Terms of Service

Last Updated: 3/7/2024

PLEASE REVIEW THESE MESSANGI TERMS OF SERVICE CAREFULLY. ONCE ACCEPTED, THESE MESSANGI TERMS OF SERVICE BECOME A BINDING LEGAL COMMITMENT BETWEEN CUSTOMER AND MESSANGI. IF CUSTOMER DO NOT AGREE TO THESE MESSANGI TERMS OF SERVICE, CUSTOMER SHOULD NOT ACCEPT THEM, CREATE AN ACCOUNT, OR USE THE SERVICES.

THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY.

If Customer has a separate written agreement with Messangi for Customer use of the Services, these Messangi Terms of Service will not apply to Customer, unless that written agreement does not cover a particular Service, in which case, these Messangi Terms of Service apply solely to Customer use of that particular Service.

These Messangi Terms of Service (“Agreement”) set forth the terms for Customer use of the Services and are effective as of the date Customer accept or otherwise agree to the terms of this Agreement (“Effective Date”). This Agreement is between the applicable Messangi entity identified below (“Messangi”) and Customer or the organization on whose behalf Customer are accepting or otherwise agreeing to the terms of this Agreement (“Customer”).

Products and Services

Provision of the services

Messangi will:

(a) make the Services available to Customer in accordance with these Terms, our documentation, including any usage guides and policies for the Services contained in such documentation (“Documentation”), and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments (“Order Form”).

(b) Comply with our Customer Support for the Services.

(c) Provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for Customer’s particular use of the Services), subject to Customer’s use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s).

(d) Make commercially reasonable efforts to use industry-standard measures designed to scan, detect, and delete code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.

(e) If applicable, use trained, qualified personnel to provide the Services.

(f) Use commercially reasonable efforts to provide Customer with applicable support for the Services.

Customer Responsibilities

Customer will:

(a) Be solely responsible for all use of the Services and Documentation under Customer’s account and each Customer Application.

(b) Not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to Customer’s End Users in connection with the use of each Customer Application as permitted herein) or offer them on a standalone basis.

(c) Use the Services only in accordance with the Messangi Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation.

(d) Be solely responsible for all acts, omissions, and activities of Customer’s End Users, including their compliance with this Agreement, the Messangi Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation.

(e) Use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Messangi promptly of any such unauthorized access or use.

(f) Provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers.

(g) Comply with Customer’s representations and warranties outlined in Representations, Warranties, and Disclaimer).

Suspension of Services

Messangi may suspend the Services immediately upon written notice to Customer for cause if Messangi, in good faith, determines:

(a) That Customer or Customer’s End Users materially breach (or Messangi, in good faith, believes that Customer or Customer’s End Users have materially breached) any provision of this Agreement, including their obligations under the Messangi Acceptable Use Policy.

(b) There is an unusual and material spike or increase in Customer’s use of the Services, and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services.

(d) There is any use of the Services by Customer or Customer’s End Users that threatens the security, integrity, or availability of the Services.

(e) That information in Customer’s account is untrue, inaccurate, or incomplete. Customer remain responsible for the Fees.

Changes to the Service

Customer acknowledges that the features and functions of the Services may change over time; provided, however, Messangi will not materially decrease the overall functionality of the Services. It is Customer’s responsibility to ensure each Customer Application is compatible with the Services. Although Messangi endeavors to avoid changes to the Messangi Platform that are not backward compatible, if any such changes become necessary, Messangi will use commercially reasonable efforts to notify Customer at least sixty (60) days prior to implementation. In the event Messangi makes a non-backwards compatible change to the Messangi Platform and such change materially and negatively impacts Customer’s use of the Services (a) Customer will notify Messangi of the Platform Change and (b) Messangi may agree to work with Customer to resolve or otherwise address the Platform Change, except where Messangi, in its sole discretion, has determined that a Platform Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.

Fees and Payment Terms

Fees

Customer agrees to pay the fees set forth in the applicable Order Form(s). If Customer uses any Services not set forth in the applicable Order Form(s), Customer will be charged the applicable rates available.

