Terms and conditions

Mpulse, société anonyme
7, rue J. Fischbach - Z.A. am Bann - L-3372 Leudelange - Luxembourg
Tél.: (+352) 26 33 85 - 1 - Fax: (+352) 26 33 85 - 20 - Email: info@mpulse.lu
RCS B115875 - TVA-EU: LU21162168 - TVA-LU: 2006 2209 403
BGL BNP Paribas: IBAN LU12 0030 2101 1749 0000, BIC BGLLLULL
Office business hours: 8:30am - 12:00pm / 2:00pm - 6:00pm from Monday to Friday except on holidays.

Definitions

SMS (Short Message Service): Designates the messaging service allowing the sending and receiving of alphanumerical or binary messages from a mobile terminal.

SMS-MO (Short Message Service Mobile Originated): Designates a SMS sent by a User from his mobile terminal.

SMS-MT (Short Message Service Mobile Terminated): Designates a SMS received by the User on his mobile terminal.

SMS-C (Short Message Service Center): Designates the server managing both incoming and outgoing SMS messages to a mobile operator.

Mobile operator (Luxembourg-based): A company holding a licence to operate a mobile telephony network (within Luxembourg).

Customer: Designates any physical person entered upon the Commercial and Companies Register, any legal person or public body which provides a service to Luxembourg-based mobile operator Users.

Recipient or Users: Designates any subscriber or customer of one of the prepaid or post-paid ranges of services offered by one of the Luxembourg-based mobile operators.

LuxSMS Contacts or Service: all applications accounting for the service provided by Mpulse on the Internet having as main features the sending and receiving of SMS Messages, as described in the sales documentation as well as on the www.luxsms.lu Web Site.

MSISDN (Mobile Station Integrated Services Digital Network): Designates the Users mobile number.

Contract: the contract between Mpulse and the customer contains the following parts:

  • Purchase order,
  • Terms and conditions.

Article 1 Purpose

The purpose of this agreement is to define the following:

  • firstly, the terms and conditions on the basis of which Mpulse activates an account on LuxSMS Contacts,
  • secondly, each of the parties undertakings, rights and obligations.

1.2 Mpulse expressly reserves the right to refuse access to the LuxSMS Contacts Service covered by this contract to any Provider who has previously entered into a contract for the Mpulse LuxSMS Contacts range of services and whose contract has been terminated less than six months previously, or less than two years in the event of a recurrence, following a breach by the provider of his contractual obligations.

Article 2 How the SMS Contacts range of services works

2.1 Through the LuxSMS Contacts range of services, Customers can send MT-SMS to recipients and receive MO-SMS sent by mobile operators subscribers or customers.

2.2 Mpulse will charge the Customer for the use of the service at current tariff, published on www.luxsms.lu or in the commercial documentation.

Article 3 The Customers undertakings

3.1 The Customer undertakes to comply with current laws and regulations on the broadcasting and content of SMS messages.

3.2 The Customer undertakes not to harm Mpulses brand image either through the content or through the promotion of the Service he provides through SMS messages.

3.3 The Customer takes sole responsibility for any information, service messages or content of any nature whatsoever delivered to mobile operator customers and/or subscribers through the Service.

3.4 The recipients consent (anti-spam rule):

The Customer undertakes only to send SMS messages to recipients who have previously given their consent. The Customer undertakes to provide Users with an easily accessible unsubscribe procedure which must be effectively implemented within a period of two (2) working days.

Mpulse reserves the right to ask the Customer to provide proof that one or more given recipients have agreed to the sending of messages and to provide full documentary evidence within a maximum of five (5) working days.

3.5 The Customer undertakes not to send any SMS messages which have or which might have an impact on the SIM card (downloading of address book, etc.) without prior written authorisation from Mpulse.

In the same way he undertakes not to send any SMS which might affect the proper operation of the mobile phone or which might give access to personal data without the Users knowledge.

