Terms and Conditions
PLEASE READ THE TERMS AND CONDITIONS OF THISWEBSITECAREFULLY (“Terms”). THESE TERMS FORM A LEGAL AGREEMENT BETWEEN SCREEN MAGIC MOBILE MEDIA INC. (“Company”) AND THE CUSTOMER AND/OR ITS ASSIGNEES (collectively “YOU”).
BY CLICKING ON THE “I ACCEPT” OR “I AGREE” BUTTON OR BY ACCESSING OR OTHERWISE USING THE SMS MAGIC APPLICATION, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “I ACCEPT” OR “I AGREE” BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
“Application” or “App” shall mean the SMS Magic application created, developed and made pursuant to these Terms by the Company. The Application is published on Salesforce AppExchange, integrates with the Salesforce CRM data and enables a User (as defined below) to send messages from Salesforce to the subscriber’s contacts, leads and accounts.
“Company” or “We” or “Ours”, “Screen Magic” shall mean Screen Magic Mobile Media Inc.
“Dedicated Incoming Number” means the long code or shorty code assigned to You on an exclusive or shared basis, as the case may be, which enables easy two-way communication and allows You to send and receive mobile originating SMS messages for marketing and other communication purposes.
“Emergency Services” means services that allow a User to connect with the emergency services personnel or public safety answering points such as 911 services.
“Use” or “Using” means to access, view and use or otherwise benefit from the Services.
“User” or “You” or “Your(s)” means any person who is a registered user of the Salesforce AppExchange and opts to access and/or use the Services of the Company.
“User Data” means any user data including SMS records, SMS message content, and mobile numbers of Your end-users, made available to the Company through Your Use of the Services under this Agreement.
“Services”shall mean and include-a) the sending and receiving SMS messages and otherrelated features made available through the Application; b) providing connectivity between the Application on Salesforce and the Company server, hosted in the United States;and c)making available a portal to track delivery of SMS messages, wherever applicable, for the Users.
“Subscription Fees” shall mean the consideration to be paid by the Users for availing/Using the Services, the details of which are made available on the Website.
“Subscription Plan” shall mean subscription by the User to the Company’s Services amongst the various subscription plans made available on the Website from time to time by Screen Magic.
2.1 License to use: During the validity of this Agreement, the Company grants You a limited, non-exclusive, non-transferable, non-sub-licensable and revocable right to access and Use the Services for the internal use only. Specifically, the Application, which forms a part of the Services, is licensed and not sold to You and shall only be used as per the Terms.
2.2 Scope of License:The Services can be accessed or used by the User through the Website from mobile phones, tablets or any other electronic devices (“Electronic Device”). In order to avail the Services, User shall be required to register and create a User Account (“User Account”) on the Website. You agree to grant the Company with appropriate access to Your Salesforce CRM and appoint a qualified representative/Salesforce CRM manager to facilitate the installation, set-up and configuration of the Application. At the time of registration You shall be required to share User Data including but not limited to information regarding User’s e-mail ID, name and other relevant details. User agrees that any registration information provided by the User shall always be accurate, correct and complete.
The User shall be solely responsible for all the activities that occur under the User Account. The User undertakes that the Company shall not be responsible and liable for any claims, damages, and disputes arising out of purchase, Use or misuse of the Services. By Using the Services, You shall be solely responsible for maintaining the confidentiality of the User Account and for all other activities that occur under Your User Account. You shall use reasonable efforts to prevent unauthorized access to, or Use of, the Services, and will notify the Company promptly of any unauthorized use of any password or account or any other known or suspected breach of security. We reserve the right to accept or reject Your application to register and create a User Account, without obligation or any explanation.
The User shall select a Subscription Plan. The User shall make payments through the modes made available on the Website. On the basis of the selected Subscription Plan that the User has subscribed to, the Company shall provide the Services to the User on a monthly or annual subscription basis.
The User understands and acknowledges that it is the sole responsibility of the User to check capability and internet connectivity of the Electronic Device in order to run the App and access or Use the Services.
You understand and acknowledge that by accepting these Terms You authorize us to fetch and use the User Data that You have shared with the Company during subscription for authentication and updates regarding Your credentials.
2.3 Support Services: The Company shall provide support for the Services from time to time as per the then applicable support policies of the Company. The support services shall correspond to the selected Subscription Plan disclosed on the Website, and be applicable to the extent specified in the selected Subscription Plan.
2.4 Updates/ Upgrades: The Company may release (on a periodic basis, at its sole discretion) any minor updates and/or upgrades to the Application, subject to the Terms. In the event that We launch any such updates and/or upgrades to the App, the User can subscribe to such upgrades and or/updates through the Website, without any additional cost provided that the User is current on payment of the Subscription Fees. In the event of any major releases, the User may be required to pay the additional charges as may be intimated by the Company from time to time. In case User chooses not to opt for such major update and/or upgrade, the User can continue to use any features or functionality on such non-updated and/or up gradated version provided that it shall not be entitled for any Support Services provided by the Company.
