1. TERMS AND DEFINITIONS
1.1. Message: means information to be sent to the Recipient on behalf of the Partner and (or) its Client via the Rightsholder’s software product, using a dispatch channel selected by the Partner.
1.2. Message transmission channels (types of messages):
- SMS message: means a message consisting of at most 160 Latin alphabetic and (or) numeric characters, gaps included, or 70 non-Latin alphabetic and (or) numeric characters, intended for transmission over a mobile radio-telephonic communication network through a cell communication operator.
- VIBER Message: means a material of informational or advertising nature, sent via the Viber messenger, consisting of at most 1000 Latin alphabetic and (or) numeric characters, gaps included.
- Informational Voice Message: means information in the form of a Partner’s or Partner Client’s voice message, transmitted as a telephone call via radiotelephone communication network.
- WhatsApp Message: means a material of informational or advertising nature, sent via the WhatsApp messenger, consisting of at most 1000 Latin alphabetic and (or) numeric characters, gaps included.
1.3. Message Packet: means the aggregate of the Partner’s messages to be sent as one dispatch.
1.4. Message Recipient: means a natural or legal person being the end recipient of a message sent by the Partner and (or) its Client. Under this agreement, a Message Recipient can only be the Partner’s clients and (or) partners.
1.5. Partner’s Client: means a natural or a legal person purchasing goods, works, services from the Partner in compliance with the legislation of the country where messages are being dispatched.
1.6. Software Product: means the computer software owned by the Rightsholder, incorporating the information contained in databases in its entirety, and ensuring its processing by means of information technologies and facilities. The name of the computer software is: “MULTICHANNEL CLIENT NOTIFICATION SYSTEM”.
1.7. User Agreement: means a document published on the Rightsholder’s website https://sms.clinictor.com/ and defining the terms of use of the Software Product.
1.8. Other Terms of Use: of the Software Product means information related to the use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/.
2. SUBJECT MATTER OF THE AGREEMENT
2.1. The Rightsholder shall, for a fee and on terms defined herein, entitle the Partner to use the Rightsholder’s Software Product (hereinafter “the Software Product”) published on the Rightsholder’s website https://sms.clinictor.com/ for messaging purposes.
2.2. The Software Product is intended for autonomous generation of message packets by the Partner, the Partner’s Clients, and for dispatching such messages to recipients who have agreed to receive such messages, in compliance with the legislation of the country in which respective messages are dispatched.
2.3. The granting by the Rightsholder of the right to use the Software Product implies that the Rightsholder is not technically able to control the contents of information transmitted by the Partner and (or) its Client, numbers of recipients to which the information is sent by the Partner, the Partner’s Client, the existence of recipients’ consent to receive information from the Partner, the Partner’s Client, any other information identifying the Partner, the Partner’s Client, contained in the messages dispatched.
2.4. The exclusive holder of the right in the Software Product is the Rightsholder.
2.5. The messaging channel type agreed herein shall be chosen by the Partner and (or) its Client at their discretion, subject to prior approval by the Rightsholder of availability of the respective channel.
3. TERMS OF USE OF THE SOFTWARE PRODUCT
3.1. To become entitled to use the Software Product, the Partner shall undergo a registration procedure, following which, a unique account will be generated for the Partner, including a login and a password (hereinafter “identity data”).
3.2. For registration purposes, the Partner shall provide complete and accurate personal information in sections of the registration form, and maintain the information updated. The Partner warrants that the information provided at registration is accurate and updated, and shall on its own and at its own cost settle any claim on the side of the Rightsholder and (or) any third party, including claims addressed to the Rightsholder, concerning the contents of information provided by the Partner, and also shall indemnify the Rightsholder against any cost incurred in connection with the settlement of any such claim, within 3 (three) calendar days upon respective request by the Rightsholder.
3.3. Upon completion of the registration procedure, the Rightsholder provides to the Partner access to the Software Product for use, by sending a unique identification code to the telephone number of mobile radiotelephone communication network provided by the Partner.
