Terms & Conditions – Wavecell Inc.
1. OWNERSHIP AND LICENSING
1.1. Nothing in this Agreement (including, if any, any Appendices) is intended to effect an assignment by or to either Party of any right to intellectual property, including but not limited to any logo, mark, trademark, whether registered or unregistered (“Intellectual Property”) or any applications for registration of such rights.
1.2. Nothing in this Agreement shall entitle one Party to use the other Party’s Intellectual Property, except as specifically set forth herein or with the prior express, written consent of said other Party.
1.3. Each Party agrees that nothing in this Agreement confers on either Party any right of ownership in the other Party’s Intellectual Property which remain vested in the other Party. Client agrees that all Intellectual Property rights of Wavecell including, without limitation, all property rights in the Data Services, shall be and remain the absolute property of and shall vest and remain vested in Wavecell and, if licensed, its licensors, and except as expressly provided in this Agreement, no rights or licenses, express or implied, are hereby granted to Client in respect of the same. Wavecell agrees that all Intellectual Property rights in the Client Site and the Client brand, the Client Content and the web interface associated with the Data Services (together, the “Client Elements”) shall remain with the Client and its licensors and except as expressly provided in this Agreement, no rights or licenses, express or implied, are hereby granted to Wavecell in respect of the same. For the purposes of this Agreement, “Client Content” shall refer to any messages, numbers, email addresses or similar material of such nature provided by the Client to Wavecell for the purposes of the Data Services.
2. CONFIDENTIAL INFORMATION
2.1. All Confidential Information disclosed by either Party to the other Party, during the Term of the Agreement and for a period of three (3) years thereafter, shall not be used by the receiving Party except in connection with the activities contemplated by this Agreement, shall be maintained in confidence by the receiving Party and shall not otherwise be disclosed by the receiving Party to any other person, firm or agency, governmental or private, without the prior written consent of the disclosing Party. The obligation of confidentiality and non-disclosure shall not apply to such portion of the Confidential Information which (a) is or becomes generally available to the public other than as a result of disclosure by the receiving Party or its employees, representatives or agents; or (b) becomes available to the receiving Party on a non-confidential basis from a third party (unrelated to the receiving Party) which is entitled to disclose it; or (c) was known to the receiving Party on a non-confidential basis prior to its disclosure to the receiving Party by the disclosing Party; or (d) is independently developed or generated by the receiving Party without use of Confidential Information of the disclosing Party; (e) is required to be disclosed by law or court order; provided that the Party required to disclose Confidential Information under this clause (e) shall provide reasonable advanced notice to the other Party and shall permit such Party to oppose or limit the scope of such disclosure. “Confidential Information” means information which the disclosing Party desires to protect against unrestricted disclosure or competitive use by the receiving Party and which is clearly identified as confidential to the receiving Party. Confidential Information includes, but is not limited to, information concerning other party business methods and rates, business plans, client information and information concerning the technology and know-how of a Party. Confidential Information may include proprietary or confidential information of third parties that have granted licenses to the disclosing Party.
2.2. None of the terms in this Agreement shall be understood or construed as granting to the receiving Party a license or any other right to use or exploit the Confidential Information other than for the Data Services. The receiving Party shall not claim any patent or proprietary right based upon the provision of Confidential Information and shall defend and indemnify the disclosing Party from any such claims from the receiving Party, and any of its affiliates, consultants, representatives, agents or employees or others who may receive the Confidential Information from or through the disclosing Party.
3. REPRESENTATIONS AND WARRANTIES
3.1. WARRANTIES OF CLIENT. Client warrants that,
(i) to the best of its knowledge, the Client Content do not and will not infringe or violate the Intellectual Property rights of any third party;
(ii) Client Content will not
(a) violate any law or regulation;
(b) be defamatory, obscene, harmful to minors or child pornography; or
(c) contain, at the date of the Agreement, any commonly known viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (collectively “Prohibited Messages”); and
(iii) it shall make no representation or warranty on behalf of Wavecell to any client user (“Client User”, which, for the avoidance of doubt, shall mean a customer of the Client) concerning the Wavecell Services. Client agrees that Client Content shall be free from obscene materials when Client uses the services for marketing purposes. Wavecell’s sole remedy and Client’s sole liability for breach by Client of the foregoing warranties shall be as set forth in Sections 4 and 5 below.
