Terms & Conditions
Terms & Conditions
Valid from 2nd May 2018
These Terms and Conditions have been substantively updated to take into consideration changes in legislation and regulations applicable to our business in Malta and the various regions globally to which we provide services.
The words and phrases listed below shall bear the following meanings in these terms and conditions unless the context clearly indicates otherwise:
- “SMSwarriors” means the SMSwarriors legal entity responsible for providing the Services to you in your territory.
- “End user” or “recipient” means any person, including both natural and juristic entities who receives or is intended to receive any message sent by a User using the Services;
- “Network Operator” means any party licensed to install, operate and maintain a cellular telephone network;
- “Services” shall mean and include all products and services offered or provided to Users by SMSwarriors including the software and applications referred to in paragraph 15.2;
- “SMS” means a short message service provided by means of a text or data message to the cellular handset either on request of the handset User or via a pre-configured batch process;
- “User” shall mean any natural or legal person who makes use of any of the Services or who uses or visits the Website; and
- “Website” shall mean all websites published by the SMSwarriors entity including SMSwarriors.com and shall include any page or part thereof.
- Persons using the Website or the Services for any reason whatsoever bind themselves and agree to these terms and conditions.
- Should a User not agree to all the terms and conditions of this agreement or be unable to comply with these terms and conditions, the User should immediately cease using the Website and/or terminate the registration process.
- You may not use the Website or the Services if you are not of a legal age to form a binding contract with SMSwarriors.
- Users agree that all terms and conditions herewith published shall be binding on the User and that should there be a contradiction between these general terms and conditions and any other product-specific or service-specific terms and conditions, the product-specific or service-specific terms and conditions shall prevail to the limited extent of such conflict.
- SMSwarriors reserves the right to refuse to accept and/or execute an order or request to do business or to render any Services without giving any reasons therefor. SMSwarriors also reserves the right to cancel orders in whole or in part in SMSwarriors’s sole and absolute discretion.
Changes and Amendments
- SMSwarriors expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in these terms and conditions or any information on the Website without prior notice and to update prices and rates quoted on its Website from time to time.
- Users undertake to check the Website frequently and to acquaint themselves with the changes and/or amendments in the information supplied on the Website and, in this regard, Users undertake to check, at a minimum, these terms and conditions for any alteration thereto, including in respect of the prices and nature of any Services, prior to the conclusion of each new credit purchase or service order in respect of the Services governed by these terms and conditions. Users should regularly verify which networks are covered by the Services. Changes may occur as to which networks are covered from time to time.
- SMSwarriors shall make all reasonable endeavours to ensure uninterrupted and continued use of the Services, however, the delivery of SMS messages is largely dependent on the effective functioning of Network Operators’ cellular networks, network coverage and the SMS recipient’s mobile handset. SMSwarriors does not and cannot guarantee the availability of any Service, the delivery of SMS messages or the compatibility between any message or content format and any particular mobile handsets or mobile operating systems.
- Network Operators may modify, enhance, develop or discontinue components of their services at any time without prior notice, in which event SMSwarriors shall be entitled to modify, enhance, develop or discontinue affected Services to Users without notice.
- SMSwarriors shall use its reasonable endeavours to provide the User with advance notice of any modification, suspension or termination of its Services and shall endeavour to minimise the duration of any suspension thereof in so far as this is reasonably practicable.
- Messages shall be deemed to have been delivered when SMSwarriors has sent the messages to the immediate destination that it is requested to send to, including, but not limited to, mobile telephone networks, SMTP or other servers.
- Ordinary mobile terminated messaging services may be terminated by the User at any time. Incoming numbers, including long numbers, shortcodes and premium rated numbers must be leased for a minimum initial period of three months and thereafter one further months’ notice must be given by the User in order to terminate the lease of any long numbers or short codes.
- SMSwarriors shall have the right to withhold, terminate or suspend the provision of Services to the User at any time. Where this Agreement or the provision of any Service is terminated by SMSwarriors for any reason other than breach by the User or discontinuance of a Service by a Network Operator, SMSwarriors shall refund all monies already paid in advance by the User for any unused terminated service.