Billable Transactions (“Transactions”):

Parties agree that the following constitute a non-exclusive list of billable transactions enabled by Services:

Messages Sent or received (SMS, Push Notifications, Whatsapp, RCS, and Email)
WhatsApp Conversations Initiated
Web Interactions
Mobile Wallet Pass Generations

Communications Charges

If applicable, all fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). Customer will pay all Communications Surcharges in connection with Customer use of the Services. Communications Surcharges will be shown as a separate line item on an invoice. Customer will pay all costs, fines, or penalties that are imposed on Messangi by a government or regulatory body or a telecommunications provider as a result of Customer or Customer End Users’ use of the Services.

Exemption

If Customer are exempt from paying certain Taxes or Communications Surcharges, Customer will provide the necessary exemption information as requested by Messangi or a valid exemption certificate issued by the appropriate authority via e-mail to finance@mesangi.com. Customer will be exempt on a going-forward basis once Messangi has approved Customer exemption request. If the appropriate authority determines, at any time, that Customer are not exempt from paying any Taxes or Communications Surcharges, Customer will promptly pay such Taxes or Communications Surcharges to Messangi, plus any applicable interest or penalties.

Payment Terms

Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.3.3 (Payment Disputes), Customer will pay the Fees due hereunder in accordance with the following applicable payment method:

Invoicing

(a) invoices will be sent to Customer each month, via email to the email address(es) Customer designate (b) Customer will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent Customer procure the Services without any applicable Order Form(s), the Fees are payable in United States dollars. If Customer fail to pay the Fees and remedy such failure within fifteen (15) days of the date Messangi provides Customer with written notice of the same, then Messangi may (i) assess and Customer will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law and (ii) suspend the provision of the Services to all of Customer accounts until the Fees due are paid in full. Customer are prohibited from creating new accounts until the Fees due are paid in full.

Payment Disputes

Customer will notify Messangi in writing within sixty (60) days of the date Messangi bills Customer for any Fees that Customer wish to dispute. Customer may withhold the disputed Fees until the dispute is resolved. Where Customer are disputing any Fees, Customer must act reasonably and in good faith and will cooperate diligently with Messangi to resolve the dispute. Messangi will not charge Customer a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless Customer fail to cooperate diligently with Messangi or Messangi determines the dispute is not reasonable or brought in good faith by Customer.

Messangi Corporation

5798 SW 68th St

Miami, Florida 33143

USA

Attention: Legal Department

legal@Messangi.com

(T): +1 (305) 670 8081

Ownership, Customer Data, and Confidentiality

Ownership

Messangi shall retain sole and exclusive ownership of any and all copyrights, software code, patents, trademarks, trade secrets, know-how, rights in confidential information and all other intellectual property whatsoever throughout the world which may be registered or unregistered (“Intellectual Property”) that is or was owned, developed, conceived, or licensed from time-to-time by Messangi prior to the Effective Date or independent of this Agreement (”Pre-Existing Intellectual Property”). Nothing in this Agreement provides Customer or its Affiliates (or any other party) with any right, title or interest in or to Messangi’s Pre-Existing Intellectual Property other than the right to use such Pre-Existing Intellectual Property strictly in accordance with this Agreement.

The Pre-Existing Intellectual Property is proprietary to Messangi, and title to it remains in Messangi. All applicable common law and statutory rights in the Pre-Existing Intellectual Property, including, but not limited to, rights in confidential and trade secret material, source code, object code, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Messangi. Customer shall have no right, title, or interest in such proprietary rights. The terms and conditions under this caption “Ownership” shall survive the expiration or termination of this Agreement.

Customer Data

Customer grant Messangi and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the Messangi Data Protection Addendum. Customer are responsible for the quality and integrity of Customer Data.