3.2. WARRANTIES OF WAVECELL. Wavecell warrants that,
(i) to the best of its knowledge, the Wavecell Brand and the Wavecell Content, where applicable, associated with the Wavecell Service (collectively, the “Wavecell Elements”) do not and will not infringe or violate any Intellectual Property rights of any third Party; and
(ii) the Wavecell Content will not
(a) be defamatory, obscene, harmful to minors or child pornographic; or
(b) contain, at the date of the Agreement, any commonly known viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, and
(iii) it shall make no representation or warranty on behalf of Client in relation to Client content. Wavecell warrants and represents that the Services provided hereunder to Client shall be provided in a professional and workmanlike manner in accordance with industry standards. Wavecell further warrants it has all the necessary rights and permits to enter into and perform its obligations under this Agreement. Except as expressly set forth in this Agreement, Client’s sole remedy and Wavecell sole liability for breach by Wavecell of the foregoing warranties shall be as set forth in Sections 4 and 5 below.
3.3. DISCLAIMER. Except as expressly set forth in this Agreement, neither Party makes any representation or warranties to any person or entity with respect to its Data Services, brands, content or otherwise, and each Party hereby disclaims all implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, accuracy of data or information provided through its Data Services and non-infringement and implied warranties arising from course of dealing or course of performance. Except as expressly set forth in this Agreement, Data Services are provided “as is” and Wavecell expressly disclaims any representation or warranty regarding the performance, availability, functionality or any other aspect of its Data Services. Wavecell and its suppliers make no warranty that the use of the Data Services will be uninterrupted, timely, secure, or error-free; nor do Wavecell or its suppliers make any warranty as to the results that may be obtained from use of the Data Services. The disclaimers on liability shall not apply to the extent that liability was due to the negligence, act or omission of Wavecell or a third Party.
3.4. LEGAL WARRANTIES. Client warrants that:
(i) All elements provided by Client for the use of the Data Services, including but not limited to the Client Content and Personal Data of End Users, will not be in violation of and is in full compliance with any law, regulation, or codes of practice, including but not limited to the General Data Protection Regulations (EU) 2016/679, the R.A. 10173 (Data Privacy act of 2012), the R.A. 7394 (Consumer Act of the Philippines), the Senate Bill No 1384 (Spam Control Act 2012); and
(ii)None of the Client Content has been generated or obtained through the use of a dictionary attack or address harvesting software.
3.5. Client undertakes that it shall do all things necessary within its control to ensure that Wavecell, in providing the Data Services, remains compliant with all applicable laws, regulations or codes of practice.
4.1. INDEMNIFICATION. Client shall fully indemnify Wavecell for any claim or loss raised by a third party, or any fines or penalties by any governmental authority, caused by any non-compliance with any provisions of this Agreement. The Parties acknowledge and agree that Client’s indemnification obligation will be limited to the amount of limitation of liability that Wavecell may have contractually with any such third party.
4.2. INDEMNIFICATION PROCEDURE. As a condition of Client’s obligations under this Section 4, Wavecell agrees to
(i) promptly notify Client in writing of any indemnifiable claim, and all threats, claims and proceedings related thereto,
(ii) give Client the opportunity to defend or negotiate a settlement of any such claim at its expense, except that Client shall not enter into any settlement that imposes any executory obligation on Wavecell (beyond the payment of money in settlement of the claim) and does not unconditionally release Wavecell without Wavecell’s prior written approval, and
(iii) use best efforts to facilitate Client in defending or settling such claim at the Client’s expense.