- SMSwarriors shall provide, on request, service information to a recipient of a message sent by a User utilising a standard rate shortcode for delivering messages in the United States of America. As per network rules and industry regulations, the following processes and procedures will apply for standard rate shortcode programs in the United States of America:
- Should a recipient have received a message from a User sent via SMSwarriors, and should a recipient no longer wish to receive such messages, the recipient may undertake any of the following: 1) Text STOP to +356 79047535. 2) Call the SMSwarriors toll-free via Skype at SMSwarriors, supply their mobile number and ask to be blocked from receiving further messages. 3) Email SMSwarriors with their mobile number and ask to be blocked from receiving further messages. Our email address is info (at) smswarriors.com
- Should a recipient wish to receive more information via an SMS message, the recipient should send the word HELP to +356 79047535
- The standard rate shortcode program service provider is SMSwarriors, and the service supplied is for the delivery of one-time passwords, activation codes and similar. Messages received on this program are typically recipient initiated and the frequency will depend on recipient requests, 1 message per request
- All messages sent via SMSwarriors are standard rate programs and message and data rates may apply. There is no premium rate.
Users acknowledge and understand that SMSwarriors acts as a conduit for the provision of information and content. Users acknowledge that SMSwarriors shall not be responsible or liable for any content transmitted and that full responsibility for content shall rest on the User. Users shall observe all relevant legislation and regulations applicable in their jurisdiction and in the jurisdiction of all persons to whom they cause messages to be delivered. It shall be the sole responsibility of Users to familiarise themselves with all applicable laws, regulations and codes of conduct to which they may be subject and to ensure compliance therewith.Users shall furthermore ensure that all messages, advertising, information and content produced or generated by a User for transmission or delivery by means of the Services shall comply with all laws and any relevant code of conduct to which SMSwarriors itself subscribes and is bound in all territories where messages are sent by, or received from, the User, including but not limited to the following laws and codes of conduct in the specific territories listed below:
- United States: the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM) Act, the Telephone Consumer Protection Act and the Rules of the Federal Trade Commission relating to sending of unwanted commercial messages as well as the Mobile Marketing Association Code of Conduct available at mmaglobal.com.
- European Union: Directive 2002/58/EC, Directive 2000/31/EC, Directive 95/46/EC, Directive 93/13/EC, all national member state laws promulgated in terms thereof as well as the Mobile Marketing Association Code of Conduct available at mmaglobal.com.
- United Kingdom: the Data Protection Act 1998, available at ico.gov.uk, the Privacy and Electronic Communications Regulations, 26 May 2011 available atwww.ico.gov.uk as well as the Mobile Marketing Association Code of Conduct available at www.mmaglobal.com.
Registration and Security
To register to make use of the Services, a User must complete the registration process and must provide SMSwarriors with up to date, complete and accurate information as requested by SMSwarriors. Failure to provide accurate and complete information on registration may result in termination of the Services. A User may also be required to choose a Username and password. Users are responsible for maintaining the confidentiality of their Usernames and passwords and Users undertake not to divulge their Username and passwords to any other person. A User is entirely responsible for any and all activities that occur under its account and a User shall be strictly liable to make payment of all charges incurred under its account whether or not these charges are incurred by the User or any other person, authorised or unauthorised, intentionally or unintentionally, or as a result of any virus, hack or security breach.Users agree to notify SMSwarriors immediately of any unauthorized use of their account(s) or any other breach of securityIt is expressly prohibited for any person, business or entity to gain or attempt to gain unauthorised access to any page on this Website, or to deliver or attempt to deliver any unauthorised, damaging or malicious code to this Website. Any person who delivers or attempts to deliver any unauthorised, damaging or malicious code to this Website or attempts to gain unauthorised access to any page on this Website shall be held criminally liable and in the event that SMSwarriors should suffer any damage or loss, civil damages will be claimed.In the event that a User wishes to replace a person/employee using a specific SMSwarriors account of the User, and wishes to prevent the individual person from accessing the account, the account holder shall inform SMSwarriors in writing of this change and change all details on the account accordingly. SMSwarriors may refuse to act on the instructions of an account holder where the account holder fails to provide sufficient proof of its identity as the account holder and the authority of the person purporting to represent it in making such a request and SMSwarriors shall have no liability to the account holder or the individual person where it refuses to act in the absence of such proof, nor where it acts in good faith reliance of any information submitted to it in support of any such request made by any person purporting to represent the account holder, including in respect of any claims for breach of privacy, security or confidentiality.In the event that a person wishes to lodge a complaint that a User has used the Services in any manner that infringes on the complainant’s rights or the rights of another person, the complainant shall provide SMSwarriors with a written notice setting out:
- The full names and address of the complainant;
- The written or electronic signature of the complainant;
- Identification of the right that has allegedly been infringed or the law or code of conduct alleged to have been infringed;
- Identification of the material or activity that is claimed to be the subject of unlawful activity;
- The remedial action required to be taken by the service provider in respect of the complaint;
- Telephonic and electronic contact details, if any, of the complainant;
- A statement that the complainant is acting in good faith; and
- A statement by the complainant that the information in the complaint is to his or her knowledge true and correct and an indemnity by the complainant in favour of SMSwarriors for any misrepresentation of the facts or for wrongful suspension or termination of any Services by SMSwarriors in response to the complaint.