3. USER CONDUCT:
You represent and warrant to the Company that You:
3.1 shall not reproduce, duplicate, copy, sell, resell or exploit any portion of the App, or the Services;
3.2 shall not upload, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable through the Services;
3.3 shall not upload, transmit or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
3.4 shall not upload, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam”, “chain letters,” “pyramid schemes,” or any other form of solicitation;
3.5 shall not upload, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
3.6 shall not interfere with or disrupt the Website or servers or networks connected to the access and Use of the Services, or disobey any requirements, procedures, policies or regulations of networks connected to access and use of the Services;
3.7 shall not intentionally or unintentionally violate any applicable local, state, national or international laws and any regulations having the force of laws, including but not limited to those related to intellectual property, sending SMS messages and related telecommunication and data privacy laws.
3.8 shall be responsible for all traffic sent to and received from the User Account, including all traffic sent to and received from mobile recipients on the Dedicated Incoming Numbers assigned/dedicated to mobile recipients worldwide.
3.9 shall not Use the Services to access or allow access to the Emergency Services.
4. PROPRIETARY RIGHTS OF THE COMPANY:
You understand, acknowledge and agree that the Company is the sole owner of all rights, title and interest, including all intellectual property rights for the Application, Services, logos, and any necessary software used in connection with the Services.
There may be proprietary logos, service marks and trademarks found on the App and Website whether owned/used by the Company or otherwise. By displaying them on the App, the Company is not granting You any license to utilize the proprietary logos, service marks, or trademarks. Any unauthorized use of the same may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes.
The duration of this Agreement shall be for a period of one (1) year (“Initial term”) from the date You accept the Terms of this Agreement. The Agreement shall be automatically renewed for additional one year periods (each, “Renewed Term”)unless either party gives the other party, a written notice of thirty (30) days for non-renewal, prior to expiration of the Initial Term or the then current Renewed Term as the case may be. Before the expiry of the Initial Term or each such Renewed Term, the Company shall inform You in writing, with a one month prior written notice, any changes in the pricing hereunder and any subsequent Renewed Term then shall be subject to revised pricing as communicated by the Company.
The Company reserves its rights to terminate these Terms in the event:
6.1 You have breached any provision of these Terms or;
6.2 Company is required to do so by law (where the provision of the Services is, or becomes, unlawful); or
6.3 Company chooses to discontinue the Services; or
6.4 The license granted to access and Use the Services, expires; or
6.5 For convenience. In such event of termination of convenience, the Company shall refund the Subscription Fee paid to it on a pro-rata basis.
Either party may terminate this Agreement for a material breach, in the event the other party fails to cure any reported breach by such party within (30) thirty days from the date when such party reports the breach. Upon termination of these Terms, the rights and licenses granted to You hereundershall cease to be in effect, and You must immediately stop Using the Services, and (if needed) delete the User Account.
EXCEPT AS EXPRESSLY SET FORTH, THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT OR TIMELY DELIVERY OF SMS’S. THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 You agree to indemnify and hold the Company, and its subsidiaries, affiliates, officers, directors, agents and employees, harmless from any claim, demand, action, losses, damages, liabilities, costs and expenses(including attorneys’ fees and expert’s fees), made by any third party due to or arising out of:
(i) Your violation of the Terms;
(ii) Your violation of the User Conduct under Section 3 hereunder;
(iii) Your wrongful Use or misuse of the App;
(v) Your violation of any applicable laws.
8.2 The Company agrees to indemnify and hold You harmless against any actual third party claims arising out of infringement of intellectual property rights of third party, which are solely and directly attributable to Your Use of the Application pursuant to the terms of this Agreement. If such a claim is made, the Company shall, at its own expense and option, exercise one of the following remedies:
(i) Obtain for You, the right to continue to Use the Services consistent with this Agreement;
(ii) Modify the Services to make them non-infringing;
You agree and acknowledge that the indemnity protections offered in clause 8.2 are contingent upon You providing the Company with a notice of such third party claims, and co-operate in the investigation, settlement and defence of such claims.
8.3 Exceptions to Indemnification
The Company shall have no obligation to indemnify You to the extent that such claims under clause 8.2 arise as a result of:
(i) Your combination of Services with other products or services not reasonably foreseeable by the Company and such infringement or claim could have been avoided in the absence of such combination;
(ii) Your modification and misuse of the Services, not in compliance with this Agreement, where such infringement or claim could have been avoided in the absence of such modification or misuse.
9. LIMITATION OF LIABILITY:
You expressly understand and agree that the Company shall not be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from the Use or the inability to Use the Services, due to downtime, server failure or otherwise or in any way relating to the Services.
