“Customer” refers to the entity that has ordered Software as a Service from sms.discount (“us") or an authorized distribution partner of sms.discount by ordering online or by executing the Ordering Document that accompanies and incorporates this sms.discount software as a service agreement, as applicable (collectively, the “Agreement”).
“Software as a Service” refers to the services rendered by sms.discount to Customer based on the use of the sms.discount Application Programs. The scope and functionalities of such services comprise the receiving of text messages via authorized phone carriers, invoicing/billing and integration into other applications via the sms.discount application programming interface. Such services shall also include any required technical support services as set forth in §§ 2 and 3 below rendered to the Customer (“Support”), as well as any other services provided by sms.discount as defined in the Ordering Document (collectively, the “Services”). For the avoidance of doubt, the Services shall not include any professional services (training, consulting and the like) unless expressly referred to in an Ordering Document or a separate agreement.
The term “Program Documentation” refers to documentation in written form, video tutorials for Users as well as any other materials provided by sms.discount as part of the Services provisioning.
The term “sms.discount Application Programs” refers to the software products owned or distributed by sms.discount to which Customer is granted access to via the internet, including Program Documentation, all in their most recent version.
The term “Users” shall mean those individuals authorized by Customer or by any sms.discount distribution partners to use the Services.
The term “Data” where related to Customer refers to the data provided by Customer that reside in Customer`s services environment.
The term “Ordering Document” refers to the ordering document signed by the parties.
§2 Scope of Services; Timely Performance
1. This Agreement is valid both for the attached Ordering Document and any orders placed online. The scope of the Services shall be limited to those set forth in this Agreement.
2. In case the sms.discount Application Programs are accessed via an on-premises data center of Customer or in case Customer wishes to integrate the sms.discount Application Programs as an OEM into other software products or IT solutions, additional provisions will need to be agreed in good faith in the Ordering Document or in a separate agreement.
3. Customer shall be obliged to and shall have the responsibility to provide and maintain any suitable hardware and software and access to the internet necessary or desirable to use and have access to the sms.discount Application Programs and the Services in accordance with the provisions of this Agreement. In general, any front-end mobile or customized applications, the admin UI and any self-services centers beyond the sms.discount API shall be the responsibility of Customer. Where any third party software tools (connectors, adapters or interfaces) are used, sms.discount's scope shall not include any third party tools, even if such tools are referred to as "sms.discount certified and supported” in the Ordering Document. Furthermore, where any other software or hardware needs to be provided by any third parties such as system integrators or other IT companies and any such software, hardware or services are not provided correctly in time, scope or otherwise, sms.discount shall also be relieved from any obligations hereunder.
4. sms.discount's Support shall consist of the following services:
i. First and second line Support as defined in §3 below;
ii. Updates, fixes, security alerts and critical patch updates;
iii. General maintenance releases, releases relating to specific functionalities, updates to the Program Documentation;
iv. Assistance with service requests during usual business hours on working days but not on Saturdays, Sunday and on public holidays;
v. Grant of online access to https://sms.discount/support allowing Customer to log service requests or Support requests online;
vi. General customer service (non-technical issues only) during normal business hours.
6. sms.discount shall use reasonable commercial efforts to generally respond to any Support requests within one business day, unless set forth otherwise in the Ordering Document. sms.discount shall only be liable for any delay if any binding dates are expressly agreed and marked as such in the Ordering Document.
7. sms.discount reserves the right to amend or change the terms of Support as set forth herein from time to time by observing four weeks prior notice. Such changes or amendments may not have a material negative effect on the Support level, as long as Customer pays any subscription fees or any other agreed remuneration on time.
§3 Support Terms
1. SaaS Fees: The subscription fees agreed in the Ordering Document include the fees for Support hereunder. Customer will not be separately invoiced for Support hereunder.