Data Protection & Privacy
Payment and Prices
Users are required to purchase credits which shall reduce for each message sent. The number of credits used per individual message depends on the message destination, the messaging route used, and Network Operator charges. The number of credits used per message is subject to change from time to time without prior notice and shall be indicated on the Website. Unless expressly indicated to the contrary in writing, the cost of a credit is inclusive of SMSwarriors database hosting, User support and message handling costs.SMSwarriors charges are located online at smswarriors.com/pricing/ and may be provided as a schedule to any other format of these terms and conditions. Network Operator’s charges for use of their networks and for SMS services may differ in respect of individual Network Operators and may be varied by Network Operators from time to time and without prior notice to SMSwarriors or its Users. SMSwarriors may vary its charges for SMS messages from time to time and without prior notice to Users. In the event that a Network Operator introduces reciprocal charges, SMSwarriors retains the right to increase the number of credits needed per message, for that specific network.Payment security: Users acknowledge that SMSwarriors makes use of secure third-party payment gateways including WorldPay, PayPal, Moneybookers and such others as may be disclosed on the Website from time to time and Users acknowledge and agree that SMSwarriors shall not be liable for any losses arising from the use of any third party payment gateways whatsoever.Cooling-off periods: SMSwarriors shall comply with any cooling off periods prescribed by law subject to any reasonable cancellation fees that may be imposed.Although not probably, charges and pricing are subject to change at any time without prior written notice by either party or such other notice as the Parties may agree on from time to time.Without prejudice to any other right that it may have in law, SMSwarriors shall have the right to suspend or disable the operation of any User account and the provision of services to any User where payment of all charges have not been made in full by the due date, or where SMSwarriors reasonably suspects that payment has been made or effected by fraudulent means.If the sending party (Suspecting Party) suspects of any mistake and/or fraudulent activity related to the subject matter of this Agreement which could be subsumed under the criminal law subject to Clause 19, Suspecting Party shall provide the other Party with immediate written notification or email of such mistake and/or fraudulent activity and the service will be blocked immediately. The sending Party shall remain responsible for all costs and expenses incurred between such times as notification has been given.
User Warranties and User Obligations
Users warrant that:
- Recipients of any commercial messages have a recent prior commercial relationship with the User and would reasonably expect to receive marketing communications from the originator and/or recipients have either requested the receipt of messages from the User or consented thereto;
- they shall comply with all applicable laws, regulations, Network Operator requirements or applicable codes of conduct which may be applicable in their jurisdiction and the jurisdiction of all persons to whom they cause messages to be delivered;
- they shall include their own contact details and identify particulars in their messages to ensure that complaints are directed at them and not at the Network Operator;
- they shall not send unlawfully, abusive, harassing, threatening or obscene messages to any End User or any other person or persons, including both natural and juristic entities; and
- they shall not engage in any fraudulent act by means of or in connection with any of the Services or in connection with the payment, therefore.