Notwithstanding anything contained in these Terms or otherwise, the total aggregate liability of Company to You in all events under any applicable laws for loss or damage arising out of these Terms shall be limited to the Subscription Fees paid in the three (3) month period preceding the event giving rise to the claim. The forgoing limitations of liability will apply notwithstanding the failure of essential purpose of any limited warranty or remedy herein.
The Services are not intended to support or carry emergency calls to any Emergency Services. Neither the Company nor its representatives will be liable under any legal or equitable theory for any claim, damage, or loss arising from or relating to the inability to Use the Services to contact Emergency Services.
10. CONFIDENTIAL INFORMATION:
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, User Data, and information related to Your login identifiers and credentials for the User Accounts. The Receiving Party agrees not to disclose Confidential Information to any third parties and shall restrict disclosure of Confidential Information only to a limited group of Receiving Party’s directors, partners, affiliates, concerned officers, employees, attorneys, subcontractors or professional advisors who need to have access to the Confidential Information and each of whom shall be informed by Receiving Party of the confidential nature of the Confidential Information and agree to observe the same terms and conditions set forth herein as if specifically named a Party hereto. If the Disclosing Party does not want the Receiving Party to disclose Confidential Information even on a need to know basis to its directors, partners, affiliates, concerned officers, employees, attorneys, subcontractors or professional advisors, it shall specifically inform the Receiving Party of this request in writing. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 11 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after three (3) years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. User Data will be destroyed as set forth in Section 20.
11. STATISTICAL INFORMATION:
Notwithstanding anything else in the Agreement or otherwise, the Company may monitor Your Use of the Services and use User Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate User Data and/or identify Your Confidential Information. The company retains all intellectual property rights in such information.
12. FORCE MAJEURE:
Without limiting the foregoing, under no circumstances shall Company be held liable for any damage or loss due to deficiency in performance of the Services, resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, Telecom Regulatory Authority of India (TRAI) regulations, Department of Telecommunications (DOT) regulations, or any other government regulations, floods, storms, electrical failure, civil disturbances, riots.
The Company reserves the right to modify, change, substitute, remove, suspend or update these Terms or any information thereof at any time. Such changes shall be effective immediately upon posting on the Website and continued Use of the App and Services shall be deemed to be Your acceptance of the Terms.
15. CHOICE OF GOVERNING LAW:
These Terms shall be construed and governed by the laws of Nevada, United States, without regard to principles of conflict of laws.
Parties further agree that the courts in Henderson, Nevada shall have exclusive jurisdiction over any disputes arising out of these Terms.
17.1 Entire Understanding: These Terms constitute the entire understanding between You and the Company and governs Your Use of the Services.
17.2 Waiver: The failure of the Company to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Use of the Services hereunder or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
17.3 Severability: If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.
You agree that after purchasing a Subscription Plan, You can apply for a refund only within three (3) days of making the purchase. This provision is only applicable on the first purchase of a Subscription Plan and does not apply to renewal of the Subscription Plan thereafter. For the refund, You can send an email to email@example.com with the title/subject ‘Refund’. Please mention the invoice number and the product item description You want a refund for. Our refund policy is available at https://www.sms-magic.com/refund-returns-policy/.
You may cancel the paid Subscription Plan only through Your User Account on the Website, which shall be considered as valid written notice of cancellation. For monthly subscriptions, the cancellation shall be effective immediately upon receipt/deduction from the User Account of an amount equivalent to the Subscription Fees of subsequent (1) one month over and above the Subscription Fees already paid by You for the then current month when such notice is issued by You. Cancellation requests by telephone, chat or any mode of communication other than the aforementioned shall not be considered as valid cancellation. The cancellation of the Subscription Plan for the Services shall automatically result in the Termination of this Agreement.
20. DESTRUCTION OR DELETION OF THE USER DATA:
Within two (2) months upon expiry, an early termination or cancellation of the paid Subscription Plan pursuant to the terms set out under this Agreement, We shall delete or destroy all the User Data in Our possession.
Please report any violations or grievances with relation to the Terms to the Company at firstname.lastname@example.org. In case of any violation, especially of the User Conduct under section 3, You shall be solely liable for the payment of any penalties or expenses arising out of such violation. In addition, any penalties or expenses incurred by the Company, SMS aggregators or operators are the liability of the User. Upon receipt of such complaints, the Company reserves the right to disable Your User Account. You agree that the Company merely provides You a platform of communication via its Application and does not verify or validate the intent of the messages, its recipient or the content of those messages. You are solely responsible for the intent and content of the messages you send, and any violation with respect to or arising out of the same.
You further agree that the Company has tied up with various SMS aggregators and network operators in order to facilitate the relaying/transmission of messages from the application to the authorized recipient and You understand and acknowledge the significant role of the aggregators and operators in the performance of the Services and that the Company shall not be liable for any claims arising out of any such dependency on the SMS aggregators and network operators.