2. Technical Contacts: Users as the technical contacts are the sole liaisons between Customer and sms.discount for Support relating to the sms.discount Application Programs. The technical contacts must have, at a minimum, initial basic sms.discount Application program product training and, as needed, supplemental training appropriate for a specific role or implementation phase, or in relation to specific functionalities and/or a migration in relation to the sms.discount Application Programs, as the case may be, all so as to be knowledgeable enough about the sms.discount Application Programs and the interfaces to Customer`s IT environment and in order to help resolve system issues and to assist sms.discount in analyzing and resolving Support requests and to itself prioritize Support requests. When submitting a Support request, Customer`s technical contact should have a baseline understanding of the problem being encountered and an ability to reproduce the problem. To avoid interruptions in Support services, Customer must notify sms.discount whenever technical contact responsibilities are transferred to another individual.
3. sms.discount may review Support requests logged by Customer`s technical contacts, and may recommend specific training to help avoid future Support requests or their causes. The terms of such training shall be agreed separately in a professional services agreement.
4. Updates of the sms.discount Application Programs: “Update” means a subsequent scheduled release of the sms.discount Application Programs which sms.discount generally makes available to its customers of the Software-as-a-Service at no additional fee. Updates of the sms.discount Application Programs do not include any release, option, services or program that sms.discount only and exclusively makes available under a separate license. As part of Support, sms.discount will provide updates to the sms.discount Application Programs during the term of this Agreement when available (as determined by sms.discount). sms.discount is under no obligation to develop or make available any future services, programs or functionalities relating to the sms.discount Application Programs. If an update of a sms.discount Application Program is made available to Customer pursuant to these terms of Support, it shall replace the previous version of such terms of Support.
5. First and Second Line Support: sms.discount usually renders both “First Line Support” and “Second Line Support” for the sms.discount Application Programs directly to the Users entitled to such Support.
6. First Line Support shall include but not be limited to the following Services: A direct response to Users with respect to enquiries concerning the performance, functionality or operation of the sms.discount Application Programs, a direct response to Users with respect to problems or issues with the sms.discount Application Programs, a diagnosis, evaluation and/or resolution of problems or issues with the sms.discount Application Programs.
7. If after reasonable commercial efforts a diagnosis or resolution of problems or issues of the sms.discount Application Programs cannot be effected, the User may contact sms.discount for “Second Line Support.” Such Second Line Support shall consist of the following Services: A diagnosis and evaluation of issues with the sms.discount Application Programs and reasonable commercial efforts to resolve reported and verifiable errors in the sms.discount Application Programs so that the sms.discount Application Programs functionalities are fulfilled in all material respects as described in the associated Program Documentation.
8. sms.discount will review Support requests logged by Customer`s technical contacts, and may recommend specific organizational and process changes. In order to determine the scope and response time for the Second Line Support hereunder, any errors shall be categorized as below. The Support requests shall include error reports to sms.discount allocating each error to one of the below error categories. Each error report should relate to one particular error only to be remedied by one specific Support request (ticket). sms.discount reserves the right to change the error category after consultation with Customer should the allocation to a specific error category seem unsuitable.
9. Error category 1: Software-as-a-Service as a whole unusable due to errors in the sms.discount Application Programs (“Blocker”).
10. Error category 2: The use of Software-as-a-Service is strongly impaired due to errors in the sms.discount Application Programs (“Critical”); core functionalities of the supported software are not usable; the consequences can have a serious impact on the Customer’s business.
11. Error category 3: The use of Software-as-a-Service is impaired due to errors in the sms.discount Application Programs (“Major”); major errors impair the use of the supported software; the Customer’s business may be impaired by it.
12. Error category 4: The use of Software-as-a-Service is slightly impaired due to errors in the sms.discount Application Programs (“Minor”); less important parts of the Services are affected by the problem or a solution is available for avoiding major consequences. A minor impairment of the Customer’s business is possible.
13. sms.discount will allocate its resources and response times in line with the above error categories and prioritize its activities accordingly.
14. If Customer is of the opinion that Customer has not received quality or timely assistance in response to a Support request critical to Customers`s business or in case Customer urgently needs to communicate important Support related business issues to sms.discount, Customer` technical contact may escalate the Support request by contacting sms.discount and requesting that the Support request be escalated. For Support requests so escalated, the sms.discount support team member will engage the sms.discount Support request escalation manager who will work with Customer to develop an action plan and allocate the appropriate sms.discount resources. If the issue underlying the Support request remains unresolved, you may contact the sms.discount service request escalation manager to review the service request and request that it be escalated to the next management level within sms.discount as required. To facilitate the resolution of an escalated Support request, Customer is required to provide contacts within its organization that are at the same level as that within sms.discount to which the Support request has been escalated.