3.4. Activation of the unique identification code by the Partner entails reservation of the specific identity data with the Partner, and creation of the Partner’s profile. Once the unique code is activated, the Partner shall be deemed registered in the Rightsholder’s Software Product. The Partner undertakes to refrain from transmitting the Partner’s data to any third party, and shall incur the risk of adverse effects in case that the Partner’s identification data are received by any third party. In this case, the Partner shall be liable for any operation performed by the third party using the Partner’s identity data, in particular for any violation of law by the said persons. The Partner shall, on its own and at its own cost, settle any claim on the part of the Rightsholder and (or) of any third party, including claims addressed to the Rightsholder, in connection with the use of the Partner’s identity data by any third party, and also shall indemnify the Rightsholder against any cost incurred in connection with the settlement of any such claim, within 3 (three) calendar days upon respective request by the Rightsholder.
3.5. When sending message packets using the Software Product, the Partner warrants that these will be sent solely to the persons consented to the receipt of such information by such way from the Partner, the Partner’s Client, as required.
3.6. Messages shall be sent to telephone numbers of a mobile radiotelephone network, which should be recorded in the format of federal numbers including the country code, the carrier prefix, the number of the message recipient.
3.7. In the course of forming and sending the message packets using the Software Product, the Partner, the Partner’s Client may use an alphabetic name identifying the message sender. Provided that the sender’s name shall not be a name of any legal structure (telecommunications carrier, bank or insurance institution, State or governmental agency, individual or corporate trademark owner, etc.), which the Partner, the Partner’s Client does not belong to, except where the entitlement to use such sender’s name is officially confirmed by the respective legal structure. The message sender’s name shall not be contrary to the legislation of the country in which respective messages are dispatched, shall not mislead the message recipients. The Partner shall, on its own and at its own cost, settle any claim on the part of the Partner and (or) any third party, including any claim addressed to the Rightsholder, in connection with any failure by the Partner to comply with the provisions of this clause, and also indemnify the Rightsholder against any cost incurred to settle any such claim, within 3 (three) calendar days upon receiving the respective request from the Rightsholder. In case any SMS message is formed and sent without the sender’s alphabetic name, the SMS message shall be sent with the sender’s numeric name assigned by the Software Product, or with the sender’s common name.
3.8. Messages are generated and sent to the telecommunications carrier for subsequent sending to recipients, using the Rightsholder’s Software Product. The message is sent by the respective telecommunications carrier pursuant to the provisions of the law of the country where the messages are dispatched. The Rightsholder shall provide technical support without interfering and without analyzing the contents of the message packet sent by the Partner and (or) by its Client, by providing assistance in the forwarding of the message packet to the respective telecommunications carrier. The Rightsholder shall not be liable for the non-delivery or late delivery of messages.
3.9. The time of message packet sending shall be the time of message transmission to the telecommunications carrier for subsequent sending to end recipients. At the time of sending the message packet to the respective telecommunications carrier using the Software Product, money shall be debited from the virtual e-account, according to the volume and number of messages sent and according to the Tariffs applicable at the time of message sending to the telecommunications carrier.
3.10. The Partner, the Partner’s Client shall at its discretion define the desired number of messages to be sent, choose the payment method among methods provided by this agreement, Tariffs for the use of the Software Product, and other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/.
3.11. In case of detecting any breach of this agreement, Tariffs for the use of the Software Product, or of other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/ on the part of the Partner, the Partner’s Client, the Rightsholder shall be entitled to disable the Partner’s profile without any prior notice.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. Under this agreement, the Rightsholder shall be obliged to:
4.1.1. Provide access to the Software Product by the Partner, unless otherwise provided herein. The provision of the right to use the Software Product in cases, other than provided herein, may be restricted due to any preventive maintenance and (or) repair works by the Rightsholder. The Rightsholder shall not be liable for any lack of access and of the right to use the Software Product, or for any impossibility to send and (or) deliver messages due to any preventive maintenance and (or) repair works by the telecommunications operator and (or) by any third party through which messages are transmitted to recipients, suspension of performance by the telecommunications carrier of its obligations toward the Rightsholder, and in other cases beyond the Rightsholder’s control.
4.1.2. Entitle the Partner to use the Software Product at the Tariffs for the use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/, applicable at the time of message sending to the respective telecommunication carrier for subsequent forwarding to recipients, unless any other Tariffs are agreed between the Parties in the respective annex here to.