5. LIMITATION OF LIABILITY
5.1. The total liability of Wavecell under or in connection with this Agreement shall be limited as follows:
(i) All aggregate claims under this Agreement (whether arising from breach of contract or warranty or from negligence or strict liability or otherwise) relating to the unavailability or nonconformity of a Wavecell Service shall not exceed fifty thousand Euros (EUR 50,000).
(ii) Wavecell shall not be liable for any claim due to the negligence or failure of Wavecell’s responsible telecommunication service provider; for the avoidance of doubt such negligence or failure shall be determined where the Wavecell Service could be provided by an alternative telecommunications service provider.
5.2. Nothing in this Agreement excludes or limits the liability of either Party for death or personal injury caused by either Party’s negligence or fraudulent misrepresentation.
5.3. In no event shall either Party be liable for any indirect, incidental, special or consequential damages (including but not limited to such damages arising from breach of contract or warranty or from negligence or strict liability or otherwise), including loss of profits, revenue, data or use, or for interrupted communications, incurred by either Party in connection with this Agreement, even if the other Party or any other person has been advised of the possibility of such damages.
6. SERVICE USAGE
6.1. SPAM, ABUSIVE OR INAPPROPRIATE CONTENT
(i) Client shall not under any circumstances, knowingly and willfully, transmit any message via Wavecell which is
unsolicited, for example where the recipient has not explicitly requested the message or where the message or originator is as such that the sender cannot be easily identified; or
(a) contains content that includes spyware, viruses, worms, Trojan horses, adware or other malware, or exposes the recipient to such programs in an indirect way; or
(b) contains content deemed illegal by the Philippines law and/or the law of the recipient’s country; or
(c) is offensive, abusive, defamatory, threatening, indecent, menacing, misleading or discriminatory, or otherwise intended to cause distress, annoyance, inconvenience, worry or upset to the recipient; or
(d) contains copyright works, trademarks or other Intellectual Property without the written permission of the rights holder; or
(e) may bring the name of Wavecell into disrepute.
(ii) If Client discovers that Prohibited Messages, as described above, have been submitted to Wavecell then Client shall, to the best of its abilities, notify Wavecell at the earliest possible opportunity and no later than 24 hours after discovery of the incident. If Wavecell discovers that Client has transmitted Prohibited Messages, then Wavecell shall, to the best of its abilities, notify Client at the earliest possible opportunity and no later than 24 hours after the discovery of the incident.
(iii) As a result of Prohibited Messages (as may be reasonably determined by Wavecell) being transmitted by Client to Wavecell, Wavecell shall first notify Client of the purported Prohibited Message and Client must rectify the event to comply with this Service Agreement. Wavecell shall be entitled, without any liability, to suspend or modify the Wavecell Services as may be reasonably necessary to ensure that it is in compliance with such applicable laws, regulations or codes of practice. Where the event is capable of being remedied and Client fails to remedy the said event, Wavecell shall provide to Client notice prior to the suspension. In the event the Parties are unable to further resolve the matter, Wavecell may suspend Client’s account or in extreme cases, terminate Client’s account and Agreement. In the instance of fines being levied against Wavecell as a result of Prohibited Messages being sent by Client, provided that Client has failed to notify Wavecell prior to transmission, Client shall be liable to pay each fine in its entirety.
6.2. SECURITY AND PRIVACY. Client shall be responsible for keeping account and connection credentials secure and private, for choosing passwords of strong enough complexity, and for implementing IP address based access controls where applicable. Wavecell shall not be liable for any indirect, incidental, special or consequential damages arising from any intrusion of Client’s online customer account or the unauthorized use of Client’s credentials, including (without limitation) loss of profits, loss of revenue, or interrupted communications, provided that such intrusion was not due to the negligence, act or omission of Wavecell. Client will transmit messages over Wavecell platform using HTTPS protocol. Wavecell may disclose any messages transmitted over the Wavecell platform to the extent permitted by law to protect Wavecell rights or property, including (without limitation) to protect the operation of the Wavecell platform, or to comply with the law or regulatory enquiries or requirements.