Confidentiality:

The terms and conditions described in this Agreement, including its existence, shall be confidential information and shall not be disclosed to any third party by the Customer or any of its representatives. Notwithstanding the foregoing, nothing contained herein shall be construed so as to prohibit any party from making any disclosure required by law, including any such disclosure required by any Federal, state, or local governmental agency or court of competent jurisdiction. If the Customer determines that it is required by law to disclose information regarding this Provider Agreement or to file this Provider Agreement pursuant to a deposition, interrogation, request for information or documents in legal proceedings, subpoena, civil investigative demand, governmental or regulatory process agency, the Customer shall (a) promptly notify in writing Messangi, and consult with and assist the Messangi in seeking a protective order or request for other appropriate remedy, (b) in the event that such protective order or remedy is not obtained, or if the Messangi waives compliance with the terms hereof, the Customer shall disclose only that portion of this Provider Agreement which, based on the written advice of such party’s legal counsel, is legally required to be disclosed and shall exercise commercially reasonable efforts to provide that the receiving person shall agree to treat this Provider Agreement as confidential to the extent possible (and permitted under applicable law) in respect of the applicable proceeding or process. This provision shall survive the expiration or termination of this Agreement.

Warranties Disclaimed and Limitation of Liability

The terms and conditions under this caption “Customer Responsibilities” shall survive the expiration or termination of this Agreement. Messangi MAKES NO ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (IF APPLICABLE), ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED. IN NO EVENT SHALL Messangi BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS OR DAMAGES FOR LOSS OF USE OR LOSS OF DATA OR LOST REVENUES (EVEN IF Messangi HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON STATUTE, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. SOME STATES DO NOT ALLOW SUCH DISCLAIMERS OF WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS ABOVE MAY NOT APPLY. IN NO EVENT SHALL Messangi OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE TO CUSTOMER FOR ANY CLAIMS OR DAMAGES IN EXCESS OF AMOUNTS PAID BY CUSTOMER TO Messangi UNDER THIS AGREEMENT. The terms and conditions under this caption “Warranties Disclaimed” shall survive the expiration or termination of this Agreement.

Miscellaneous

(a) Governing Law. This Agreement has been executed and delivered within the State of Florida, is a contract made under the laws of the State of Florida, and shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to conflict of law principles thereunder.

(b) Successors; Non-Assignment. Except as otherwise specifically provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Customer shall not assign this Agreement without the prior written consent of Messangi. Messangi may assign this Agreement to an affiliate.

(c) Captions. Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision hereof.

(d) Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, void or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, void or unenforceable, shall not be effected thereby. Notwithstanding the foregoing, if such severance would render the remaining provisions of this Agreement inadequate to accomplish the basic purposes and mutual intent of the parties, then either party may terminate this Agreement upon written notice within 30 days of such court order or notice effecting severance.

(e) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. Delivery of executed signature pages hereof by facsimile transmission or email shall constitute effective and binding execution and delivery hereof.

(f) Entire Agreement; Amendment. This Agreement constitutes the entire Agreement between the parties with regard to the subject matter hereof and supersedes all communications, discussions commitments and prior writings. The parties hereto may amend this Agreement at any time during the Term of this Agreement, but no amendment shall be effective unless it is in writing and duly executed by all of the parties hereto. Customer acknowledges and agrees that the salespersons representing Messangi in connection with this Agreement do not have authority to make any statements, promises or representations in conflict with or in addition to the information contained in this Agreement, and Messangi hereby specifically disclaims any responsibility for any such statements, promises or representations. By execution of this Agreement, Customer acknowledges that Customer has not relied upon such statements, promises or representations, if any, and waives any rights or claims arising from any such statements, promises or representations.

(g) Equitable Remedies. Customer acknowledges and agrees that, in the event of a breach or threatened breach of the confidentiality provisions of this Agreement by Customer or its representatives, Messangi will be irreparably harmed and that monetary damages would not provide an adequate remedy. Accordingly, it is agreed that, in addition to any and all other rights which may be available, at law or in equity, Messangi shall be entitled to injunctive relief and/or specifically to enforce the terms and provisions hereof in any court of competent jurisdiction.

(h) Force Majeure. The inability of Messangi to provide its Services hereunder resulting from force majeure events, including, without limitation, power outages, failure of utilities or delays caused by strikes, picketing, insurrection, acts of God, war, emergencies, shortages or unavailability of materials, limitations imposed by exchange control regulations, embargoes or foreign investment regulations or other causes beyond Messangi’s reasonable control, shall not constitute a breach of this Agreement and shall extend the Term of this Agreement for the period equal to the period(s) of any such delays(s), provided that Messangi shall continue to perform to the extent feasible in view of such force majeure.