The sending Party undertakes that it will not use any services for any illegal, immoral or improper purpose or in any manner which contravenes applicable laws and codes, regulatory requirements of the appropriate jurisdiction or Mobile Operator requirements as they exist and as they change over time and undertakes not to allow any third party to do soThe sending Party shall under no circumstances sends unsolicited traffic to the platform of the receiving party. The sending Party shall at all times ensure that all agreements with its clients contain clauses that prohibit all sending of unsolicited traffic. The sending Party shall perform all such actions that prevent unsolicited traffic from reaching the platform of the receiving party.Should unsolicited traffic nonetheless be sent by the Sending Party or any of its clients or client’s clients to the platform of the receiving party, the following actions shall be taken:
- The party detecting that unsolicited traffic has been sent shall immediately contact the other party informing that unsolicited traffic has been sent,
- The Parties shall immediately initiate efforts to work in good faith and exchange information (with timestamp, content, destination number and originator) in order to determine the source of the unsolicited traffic as soon as possible after the incident,
- Sending Party shall immediately terminate the connection with its client that has originated the unsolicited traffic and shall ensure that such client is no longer connected to the platform of the receiving
- If Sending party sends any unsolicited traffic (Spam, etc.) and the receiving party is charged with fines or other penalty fees, these charges will be forwarded to the sending party with evidence and the sending party will honor.
Where a User breaches any of these terms and conditions, including terms relating to payment of any amount due to SMSwarriors then, without prejudice to any of its legal rights, SMSwarriors shall be entitled to, amongst other things, to cancel its agreement with the User, to suspend or terminate the provision of services to the User, to suspend, disable or terminate the User’s account/s, to sue for specific performance by the User, to claim damages and/or to retain any monies already paid by the User in respect of services not utilised by it as damages resulting from such breach and to set off any claims that SMSwarriors may have against the User from any other amounts due to the User by SMSwarriors.Where a User account is suspended or terminated due to any breach of these terms and conditions, SMSwarriors reserves the right to also suspend or terminate all other accounts registered by, or on behalf of such User, as well as suspend or terminate any account registered by any other person or persons whom SMSwarriors, in its sole and unfettered discretion, believes is affiliated with the User concerned.
Limitation of Liability, Warranties and Indemnities
THE USER HEREBY INDEMNIFIES AND HOLDS SMSWARRIORS HARMLESS AGAINST ANY AND ALL DAMAGES, LIABILITIES, FINES AND RISKS THAT MAY FOLLOW FROM THE TRANSGRESSION OF THESE TERMS AND CONDITIONS.SMSWARRIORS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF WHATSOEVER NATURE ARISING FROM THE USE OR INABILITY TO USE THE WEBSITE OR THE SERVICES OR ANY CONTENT PROVIDED FROM AND THROUGH THE WEBSITE.Furthermore, SMSwarriors makes no representations or warranties, implied or otherwise, that, amongst others, the content and technology available from the website are free from errors or omissions or that the Services will be 100% uninterrupted and error free.These terms and conditions together with any other contractual documents expressly referenced in these terms and conditions contain all of the terms of the agreement between the User and SMSwarriors.The Website and the Services are supplied on an “as is” basis and are not supplied to meet the User’s individual requirements. To the fullest extent permitted by law, SMSwarriors disclaims all representations and warranties relating to the Services (whether express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose). It is the sole responsibility of the User to satisfy itself prior to entering into this agreement with SMSwarriors that the Services and the Website will meet the User’s individual requirements and be compatible with the User’s hardware and/or software and message recipient handsets and devices.Users agree to hold SMSwarriors harmless and indemnify SMSwarriors fully against any claim by any third party, including message recipients or End Users, as a result of any system failure, message corruption, interruption or termination of services, unsolicited direct marketing, harassment, emotional disturbance, inappropriate or obscene content, breach of privacy or breach of data security, provided that none of the foregoing result from SMSwarriors’s own gross negligence or fraudulent acts or omissions.Users indemnify and hold SMSwarriors harmless against all reasonable damages, awards, penalties or legal costs claimed or imposed by any party as a result of any action, commission or omission by the User that constitutes a breach or contravention of any legislation, regulations, code of conduct or network provider codes or practice or acceptable usage policies.In the event of any litigation between SMSwarriors and the User, the successful party shall be entitled to recover their reasonable legal costs incurred by it in enforcing its rights on an attorney and client scale.Users further indemnify and hold SMSwarriors harmless against any reasonable claims, actions or damages from any party as a result of the fraudulent or unauthorised use of the User’s Username and password or loss thereof.Without derogating from the foregoing, in no event shall SMSwarriors be liable for any damages whatsoever, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use or unauthorised use of the Website or the Services, whether such damages arise in contract, delict, under statute, in equity, at law or otherwise.Notwithstanding the foregoing provisions and without derogating therefrom or limiting their application in any way, in the event that a User has a valid claim against SMSwarriors arising from any Services provided under these terms and conditions then the User’s claim shall be limited to payment of an amount equal to the amount paid for the Services that are the subject of the claim in the month prior to any such claim arising.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these terms and conditions is found to be unenforceable or invalid, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall not be affected by such unenforceability or invalidity and shall remain enforceable and applicable.