6.3. SOURCE AND DESTINATION ADDRESSES. Where applicable to do so, Client acknowledges that correct source address Type Of Number (TON) and Number Plan Indicator (NPI) settings, and correct source and destination address formatting, according to GSM specification, must be set for each message submitted to Wavecell. Client acknowledges that failure to correctly set such settings and formatting may result in message delivery failure or the incorrect representation of the source address when it is displayed on the receiving device. Wavecell shall not be responsible for checking or modifying above-mentioned settings or formatting.
(i) Wavecell shall make available Data Services to Client as defined in this Agreement. Wavecell shall notify Client if it believes abuse (as defined in section 6.1) of a Service is taking, or has taken place. An abused Service shall be deactivated until Client resolves the incident to the commercially reasonable satisfaction of Wavecell.
(ii) Any attempt by Client to influence their account in order to achieve gain to which they are not entitled, including but not limited to exploiting undocumented features of an account or service, shall result in the immediate suspension of Client’s account in accordance with Clause 6.1. Client is liable to repay Wavecell for the full amount of the value of any improper gain.
6.5. SUSPENSION OF DATA SERVICES. Client acknowledges that Wavecell has the right to cease the Data Services in respect of any individual who has given notification that such individual does not, or is withdrawing, consent to receive messages (a “Withdrawal Consent Notification”), whether such Withdrawal Consent Notification was received indirectly or directly by Wavecell. Wavecell shall inform Client where it has received such Withdrawal Consent Notification directly.
7. CHARGES AND PAYMENT
7.1. CHARGES. Client shall pay Wavecell at the applicable rate (without limitation):
(i) for charges for successful SMS-MT submitted messages using any delivery method,
(ii) any applicable Value Added Tax.
7.2. PRICING. Price per SMS sent is detailed in Pricing Section of this Agreement. Any SMS sent to a destination not detailed in such Pricing Section will be charged as per the Standard Routing Price available on Client’s Customer Portal under the pricing tab.
7.3. PAYMENT CONDITIONS. Failure to pay any amount due as per this Agreement conditions shall constitute a breach of these terms.
7.4. POST PAYMENT CONDITIONS. Client shall pay charges in arrears, in which case:
(i) Unless otherwise specified by Wavecell, Wavecell will issue invoices to the Client on a monthly basis;
(ii) Such invoices shall be paid by the Client within thirty (30) days from the date of the invoice sent to Client;
(iii) Each invoice will itemise the Data Services delivered within the relevant month or other period.
7.5. SECURITY DEPOSIT. Client shall pay to Wavecell the Deposit amount that is specified in this Agreement within five (5) calendar days after the date of this Agreement. The Deposit shall be held as security for the payment obligations of the Client. Wavecell shall have the right to apply the Deposit towards making good any default of the Client, and the Client shall pay Wavecell any such applied amount within seven (7) days to maintain the Deposit amount. Security Deposit will be refunded upon termination of this Agreement to Client once all defaults of the Client have been cleared.
7.6. RECEIVED PAYMENTS. In the case of payment by bank transfer, payment shall be deemed to have been received as soon as Wavecell has confirmed that the correct amount has been deposited in the agreed currency in the agreed Wavecell bank account. Client must allow reasonable time for payments to be received and any anti-fraud checks to be carried out. Wavecell shall notify Client by email once a payment has been received.
7.7. PAYMENT TRANSACTION FEES. Client shall pay any applicable transaction or currency exchange fees levied by the Client’s bank, Client’s payment partner, or any intermediate banks or financial institutions, that are incurred when making a payment to Wavecell.
7.8. PAYMENT BY BANK TRANSFER. Payment by bank transfer must be initiated by the creation of an invoice. An invoice may be created by Wavecell or Client. A payment reference shall be included in the invoice that must be quoted in the payment transfer details when payment is made. Wavecell bank account details are included on every invoice and it is the responsibility of Client to pay to the correct bank account matching the agreed currency. Wavecell shall communicate any changes in Wavecell’s bank account details to Client, which change shall be effective upon acknowledgment by Client.