4.1.3. Provide information (including documents) concerning the progress of implementation of this agreement with the respective Partner upon request of competent authorities.
4.1.4. Keep confidential any provision of this agreement, its supplements and annexes, and any information and data received by the Rightsholder hereunder.
4.2. Under this agreement, the Partner shall be obliged to:
4.2.1. Timely and fully pay the fee for the use of the Rightsholder’s Software Product at the Tariffs for the use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/, applicable at the time of message sending to the telecommunication carrier, unless any other Tariffs are agreed between the Parties in the respective annex hereto.
4.2.2. The Partner shall keep and daily update messaging stop lists. The stop lists shall include telephone numbers of recipients from whom any complaint/claim has been received by the telecommunication carrier, the Rightsholder, or the Partner; and names of senders in respect of whom any complaint/claim has been received by the telecommunication carrier, the Rightsholder, or the Partner; the subscribers who have withdrawn their consent to receive messages from the Partner and/or the Partner’s Client. The messaging stop lists shall be updated daily over the entire term of this agreement.
4.2.3. Daily request from the respective telecommunication carrier and (or) Rightsholder any information concerning recipients from whom any complaint/claim has been received regarding the Partner’s messaging, and include any such person in the Messaging stop list; and also daily request from the respective telecommunication carrier and (or) Rightsholder any information concerning the names of recipients from whom any complaint/claim has been received regarding the messaging, and include any such person in the Messaging stop list.
4.2.4. Refrain from any act which may damage the operability of the Rightsholder’s Software Product.
4.2.5. Refrain from dispatching messages, including ads, unless the recipient has expressed prior consent to receive the same, as prescribed by law. Refrain from spamming, unsolicited messages, messages affecting the operation of the Software Product, offensive or slanderous messages, spreading national, racial, or religious discord, and also not to use the Software Product to transmit or receive information in violation of copyright or any other right, or materials which are contrary to the current legislation of the country where the messages are dispatched.
4.2.6. Send messages to those recipients only who have consented to receive messages in the form prescribed by the law of the country where messages are dispatched.
4.2.7. Upon request, provide proof to the Rightsholder, of the fact that message recipients have expressed their consent to receive messages sent by the Partner and (or) by its Clients.
4.2.8. Upon registration of the profile, for the purpose of Software Product use, ensure strict compliance of the provisions contained herein.
4.2.9. Indemnify the Rightsholder against any losses incurred in connection with the settlement of any third party's claim regarding the performance (improper performance) of this agreement by the Partner.
4.2.10. Within 1 (one) day upon registration of the Partner’s profile in the Rightsholder’s Software Product, provide a letter bearing the authorized person’s signature and the corporate (sole proprietor’s) seal, if any, and other documents required, to the Rightsholder, according to which, the Partner confirms that it is the end sender of messages, and undertakes not to transfer the right to use the Software Product to any third party.
4.2.11. Keep confidential any provision of this agreement, its supplements and annexes, and any information and data received by the Partner hereunder.
4.2.12. Following the use of the Software Product, the Partner shall be obliged to delete all personal data used in the course of operating the Software Product.
4.3. Under this agreement, the Rightsholder shall be entitled to:
4.3.1. Notify the Partner by sending a notice to the e-mail specified by the Partner at the time of registration, and/or by publishing the information in the Software Product’s personal area, of any circumstances which can delay the messaging or make it impossible.
4.3.2. Disable the Partner’s or the Partner Client’s profile in case of detecting any failure to comply with this agreement or with other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/ by the Partner and/or the Partner’s Client.
4.3.3. Terminate unilaterally this agreement by giving a notice to the Partner’s e-mail address specified at the time of registration for the purposes of the Software Product use, and/or by publishing the information in the Software Product’s personal area, at least 5 (five) days prior to the supposed termination date. In this case, the money remaining on the Partner’s virtual e-account shall be transferred to the Partner upon written request, subject to compliance by the Partner with all its obligations under this agreement, the Tariffs for the use of the Software Product, and other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/.
