcements, chain letters, and political or religious messages. Subscriber must only send such messages to those individuals who have explicitly requested it.
We have responsibilities under the NTC Memorandum Circular No. 03-03-2005, as amended by NTC Memorandum Circular Nos. 03-03-2005A and 04-07-2009 (Rules and Regulations on Broadcast Messaging Service) to take steps which attempt to minimize the amount of spam. To assist Service Provider in minimizing the amount of spam and scam, Service Provider may (i) restrict Subscriber’s ability to send and/or forward spam/scam emails, texts or messages; (ii) limit Subscriber’s access to the Service to a closed user group relevant to Subscriber’s use of the Service; (iii) scan Service Provider’s allocated IP address ranges for misconfigured mail and proxy servers and suspend Subscriber’s Service if Subscriber fails to rectify any problem found within a reasonable period.
Service Provider may also require Subscriber to take actions to comply with, or which assist Service Provider to comply with NTC Memorandum Circular No. 03-03-2005, as amended by NTC Memorandum Circular Nos. 03-03-2005A and 04-07-2009 (Rules and Regulations on Broadcast Messaging Service).
The Service must not be used to: (i) send messages to any individual or entity who has indicated the he/she/it does not wish to receive messages from Subscriber, or (ii) collect or redirect responses from unsolicited messages sent from accounts on other Internet hosts or messaging services which violate this policy, or the equivalent policy or any other policy of any other Internet service provider or website. Moreover, unsolicited messages sent from accounts on other Internet hosts or messaging services may not direct the recipient to any website or other resource that uses Service Provider’s network.
Subscriber must not: (i) obscure, alter or delete the source of the messages that he/she sends or forge message headers, (ii) send numerous copies of the same or substantially similar messages, or send very large messages or files, to a recipient with the intent to disrupt a server or account (for example, ‘mail bombing’).
Service Provider shall not be responsible for forwarding or storing messages sent to any account that has been suspended or cancelled. Such messages may be returned to sender, ignored, deleted, or stored temporarily at Service Provider’s sole discretion.
VIOLATION OF ACCEPTABLE USE POLICY
If Subscriber, or someone with access to the Service, uses the Service in a way that Service Provider reasonably believes violates this policy, Service Provider may take any responsive action it deems appropriate.
Such actions may include (but are not limited to) temporary or permanent removal of content and content publishing capabilities, filtering of SMS transmissions and the immediate disconnection, suspension or cancellation of all or any portion of the Service.
Service Provider may take any other legal or technical action it deems appropriate to identify offenders or violators of this policy, including taking action against offenders to recover the costs and expenses of identifying them. If Subscriber’s use of the Service causes loss to third parties and Service Provider is required to pay compensation, Service Provider may require Subscriber to reimburse Service Provider.
Service Provider is not obligated to regularly monitor Subscriber’s usage of the Service (including any content posted, disseminated or accessed by Subscriber); however Service Provider reserves the right to monitor Subscriber’s use of the Service to identify violations of this policy, and to protect its network and the other users of the Service.
Service Provider reserves the right to investigate any use of the Service that it reasonably suspects violates this policy, including the gathering of information from the users involved and the complaining party, if any, and examination of transmissions and material on Service Provider’s servers and network. During an investigation, Service Provider may suspend the accounts involved, interrupt transmissions and/or remove material that it reasonably believes potentially violates this policy.
In order to enforce this policy, Subscriber authorizes Service Provider (or its agents) to cooperate with the law enforcement authorities in the investigation of suspected criminal violations and system administrators at other service providers or other network or computing facilities. Such cooperation may include Service Provider providing, for example, the username, IP address or other identifying information about a user.
Upon cancellation of Subscriber’s SMS account, Service Provider is authorized to delete any files, programs, data, and messages associated with Subscriber’s account.
For post paid accounts, no refunds are permitted since the amount billed is for consumed credits. For prepaid subscribers, the refundable amount will be calculated based on the remaining credits and applicable penalties shall be imposed and it will depend on the amount that TSI has contracted with the telecommunications companies for the preparation of your SMS service.