7.9. FREE TRIALS AND TESTING CREDITS. At the discretion of Wavecell, free trial periods or testing credit may be issued for which no charges shall apply. Such free trial periods and any testing credit is intended for Client to test the capabilities of the Wavecell Service. During such periods, all these terms apply.
7.10. TAXES. Unless otherwise stated, all charges exclude taxes, including (without limitation) sales, value-added, excise, or other taxes and duties including penalties and interest. Each party shall pay their own taxes. If any withholding tax is levied on the payments, then the Client shall increase the sums paid to Wavecell so that the amount received by Wavecell after the withholding tax is deducted is the full amount Wavecell would have received if no withholding or deduction had been made.
7.11. MESSAGE CHARGES. Wavecell charges for each submitted message consisting of up to 140 bytes of payload data, after any applicable GSM encoding has been performed or equivalent to 160 character using GSM-7 encoding. Messages containing more than 140 bytes of payload data, after any applicable GSM encoding, shall be automatically split and concatenated by Wavecell, and each resulting part shall be charged for as a separate message. Wavecell charges message rates based on the specific country in a destination that a message is sent to. Destination shall be determined by the Mobile Network Operator in each destination country, as recorded by the detailed report. Message charges shall be deducted from Client’s credit balance immediately upon message submission. Current message rates may be viewed from within the Wavecell online Client account.
7.12. PRICING AND COVERAGE CHANGES. From time to time Wavecell shall issue changes to Client’s message pricing and coverage, where changes can include:
(i) the addition of destination networks,
(ii) the removal of destination networks, or
(iii) the modification of price of destination networks.
Such changes shall be available in real-time on Wavecell Customer Portal in the pricing section. Upon request from Client, changes can be sent by email to Client’s billing contact(s), or primary contact(s) if no billing contact(s) is/are available, and shall be effective immediately. Pricing and coverage changes shall be considered as communicated to Client at the time the email is recorded as sent by Wavecell. Wavecell shall not be liable for any indirect, incidental, special or consequential damages arising from pricing and coverage changes, including (without limitation) loss of profits, revenue, or interrupted communications.
7.13. CREDIT LIMIT. Credit limit means the ceiling value of credits allowed to be spent by Client on Wavecell Platform over one (1) month. In the event Client reaches the limit of the Credit Limit allowed by Wavecell, the Data Services will be interrupted. Such interruption will last until Client has fully paid all amounts outstanding. Once payment has been validated by Wavecell, the credit balance on the Client’s account will be increased by the amount paid. In order to facilitate the operation of the Data Services, Wavecell may extend the Credit limit on Client’s account. Such extension of CreditLimit should be accompanied by an increase of the Security Deposit.
7.14. OVERDUE PAYMENTS. Wavecell shall charge yearly interest at a rate of 6% on all overdue invoices relating in whole or part to a negative currency balance on Client’s account, starting on the date the invoice became overdue and ending on the date that the overdue payment is received. Where the overdue invoice only consists in part of a negative currency balance on Client’s account, Wavecell shall only charge interest on the total negative amount and not on any prepayment part. Wavecell shall clearly state the payment terms on all invoices issued to Client. Where the payment term is “Immediate”, the invoice shall be considered overdue if payment has not been received by Wavecell within 7 days. Details of invoices for which payment has not yet been received shall be made available by Wavecell to Client in the Billing section of Client’s online Client account.
7.15. MESSAGE STATISTICS. Wavecell shall record the number of messages successfully submitted by Client each day from 00:00:00 up until and including 23:59:59 GMT time, along with the associated destination country, destination network, and charged price. Statistics for the previous day shall be verified automatically each night to ensure
(i) that each submitted message has been assigned a unique identification number, and
(ii) that each submitted message has been successfully assigned to an outgoing connection for onward delivery.
