Terms and Conditions

Terms and Conditions

1

Definition

  • “Contract” means the entire contract between CommSwift and the Customer, including the Terms and Conditions and Anti-Spam Policy agreement.
  • “Customer” means the party who has acquired the CommSwift service.
  • “Message” refers to WhatsApp message, SMS or any message engine that CommSwift may offer from time to time.
  • “Parties” refers to Customer and CommSwift.
  • “Prices” means all charges raised by CommSwift to the Customer, including but not limited to setup fees, monthly fee, and additional charges.
  • “Services” in general comprises of the CommSwift service provided particularly in the areas of Service hosting, Messaging, Chat Bot as well as any further whatsapp services.
  • “Services Subscribed” refers to the services mentioned in the invoice for the Customer.
  • “SPAM” means unsolicited electronic junk messages sent to mobile subscribers.

2

Scope

  • The Terms and Conditions govern CommSwift's provision of Services Subscribed to the Customer.
  • In the event of any contradiction between the provisions of the Terms and Conditions and otherwise agreed terms in writing between the parties, the later shall prevail.

3

System availability

  • Definitions and measurements

Up time

Shall mean the time when the service is working and available to the Customer.

Down time

Shall mean the time when the service is not working and non-available to the Customer, excluding planned down time.

Planned down time

Shall mean the time when the service is not working but it has been planned in advance.

  • The Service has an uptime not less than 95% per year for CommSwift’s own System, excluding planned downtime and downtime caused by the acts and/or omissions of the Customer or any Specific/Environmental outside CommSwift’s sphere of control.
  • Planned down times will be announced with minimum 3 working days in advance to the Customer. Planned down times will be by best effort scheduled to “low traffic times”.
  • System availability does not equate to message delivery rate

4

Message Delivery

  • Message delivery rate is dependent on WhatsApp server and the Internet data availability.
  • While CommSwift strives to provide high message delivery rate, messages sent from CommSwift will be on best effort.
  • The system only covers till the point of sending and are unable to guarantee on delivery to handsets.
  • CommSwift is not responsible for message not delivered due to invalid numbers provided by the Customer or non-delivery by WhatsApp due to unknown reasons not revealed to us.

5

Pricing and Price Changes

  • The prices for agreed services shall be specified in the Invoice.
  • All prices are stated in UAE Dirhams (AED) exclusive of VAT, which in case applicable, the Customer agrees to pay.
  • CommSwift is entitled to vary Prices, in particular Hosting and Service Fee with renewal of contract. Such notification will be provided through online portal or email to the Customer. Customer may terminate the service after the contract ends if customer is not agreeable with the new pricing.
  • For SMS messaging, CommSwift is entitled to vary the per SMS cost with effect from the first day of the calendar month following the serving of a three (3) days prior written notice to the Customer. Such notifications can be given by email and do not require a confirmation from the Customer to take effect. If CommSwift’s prices have increased in one time by more than 3 times the original price, the Customer may terminate the Contract within fourteen (14) days of receiving CommSwift’s notice. The termination of the contract will take effect from the day when the price change shall become effective.

6

Terms of Payment

  • Payment is due according to the terms stated in the invoice. Service duration is stated on the invoice.
  • If the Customer is in arrears in making payment, the outstanding sum will accrue interest as of the due invoice at the rate of 10% per month. The rights of CommSwift to further claims remain unaffected.

7

Contract Duration and Termination

  • The contract shall come into force with the latest date of the Customer Contract or the Invoice date and shall continue in force in accordance with duration agreed in the Customer Contract.
  • Thereafter, the normal Contract shall be renewed automatically, unless terminated by one party with an advance notice of one (1) month, on the condition that all outstanding payment and interest if applicable are paid to CommSwift.
  • Term Contracts are based on pre-payment and upon termination (even with 1 month advance notice) within the contract period will cause the remaining amount to be forfeited.
  • Each party has a right of extraordinary termination of the Contract if the other party (i) is under liquidation, winding-up or bankruptcy or (ii) commits material breach of the Contract and fails to remedy such breach within thirty (30) days of receipt of a written notice giving full particulars of such material breach and requesting that it be remedied.
  • CommSwift has a right of termination without notice if the Customer (i) is more than 1 month in arrears with payments or (ii) sends traffic which leads to end-users’ complaints.