15. Contacting support without taking all relevant support documents and documentation into consideration is considered a violation of these terms. sms.discount reserves the right to terminate accounts that contact customer support without a specific issue that is not solveable by the customer.
§4 Rights Granted, Restrictions
1. Upon sms.discount’s acceptance of Customer`s order and for the term of the Services, sms.discount grants to Customer the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Customer`s own business operations and subject to the terms of the Agreement.
2. Customer may allow its Users to use the Services for this purpose and Customer shall ascertain that its Users comply with the license restrictions of this Agreement.
3. sms.discount has no delivery obligation of and will not ship any physical copies of the sms.discount Application Programs to Customer as part of the Services. Customer acknowledges that the Services and the sms.discount Application Programs are only accessible via the internet or on Customer`s premises, as applicable. Customer agrees that it does not acquire under this Agreement any license to the sms.discount Application Programs themselves and that these sms.discount Application Programs will only be used as part of the Services.
4. Upon termination of the Agreement or the Services thereunder, Customer`s right to access or use the sms.discount Application Programs specified in the Ordering Document and Customer`s right to use the Services shall terminate.
5. The Program Documentation or the Ordering Document may specify third party hardware or software that may be helpful or necessary for the use of certain sms.discount Application Programs. sms.discount hereby points out that Customer`s right to use such third party technology is exclusively governed by the terms of the third party license agreement with su8ch third party licensor and not by this Agreement.
6. Customer may not:
i. remove or modify any program markings or any notice of sms.discount’s Services or of sms.discount`s or its licensors’ proprietary rights;
ii. make the Services available in any manner to any third party for use in the third party’s business operations (unless expressly permitted for the specific license of Customer);
iii. modify, make derivative works of, disassemble, reverse compile, or reverse engineer or translate any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials);
iv. disclose results of any Services or program benchmark tests relating to the sms.discount Application Programs to any third parties; and
v. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, or the sms.discount Application Programs available, to any third party other than as expressly permitted under the terms of the Agreement.
7. The rights granted to Customer under this Agreement are also conditioned on the following:
i. the rights of any User authorized to use the Services (e.g., on a “named User” basis) cannot be shared or used by more than one individual (unless such authorization is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the Services);
ii. except as expressly provided herein, the Services may neither in whole nor in part be copied, reproduced, distributed, republished, downloaded, displayed, posted or transferred in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
iii. Customer undertakes to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
8. In case sms.discount renders any customized programming or software development services to Customer, any intellectual property rights (including copyrights and patent rights) and title thereto shall be vested in sms.discount. This shall expressly comprise and include all intellectual property rights (including copyrights and patent rights) and title to all source code and object code relating to any software so developed and shall further include any algorithms, analyses, diagrams, tests, reports and documentation relating thereto. sms.discount grants to Customer a royalty free worldwide perpetual non-exclusive and non-transferable license to commercially use any such developments within Customer`s group of companies.
9. Discussing private offers such as prices that are not available to the public lead to an immediate termination of your account without any refunds.
10. The use of sms.discount is limited to citizens of the DACH (Germany, Austria, Switzerland) region that are over the age of 18 and fully contractually capable.
§5 Warranties and disclaimers
1. sms.discount warrants – subject to Customer`s compliance with its obligations under §§ 2 and 4 above – that the Services will be rendered in accordance with good engineering practice and in line with the standard of care and quality in place at professional IT and software companies.
2. If the Services provided to Customer for any given month during the Services term were not performed as warranted, Customer must provide written notice to sms.discount no later than five business days after the last day of that particular month or within such other period stated in the Ordering Document. All claims not made in writing and received by sms.discount within the time period specified above shall be deemed waived and be forfeited.