Client shall not be charged for any message that does not satisfy both of the above-mentioned criteria. Long messages (exceeding 140 bytes after GSM encoding, if necessary) that are automatically split and concatenated by Wavecell shall be recorded as a single message where the charge reflects the sum of the charges for each resulting message part, in order to bring to the attention of Client that long messages have been submitted to Wavecell.
7.16. MESSAGE STATISTICS DISPUTES. In the event of an imbalance between message statistics recorded by Client and messages statistics recorded by Wavecell, Client shall notify Wavecell within 7 days from the invoicing date that the imbalance refers to and provide Wavecell with a detailed report for each disputed period and message (including MSISDN, Message ID, timestamp, country, operator, message or DLR status, look-up results if applicable). Wavecell shall investigate each reported imbalance and shall notify Client as to whether an adjustment to Client’s currency balance is necessary. Wavecell reserves the right to decline to investigate a message statistics imbalance reported after 7 days of the date that the imbalance refers to.
7.17. RIGHT TO COLLECT AGAINST FUNDS ON DEPOSIT. If full payment of undisputed amounts is not received by Wavecell when due, Wavecell shall have the right to make payment out of funds on deposit.
8. TERMS AND TERMINATION
8.1. This Agreement shall commence as of the date of execution (either electronic or in writing) and, unless earlier terminated pursuant to Section 8.2 below, it shall continue for a period of one (1) year (the “Initial Term”). At the expiration of the Initial Term, the Agreement shall be renewed for successive one year periods (each such period referred to as the “Renewal Term”), unless or until
(i) either Party terminates the Agreement at any time after the Initial Term upon thirty (30) days advance written notice, or
(ii) the Agreement is otherwise terminated in accordance with the provisions Section 8.2.
The Initial Term and, if applicable, Renewal Term(s) are referred to as the Term.
(i) Termination for cause. The Agreement may be terminated (as of right and without judicial intervention) by either Party in the event that:
(a) The other Party has breached any material obligation under this Agreement (unless that breach arises from any of the special circumstances set out in Section 9.7 of this Agreement), and such breach is not remedied within ninety (90) days for non-monetary breaches or within thirty (30) days for monetary breaches of the breaching Party’s receipt of the non-breaching Party’s written notice specifying the breach in reasonable detail and demanding its cure;
(b) The other Party is unable to pay its debts when due or otherwise becomes insolvent, is the subject of any order made, or a resolution is passed, for its administration, winding-up or dissolution (otherwise than for the purposes of an amalgamation or reconstruction), has an administrative receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets, enters into or proposes any composition or arrangement with its creditors generally; or is the subject of any event or circumstances analogous to the foregoing in any applicable jurisdiction.
(c) Wavecell cannot provide a workable resolution not compliant with Data Services defined in this Agreement. Client shall notify Wavecell as per the section 9.5 “Notices” if Client records non compliancy of Data Services.
(ii) Termination for convenience. Subject to Clause 8.1(i), both parties shall not terminate this Agreement for convenience during the Initial Term.
(iii) Except as explicitly set forth elsewhere in this Agreement, the foregoing rights of termination shall be in addition to and not in lieu of any other legal or equitable remedies that the terminating Party may have.
8.3. EFFECT OF TERMINATION
(i) Return of Confidential Information. Within thirty (30) days following any expiration or termination of the Agreement, each Party shall return the Confidential Information of the other Party and shall delete all copies of such Confidential Information from any computer storage; provided that neither Party will be required to delete copies of Confidential Information that are included within a backup or archival copy of such Party’s computer systems made in the ordinary course of business.
(ii) Survival. The provisions of the Sections of the Agreement entitled Ownership of Technology, Confidential Information, Representations and Warranties, Indemnification, Limitation of Liability, Effect of Termination and Miscellaneous, shall survive any termination or expiration of this Agreement.
9.1. RELATIONSHIP OF THE PARTIES. Notwithstanding any provision hereof, for all purposes of the Agreement each Party shall be and act as an independent contractor and not as an employee, employer, partner, joint venturer or agent of the other and shall not bind nor attempt to bind the other to any contract, liability or obligation of any kind.