4.3.4. Change unilaterally the Tariffs for the use of the Software Product and other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/, without any express notice to the Partner, unless otherwise provided by this agreement and its annexes. The new version of the said documents shall take effect once published in the informational telecommunication network Internet on the Rightsholder’s website https://sms.clinictor.com/, unless otherwise provided by the new version of the said documents, this agreement, and its annexes. The current version of documents referred to in this clause is always kept on the Rightsholder’s website https://sms.clinictor.com/.
4.4. Under this agreement, the Partner shall be entitled to:
4.4.1. In case the Partner does not agree to any change made unilaterally by the Rightsholder in the Tariffs for the use of the Software Product, other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/, and subject to giving a notice of such disagreement to the Rightsholder within 3 (three) calendar days upon making respective changes, terminate this Agreement. The use of the Software Product after changes have been made confirms the Partner’s consent to such changes.
4.4.2. Terminate this agreement unilaterally, by giving an at least 30 (thirty) calendar days’ written notice to the Rightsholder, provided that there is no money on the Partner’s virtual account, and there are no arrears in respect of the Rightsholder, as per clause 5.10 below.
4.4.3. Give a claim to the Rightsholder concerning failure to comply with the provisions of this agreement, using the form on the Rightsholder’s official website https://sms.clinictor.com/
4.4.4. Create a Partner Client’s profile to which the provisions of this agreement concerning the terms of use of the Software Product shall apply. The Partner may define any additional requirements for the Clients. The Partner shall be liable for any acts of the Partner’s Clients in connection with the use of the Software Product, as for its own acts. The Partner shall be entitled to fix its own Tariffs, but not lower than the Tariff published on the Rightsholder’s website https://sms.clinictor.com/. The Partner shall advise the Partner’s Clients on matters related to the use of the Software Product.
5. PAYMENT TERMS
5.1. Total fee payable for the use of the Software Product is calculated as the product of the Tariff applicable at the time of sending the respective message packet to the telecommunications carrier for subsequent forwarding to recipients, and the total number of messages to be sent as part of this packet.
5.2. The fee referred to in clause 5.11 above shall be transferred to the Rightsholder every time prior to the generation of the respective message packet, as provided by clause 5.6 below.
5.3. Payments under this agreement shall be in Euro/USD.
5.4. Tariffs for the use of the Software Product are published on the Rightsholder’s website https://sms.clinictor.com/, unless any other Tariff is agreed between the Parties in an Annex hereto.
5.5. In order to begin operations, the Partner shall transfer a Partner’s contribution in the amount specified on the website https://sms.clinictor.com/ to the Rightsholder’s current account. This is a mandatory minimum fee for connection to the partnership program, which shall be transferred to the User’s virtual e-account.
5.6. Prior to the use of the Software Product, the Partner shall prepay 100% of the value calculated under 5.1 above, by money transfer to the Rightsholder’s current account, or to the account published on the Rightsholder’s official website https://sms.clinictor.com/.
5.7. On the day of money receipt by the Rightsholder, equivalent money shall be credited to the Software Product Partner’s virtual e-account, less the commission levied by the persons effecting the transfer of the Partner’s money.
5.8. The money unspent after the use of the Software Product shall remain on the Partner’s virtual e-account. The date of the payment obligations performance by the Partner shall be the date of money receipt by the Rightsholder.
5.9. The number of messages sent shall be limited by the Partner’s positive balance on the virtual e-account.
5.10. In the event that messages are dispatched without prepayment, the Partner shall effect payment according to clause 5.1. above within (five) business days upon dispatch.
5.11. Upon completion of the reporting period of the right provided for use of the Software Product, the Rightsholder shall send the Partner a Deed of exercise of the right to use the Software Product (hereinafter “the Deed”) at least on the 15th of the month by mail. Upon the Partner’s request, the Deed may be sent to it by e-mail specified herein. The Deed shall be signed and returned to the Shareholder within 10 days upon receipt. If, within the specifies period, no countersigned deed, or a justified refusal to sign the same, is received from the Partner, the Partner should be deemed to agree with the fact of exercising by it of the right to use the Software product in the scope defined in the Deed, and that no it has no claim against the Partner in respect of the compliance with these agreements.