3. In the event of a breach of the foregoing warranty sms.discount´s sole obligation shall be to re-perform the defective Services and to correct any existing non – conformity. The warranty period shall be twelve months from the rendering of any Services and any warranty claims shall expire and shall be statute – barred thereafter.
4. Subject to Customer`s compliance with §§ 2 and 4 above and para. 2 above, the above Services warranty shall also apply in case of any defects of any sms.discount Application Programs in case such sms.discount Application Programs do not perform in all material respects in accordance with the Program Documentation. Due to the nature of the Software-as-a-Service business model the warranty for the sms.discount Application Programs shall be included in and be considered part of the warranty for Services and there shall not be any warranty as to any defects or deficiencies of the sms.discount Application Programs used by Customer hereunder unless this materially and adversely affects the availability of the Services as in more detail specified in para 5 below.
5. The Services shall in general be available and operational (“Availability”). The Availability of the Services shall be 99.5 % (calculated on a monthly basis for any given month). In general, times during which any updates, upgrades or new releases to the sms.discount Application Programs are installed or implemented, shall also be considered as times of Availability, provided that sms.discount has informed Customer reasonably in advance. Furthermore, times during which errors of categories 3 and 4 as defined in § 3 above exist shall also be considered times of Availability. Furthermore, where Customer is not in compliance with any supplies or services necessary for sms.discount or any third party data processing center contracted by sms.discount to render the Services shall also not be considered times of non-Availability. Periods of time during which maintenance works are performed to ascertain the operation of the sms.discount Application Programs and the Services – either at sms.discount itself or at any subcontractors of or service providers of sms.discount – shall be deemed as times of Availability. Services Periods of time during which events of Force Majeure as defined in § 15 prevail, shall also be deemed times of Availability.
6. If the Availability of the Services is not met for a specific month, Customer will be entitled to an adequate reduction of the subscription fees during times of non-Availability. Further claims of Customer for any damage or loss shall be excluded.
7. Such warranties do further not apply to any defective Services resulting from misuse, casualty loss, use or combination of the Services or the sms.discount Application Programs with any products, hardware or services furnished by any third party, any modification of the sms.discount Application Programs not made by or for sms.discount, or any use of the sms.discount Application Programs by Customer in contradiction to the terms of this Agreement, in particular § 4 above or in case of non-compliance with Customer`s obligations set forth under § 2 above.
8. Refunds are decided on a case-to-case basis. Refunds may be granted in the form of on-site credits.
1. If a third party brings a claim against either Customer or sms.discount stating that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or sms.discount to the other party and used by the other party, infringes such third party claimant`s intellectual property rights, the party providing such Material, at its sole cost and expense, will defend the party that has received the Material against the claim and indemnify such party from any resulting damages, liabilities, costs and expenses, if the party that has received the Material:
i. notifies the party that provided the Material promptly in writing about the claim, in no case later than 15 days after receipt of the claim; and
ii. gives the party that provided the Material sole control of the defense and any settlement negotiations and provides it with the information, authority (power of attorney), and assistance the other party needs to defend against or settle the claim at its discretion.
2. The indemnifying party shall use all commercially reasonable resources to inform, authorize and support the other party in the defense, settlement and negotiation of the third party claims.
3. sms.discount is under no obligation to indemnify Customer to the extent that a third party infringement claim is based upon the combination of any Material with any products or services provided by third parties. sms.discount furthermore is under no obligation to indemnify Customer for infringement caused by Customer`s actions against any third party if the Services as delivered and used in accordance with the terms of the Agreement would not otherwise have infringed upon any third party intellectual property rights.
§8 Term of Agreement
1. Services provided under this Software-as-a-Service agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with the Agreement. At the end of the Services term, all rights to access or use the Services, including the sms.discount Application Programs listed in the Ordering Document, shall end. Unless otherwise stated in the Ordering Document the Agreement can be terminated by each party by giving one month´s notice and the Services term shall renew for periods of one month each in case the Agreement is not terminated by either party.
2. If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred for cause. If sms.discount terminates the Ordering Document as specified in the preceding sentence, Customer must pay within 30 days all amounts which have accrued prior to such effectiveness of termination, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. Customer agrees that if Customer is in default under the Agreement, Customer may not use the Services ordered.