9.2. NON-SOLICITATION. Both Parties agree that, during the Term of this Agreement and for two (2) years after its termination, they will not directly or indirectly employ or offer employment to any person who was employed by the other Party unless such person shall have ceased to be employed by the respective Party for at least six (6) months.
9.3. ASSIGNMENT. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement upon notice to the other Party in connection with a merger, reorganization, consolidation, re-incorporation, or sale of all or substantially all assets or all the capital stock of the Party. This Agreement shall be binding upon and inure to the benefit of any successors and assigns.
9.4. AMENDMENT OR MODIFICATIONS. Any amendments or modification of any provision hereof must be in writing, dated, and communicated to both Parties and be accepted by both Parties for application.
9.5. BUSINESS DAY. A Business Day means a day which is not a Saturday or Sunday or a public holiday in Philippines.
9.6. NOTICES. Any notice or communication under or in connection with this Agreement shall be in writing and shall be delivered personally, or by post, email, telex cable or facsimile to the addresses or telefax numbers given in this Agreement or at such address or telefax numbers as the recipient may have notified to the other Party hereto in writing or by advertising or by advertisements in the newspapers. Proof of posting or despatch or transmittal of any notice or communication to the other Party shall be deemed to be proof of receipt:
(i) in the case of a letter, on the fifth (5th) Business Day after posting; and
(ii) in the case of an email, on the Business Day immediately after successful transmission;
(iii) in the case of a telex or cable, on the Business Day immediately after successful transmission; and
(iv) in the case of a facsimile, on the Business Day immediately after successful transmission.
Wavecell shall ensure the relevant Client departments are informed of the following:
- Pricing/Coverage Update
- Agreement notice
9.7. FORCE MAJEURE. Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, telecommunication failures (including any systemic Internet failures and any interruptions in services of Internet or mobile service providers or operators), transportation delays, earthquakes, fires, floods, labour disturbances, riots or wars (“Force Majeure Event”). Notwithstanding the foregoing, Force Majeure Event and termination of this Agreement due to Force Majeure shall not affect Client’s payment obligations arising out of this Agreement.
9.8. COMPLIANCE WITH LAWS
(i) In its performance under this Agreement, the Parties shall strictly comply with all applicable laws, codes and regulations, and specifically with any personal data protection, health, safety and environmental laws, ordinances, codes and regulations of any jurisdiction where this Agreement may be performed. For avoidance of doubt, the Parties shall comply, and shall ensure that each of its principals, owners, shareholders, officers, directors, employees and agents complies with all applicable anti-bribery and corruption laws in any business dealings and activities undertaken in connection with this Agreement. Wavecell further warrants that in providing the Data Services under this Agreement, Wavecell shall strictly comply with all applicable data protection laws relating to the processing of data.
(ii) Client shall comply with all applicable laws or regulations in any country where message services are sent, marketed or provided.
9.9. WAIVER. No failure by either Party to insist upon the strict performance of any covenant, duty, agreement or condition hereof or to exercise any right or remedy consequent upon a breach hereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
9.10. COUNTERPARTS. This Agreement may be executed in counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
9.11. EXCLUSION OF THIRD PARTY RIGHTS. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this Agreement.
9.12. GOVERNING LAW AND JURISDICTION. Each Party irrevocably agrees to submit to the law and non-exclusive jurisdiction of the courts of Philippines over any claim or matter arising under or in connection with the Agreement or the legal relationships established by the Agreement.
9.13. CUSTOMER REFERENCE. Wavecell may refer to Client as a customer in sales presentations, marketing vehicles and activities.
9.14. SEVERABILITY. If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible and (b) such invalidity illegality or un-enforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
9.15. PRECEDENCE ORDER. Unless otherwise expressly stated in the Agreement, in the event of any inconsistencies between the provisions of the main part of this Agreement and the content of any of the Appendices (if any), the main part of this Agreement shall take precedence over the Appendices (if any).