6. LIABILITY OF THE PARTIES
6.1. The Parties hereto shall be liable pursuant to the current law of the country in which messages are dispatched, on terms and pursuant to the provisions of this agreement.
6.2. In case of failure by the Partner to comply with obligations under clause 2 of this agreement, the Rightsholder may unilaterally suspend the Partner’s right to use the Software Product, until the cause of such suspension is eliminated.
6.3. The Partner shall, within 3 (three) calendar days upon the Rightsholder’s request, settle any claim on the part of the Rightsholder and (or) of any third party, including any claim addressed to the Rightsholder, and (or) indemnify the Rightsholder against any expenses and losses incurred by the Rightsholder in connection with the compliance with its obligation to pay fines to telecommunication carriers, administrative fines, legal costs which may be collected from the Rightsholder as a result of the Partner’s acts (omissions).
6.4. The Rightsholder shall not be liable for the Software Product’s inoperability in connection with the conduct of any preventive maintenance or repair works by the Rightsholder, or for any acts of telecommunication carriers entailing the incapacity to act hereunder.
6.5. The Rightsholder shall not be liable hereunder for any non-receipt or late receipt of messages by the recipient.
6.6. The Rightsholder shall not be liable for any break in the use of the Software Product in connection with any Software Product maintenance works, scheduled maintenance, or for any break due to any of the following events: electricity outage, fire, terrorist acts, and other force majeure events.
6.7. The Partner shall be fully liable for the accuracy and content of the information published or transmitted in form of messages (including by its Clients), and its eventual non-compliance with the provisions of advertising legislation, other applicable law.
6.8. The Rightsholder shall not be liable for the contents, sender’s name, recipients’ numbers used by the Partner to which messages are sent.
6.9. Payment of fines and other sanctions hereunder shall not exempt the Partner from performance of obligations provided by this agreement and by the law.
6.10. The Parties shall be exempted from liability for any full or partial failure to comply with the provisions of this agreement due to any force majeure event.
6.11. The Party affected by any force majeure event shall, within 10 calendar days, notify the other Party of the occurrence of any such event; otherwise, the affected Party shall be disentitled to refer to such event in the future.
6.12. The Partner shall, within 3 (three) calendar days upon the Rightsholder’s request, settle any claim on the part of Rightsholder and (or) of any third party, including any claim addressed to the Rightsholder, and (or) indemnify the Rightsholder against any documented expenses and losses incurred by the Rightsholder in connection with the compliance with its obligation to pay fines to telecommunication carriers, administrative fines, legal costs which may be collected from the Rightsholder as a result of the Partner’s acts.
7. SETTLEMENT OF DISPUTES
7.1. In the event that any dispute arises between the Parties in respect of the subject matter of the agreement, the Parties will make every effort to settle the same by negotiation. Any claim shall be examined within 30 days upon receipt.
7.2. In case the Parties cannot come to an agreement, the dispute shall be submitted to the Arbitration Court of the territory where messages are dispatched.
8. MISCELLANEOUS
8.1. In the event that, 30 calendar days prior to the expiry of this agreement, neither Party gives the other a written notice of its intent to terminate this agreement, the agreement shall be deemed extended for very subsequent calendar year on the same terms.
8.2. The Software Product shall be used pursuant to the provisions of this agreement, Tariffs for the use of the Software Product, and other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/. The terms of this agreement shall apply to the Parties’ legal relationship, unless otherwise provided by the Tariffs for the use of the Software Product, and by other terms of use of the Software Product published on the Rightsholder’s website https://sms.clinictor.com/, except the case provided by clause 5.5 of this agreement.
8.3. Should any provision of this agreement become invalid, it shall not prejudice the effect of the entire agreement.
8.4. The Parties acknowledge that any document e-mailed by the Parties shall have legal effect until delivery of the original of such document. The Rightsholder’s e-mail: info@clinictor.com.
8.5. This agreement is made in the English language and signed in two counterparts of same legal effect, one for each Party.
8.6. The Parties shall give a written notice of any change in their name, legal form, seat, actual address, postal address, INN (taxpayer code), bank and other details within 3 (three) calendar days upon any change in such data.