3. In addition, sms.discount may immediately suspend Customer`s registration, keys, password, account, and access to or use of the Services if Customer fails to pay sms.discount as required under the Agreement and does not effect the payments within ten days following notice to do so, or if Customer breaches any obligation pursuant to §§ 2, 4, 7, 13 or 17 of this Agreement. sms.discount may terminate the Services hereunder if any of the foregoing is not cured within 30 days after sms.discount’s initial notice thereof. Any suspension by sms.discount of the Services under this paragraph shall not release Customer from its obligations to make payments as set forth in this Agreement.
4. Upon Customer`s request, and for a period of up to 60 days after the termination of the applicable Ordering Document, sms.discount may permit Customer to access the Services solely to the extent necessary to retrieve a file of Customer`s Data in the Services environment. Customer agrees and acknowledges that sms.discount has no obligation to retain Customer`s Data and that such Data may be irretrievably deleted thereafter.
5. Provisions that survive termination or expiration of this Agreement are §§ 5, 6, 9, 10 and 11.
1. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and in full force and such term shall be replaced with a term consistent with and coming as close as possible to the purpose and intent of the Agreement.
2. Any general terms and conditions used by Customer shall not apply. It is expressly agreed that the terms of the Agreement, including any sms.discount Ordering Document, shall supersede the terms of any purchase order or other non-sms.discount document used by Customer and no terms other than those set forth in this Agreement shall apply to the Services ordered.
3. Any changes to or amendments of the Agreement shall only be valid when made in writing. This shall also apply to a waiver regarding the written form requirement.
§10 Limitation of Liability
1. sms.discount`s liability for damage or loss shall be limited to such damage or loss reasonably foreseeable.
2. This limitation shall not in apply in cases of gross negligence or willful misconduct and shall not apply in cases of any liability pursuant to mandatory law.
3. Customer shall have no rights and remedies other than those expressly set forth in this Agreement.
§11 Other Provisions
1. sms.discount is an independent contractor and it is agreed that no partnership, joint venture, or agency relationship exists between sms.discount and the Customer. Each party will be responsible for paying its own employees, including employment related taxes, social security, benefits and insurance.
2. Customer shall obtain at its sole expense any rights and consents from third parties necessary for sms.discount and its subcontractors to perform the Services under this Agreement.
3. The Agreement is governed by the substantive and procedural laws of Germany without regard to its rules on conflicts of laws and to the exclusion of CISG. It is agreed to submit to the exclusive jurisdiction of, and venue in, the competent courts in Frankfurt a.M. Germany in any dispute arising out of or relating to the Agreement.
4. Customer may not assign the Agreement or give or transfer the Services or an interest in them to any third party, except upon prior written consent of sms.discount.
5. Except for actions for nonpayment or breach of sms.discount’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one years after the cause of action has accrued and shall be statute-barred by such point in time.
6. sms.discount may audit your use of the Services. Customer agrees to cooperate with sms.discount’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer`s normal business operations. Customer agree to pay within 30 days of written notification any fees applicable to the use of the Services in excess of Customer`s rights and license hereunder and in the Ordering Document. If the fees are not paid within such time, sms.discount suspend the Services and/or in case the fees are not paid after a payment reminder upon a further 30 days` notice sms.discount may terminate the Agreement for default. It is agreed that sms.discount shall not be responsible for any of Customer`s internal or third party cost incurred in cooperating with the audit.
§12 Restrictions on Use of the Services
1. Customer agrees not to use or permit use of the Services for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, vulgar, offensive, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm or discriminate against certain people, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of third party intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations.
2. sms.discount reserves the right to remove or disable access to any material that violates the foregoing restrictions when becoming aware of any such violations. In this case, sms.discount shall have no liability whatsoever towards Customer in the event that sms.discount takes such action. Customer agrees to defend and indemnify sms.discount against any claim arising out of a violation of Customer`s obligations under this § 17.
3. sms.discount reserves the right to remove or disable any Customer accounts that violate our terms without any prior warning. The balance of the Customer gets voided.