8

Customer Responsibilities

  • The Customer will take suitable measures to ensure that no third unauthorized person or entity have access to the Customer’s access rights to the CommSwift platform.
  • The Customer is solely responsible for providing correct and complete information necessary for the provision of the Services under the Contract and has the sole responsibility of the data provided to CommSwift for forwarding and shall ensure that such data does not violate any rights of third-parties or any legal or regulatory requirements. All data sent out to mobile users shall be fully permission based. SPAM is strictly forbidden.
  • The Customer should not post or transmit any material that may be unlawful, defamatory, offensive, indecent or objectionable, or cause annoyance, harassment, irritation, inconvenience or anxiety to any person.
  • The Customer should not use this service for any fraudulent, illegal or improper purposes.
  • Without prejudice to any other rights or remedies available to CommSwift, in case of any violation of the above provision by the Customer, CommSwift is entitled to partly or fully suspend provision of the Services.
  • To secure CommSwift from getting blocked by destination applications or networks, CommSwift has the right to restrict the Customer in volume, of the total messages allowed to be sent. In such cases, the Customer has the right to extraordinarily terminate the Contract with effect to the end of the following month.
  • The Customer shall indemnify CommSwift against claims for losses, by third-parties resulting directly from the Customer’s material breach of this Clause 8.

9

CommSwift obligations

  • CommSwift will inform the Customer without delay at best effort by Email in case CommSwift experiences down times or service interruptions.
  • CommSwift shall make reasonable efforts to begin working with the problem announced / recognized within the response times stated below:

Severity

Acknowledgement Fix Problem

Critical – cat. 1

60 mins 4 hours

Minor – cat. 2

1 day 1 week

  • Any kind of feature not supported by the system or enhancements requested by the users does not count as a ‘Problem’.
  • Response time is calculated within the working hours 9am - 6pm Monday –Friday excluding public holidays(United Arab Emirates)
  • Problems include only the issues arising within CommSwift’s sphere and control.
  • Critical problems are the ones related to User login issues and not being able to send out messages
  • Minor issues are categorized as issues related to address book, filtering system, templates etc.
  • CommSwift will inform the Customer when a problem shall be considered resolved.
  • CommSwift will have no obligation to retain any archived customer data beyond the retention period of 3 months. If the Customer does not renew their CommSwift services, CommSwift will have no obligation to retain any archived customer data

10

Non-disclosure

  • The parties must keep confidential the contents of the Contract and all information they acquire in connection with the performance of the Contract, and will not use such information for the benefit of any third-party.
  • The obligations set out in the clause 7 shall not include information that

(a) the receiving party obtained from another party having the full right to disclose
(b) is in or passed into the domain public other than by breach of this clause
(c) the receiving party developed independently without access to any confidential information received from the disclosing party or;
(d) is properly required by any governmental, regulatory or judicial authority

  • In the event, the employees of CommSwift and the Customer must process personal or security-relevant information for the performance of the Contract; they shall observe the requirements of the applicable data protection laws.
  • The obligation of non-disclosure shall survive even after the termination of the Contract.

11

Force Majeure

  • Force Majeure shall be interpreted as unexpected or extraordinary circumstances beyond the control of the Parties such as but not limited to natural catastrophe, fire, explosion, restriction on export and epidemics.
  • If either party is unable to fulfill the Contract due to Force Majeure the Contract shall be suspended for the party in question for as long as the situation continues, provided that Force Majeure can only be claimed if the party in question has forwarded a written notice to the other party no later than fourteen (14) days after the Force Majeure situation arose.
  • If the Force Majeure situation continues for more than one (1) month from the date of the written notice mentioned above, the party not affected by the Force Majeure situation may terminate the Contract by giving seven (7) days’ prior written notice. In case of such termination any amount due under the Contract until the date where the termination of the Contract takes effect shall be paid by the Customer and the parties shall have no further claims against each other.

12

Amendment

  • CommSwift may amend the Terms and Conditions by giving prior written notice of one (1) month. If the Customer cannot accept the amendments, the Customer may terminate the Services affected by the same, within 30 days of receiving CommSwift’s notification of the amendments to the Terms and Conditions. The termination of the Services will take effect from the day when the amendments of the Terms and Conditions shall become effective.
  • The above does not apply in case the amendments are of advantage to the Customer.
  • The Customer’s right to termination of the Services affected by the said amendments does not apply in cases where the amendments are a consequence of requirements by any law or governmental institution.

13

Miscellaneous

  • All modifications, amendments and addenda must be made in writing between parties
  • Neither party may assign its rights under the Contract or any part thereof without the prior consent of the other party. However, in the event that party or all of a party’s business is acquired by way of merger, acquisition, consolidation, reorganization, or sale, the Contract will be transferred together with the business, provided that the other party is notified in writing of such assignment.
  • Notwithstanding the foregoing, CommSwift may assign this Contract to any of its Affiliates (defined as any legal entity owning, owned by or under the same ownership or control as CommSwift) without prior consent of the Customer.
  • The Contract shall be governed by and construed in accordance with the laws of United Arab Emirates. All disputes between the parties in connection with or arising out of the Contract, which the parties are unable to resolve between themselves, shall be finally settled by the United Arab Emirates court.
  • CommSwift has the right to contract with third-parties in whole or in part for the purposes of meeting its contractual obligations.