Disclosure of Information
The full name and legal status of SMSwarriors is BitSolutions Ltd, company registration number C62506, as duly registered in Malta with the Malta Financial Services Authority (MFSA).These terms and conditions apply to all websites operated by SMSwarriors including SMSwarriors.com and shall include any page or part thereof.Main business: Marketing and EventsCosts/payment methods. Taxes: The User shall be liable to make payment of any and all value added tax, general sales tax or other taxes applicable to the services in the User’s own jurisdiction and at the applicable rates. Unless expressly indicated to the contrary, all advertised or displayed prices are advertised and displayed exclusive of such taxes. The manner of payment: Payment methods include credit card, electronic transfer or cheque deposit where authorised by SMSwarriors.Records of transactions: Records of transactions may be obtained from SMSwarriors on request, or online at the relevant Credit History page.
All content, trademarks and data on this website, including but not limited to software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to SMSwarriors, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to the User herein, all other rights to all intellectual property on this site are expressly reserved.SMSwarriors shall grant a User an individual, personal, non-sublicensable, non-exclusive and non-transferable license (“the License”) to use its proprietary software and/or application service, in object code form only, and only in accordance with the applicable User documentation, if any, and only in conjunction with the relevant Services. The User may not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/application; copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to SMSwarriors products and/or services. The User acknowledges that SMSwarriors and its licensors retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights therein. Upon termination of the Services for any reason, this License will terminate and the User shall destroy and cease to use all software and applications in its possession. The software is provided and applications are offered “as is” and subject to the Service warranty disclaimers and limitations of liability found elsewhere in these terms and conditions. It is the responsibility of the User to test the Services should they wish prior to entering into this agreement.Content from the Website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of SMSwarriors.
Linking and Framing
Any third party site may link to this Website provided that such a link is directed at the home page of this Website. It is expressly prohibited for any person, business, entity or website to link to any page other than the home page of this Website, without the prior written approval of SMSwarriors.SMSwarriors may provide links to the User only as a convenience and the inclusion of any link does not imply SMSwarriors’s endorsement of such sites.Any linked third-party websites, pages or advertisements that may be accessible from the Website, including content posted in social media or RSS feeds displayed on the Website are not subject to the control of SMSwarriors. SMSwarriors shall not be held responsible or liable (whether directly or indirectly) in any way for the contents, use, or inability to use or access any such third party websites, pages or advertisements and any use or reliance thereon shall be at the Users sole and exclusive risk.It is expressly prohibited for any person, business, entity, or website to frame any page on this Website, including the home page, in any way whatsoever, without the prior written approval of SMSwarriors.
Apart from good faith search engine operators and use of the search facility provided on the Website by Users, no person may use or attempt to use any technology or applications (including web crawlers, robots or web spiders) to search, collect or copy content from the Website for any purpose whatsoever, without the prior written consent of SMSwarriors.The use of non-malicious search technology, such as 'web-crawlers' or 'web-spiders', to search and gain information from this Website is not permitted if such technology will result in slowing down this Website's server or copyright infringement of any data and information available from this website. Data and information may only be used as provided for in these terms and conditions. E-mail addresses, names, telephone numbers and fax numbers published on the Website may not be incorporated into any database, used for electronic or direct marketing or other similar purposes. No permission is given, nor is it implied, that information on the Website may be used to communicate unsolicited communications to SMSwarriors notwithstanding that such information may be published as SMSwarriors's contact information.
These terms and conditions shall be governed by, construed and interpreted in accordance with the laws of the Republic of Malta and the Maltese courts shall have exclusive jurisdiction in respect of any disputes that may arise between the User and SMSwarriors.
These terms and conditions constitute the entire agreement between SMSwarriors and the User.
If you have any questions, queries or wish to request permission to use any part of this Website, including, linking, framing, or searching, please contact us at the following address, which address shall be the address at which any legal notices or documents shall be required to be served:SMSwarriors