(i) Survival. The terms and conditions under this caption “Miscellaneous” shall survive the expiration or termination of this Agreement.

(j) No Waiver. One or more waivers of a breach of any provision of this Agreement by any party shall not be construed as a waiver of a subsequent breach of the same or any other provision, nor shall any delay or omission by a nondefaulting party to seek a remedy for any breach of this Agreement or otherwise to exercise the rights accruing to a nondefaulting party by reason of such breach be deemed a waiver by a nondefaulting Venturer of its remedies and rights with respect to such breach. All waivers to be effective shall be in writing.

(k) Construction. The parties acknowledge that each has been advised by counsel during the course of negotiation of this Agreement and, therefore, that this Agreement shall be interpreted without regard to any presumption or rule requiring construction against the party causing this Agreement to be drafted.

(l) Prevailing Party. If either party commences an action against the other to interpret or enforce any of the terms of this Agreement or as a result of a breach by the other party of any terms hereof, the nonprevailing party shall pay to the prevailing party reasonable attorneys’ fees, costs and expenses incurred in connection with the prosecution or defense of such action (including at any appellate level). As used herein, the term “prevailing party” shall mean the party which obtains the principal relief it has sought, whether by compromise settlement or judgment. If the party which commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.

(m) No Parol Evidence. By execution of this Agreement, each of the parties represents and warrants that it has relied on no oral or written statements, promises, inducements, representations or warranties to enter into this Agreement except for those expressly set forth herein and in this Agreement. The parties agree that the inclusion of this provision evidences the intent of the parties that no other evidence shall be admissible to alter or vary the terms of this Agreement. The inclusion of this provision herein has been a material inducement for each of the parties to enter into this Agreement. The parties agree that this Agreement is intended as the final, complete and exclusive statement of the terms of the agreement between the parties. The parties agree that parol or extrinsic evidence may not be used to vary or contradict the express terms of this Agreement.

(n) Further Assurances. Each party hereto shall take all such action and shall execute, acknowledge and deliver all such additional documents, instruments, conveyances and assurances as may be necessary or appropriate to carry out the purposes and intents of this Agreement. Messangi acknowledges that Messangi will take all action reasonably necessary to protect the confidentiality of Customer’s Confidential Information, including, without limitation, the establishment of adequate procedures and practices to prevent disclosure, the designation of employees who shall have access to such information, and the implementation of technological controls to prevent unauthorized access.

(o) Amendment. This Agreement may be amended, supplemented or modified only by a writing that is signed by both parties.

(p) Waiver. Waiver of any default, breach or provision of this Agreement shall not constitute a waiver of any subsequent default, breach or provision.

(q) Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTERS CONTEMPLATED HEREBY.

(r) Indemnification. Each party agrees to indemnify and hold the other party harmless against any claim, demand, action or cause of action (including reasonable attorneys’ fees and costs and other expenses) that may be made or brought against the other party as a result of the breach of any representation, warranty or agreement of such party hereunder.

Term, Termination, and Survival

The Agreement will commence as of the Effective Date and will remain in effect for the period of 6 months (the “Initial Term”) or until earlier terminated as provided herein. Thereafter, if not terminated, this Agreement will renew for additional successive 12-month periods (each, a “Renewal Term” and collectively as applicable with the Initial Term, the “Term”) until it is terminated by either party giving to the other not less than ninety (90) days written notice prior to the end of the applicable Term. After the Initial Term, either party may terminate the Agreement, with or without cause, upon ninety (90) days prior written notice to the other party.

Termination

For Convenience

Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.

Material Breach

Either party may terminate this Agreement (including all Order Form(s) and Services that are in effect) in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. For the avoidance of doubt, a breach of the Messangi Acceptable Use Policy will be considered a material breach of this Agreement. If Messangi terminates this Agreement because of Customer’s material breach, then Messangi will also close Customer accounts.

Insolvency

Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.

Survival

Upon termination of this Agreement, the terms of this Section (Term, Termination, and Survival) and the terms of all other Sections in this agreement will survive: Section regarding Products and Services, Fees and Payment Terms, Ownership, Customer Data, and Confidentiality, Warranties Disclaimed and Limitation of Liability, Miscellaneous.