Article 4 Mpulse s undertakings

4.1 Mpulse will configure LuxSMS Contacts in manner to give access to the customer.

However, Mpulse reserves the right to restrict and/or prevent certain users from accessing the Service in order to guard against fraud and/or excessive consumption.

4.2 Mpulse shall make every effort to:

  • handle all of the routing of the SMS from LuxSMS Contacts to the mobile operators SMS-Cs and from the SMS-Cs to the Customer,
  • ensure that LuxSMS Contacts offers an availability rate equivalent to 99% over a year (excluding planned maintenance, operators SMS‑C servers downtime and incorrect operation of the network and the Internet connections),
  • restore LuxSMS Contacts to full operation within an average of four (4) working hours,

This routing time is calculated on the basis of the MT SMS message being left on MpulseS LuxSMS Contacts until this message is received by the mobile operators SMS-C server.

4.3 Mpulse undertakes to make every effort to guarantee the permanence, continuity and quality of the service. In this respect it has an obligation of due care.

4.4 For the duration of the Contract, Mpulse reserves the right to implement any technical developments and to make any alterations to the technical specifications accordingly.

4.5 Mpulse shall provide the Customer with a Customer Service department entrusted with the task of handling the commercial monitoring and administrative management of the Contract.

Article 5 Financial Conditions

5.1 Service tariffs for the User

The MO-SMS sending price is freely determined by mobile operators. Customers have no right to any income in relation with incoming MO-SMS.

5.2 Billing the Customer

The closing/installation costs, the monthly subscription for the provision of an access to LuxSMS Contacts, all MT-SMS sent by the Customer to the Users, as well as other services which might be contracted shall be billed at the tariffs stated in the offer, product brochure and/or the Internet sites www.luxsms.lu and www.contacts.lu. Any additional costs payable to the mobile operators shall either be paid directly to the operators or billed by Mpulse on the basis of the terms and conditions chosen in the offer.

5.3 Procedure for the settlement of any disputes relating to invoices

If the Customer should dispute the totals billed by Mpulse, he undertakes to provide Mpulse with the number of MT-SMS sent by him, over the course of the current period.

In order to reach an amicable agreement, Mpulse undertakes to examine the details provided by the Customer and to compare them with its own information.

In this case the total which was initially calculated by Mpulse shall nevertheless be provisionally used as the basis for the calculation of the sums respectively payable by each of the parties, pending the settlement of the dispute.

Article 6 Personal Data

Mpulse may send the MSISDN to the Customer.

The Customer expressly undertakes not to use any of the data on Users to which he might have access for the provision of the Service, in particular their telephone number, for purposes other than those for which this data has been supplied.

He guarantees compliance with this provision by the members of his staff and by any subcontractors he might use.

The Customer must take all necessary steps in order to guarantee the protection and confidentiality of the personal information he holds or he processes in strict compliance with current legal provisions.

Article 7 Term

The Contract is entered into for an unspecified term from the moment the customer has completed the registration procedure. The customer can terminate the contract at any time by using the appropriate online procedure available at the www.contacts.lu web site. Mpulse may terminate it at any time by sending a simple e-mail message giving one (1) months notice.

Article 8 Suspension Termination

8.1 If one of the Parties should breach any of his obligations or undertakings for the purposes of the performance of the Contract, the other Party may send him formal notice to remedy this breach by registered letter with proof of receipt. If the Party in question fails to remedy the breach, the other Party is free to suspend access to the Service within 2 days following receipt of the formal notice or to terminate the contract within 15 days from receipt of the formal notice without prejudice to any damages which might be payable as a result. In the event of a suspension and for as long as it may last, the Customer must continue to pay the sums covered in article 5.1 of this contract.

8.2 As an exception to the paragraphs above, Mpulse may suspend or terminate this contract ipso jure, without prior formal notice and without any indemnity being payable to the customer in the event of clear unfairness noted by Mpulse and if there is an urgent need to call a halt to the actions in question.

Any frozen sums shall not accrue interest. In any case, Mpulse may refer the case to a judge sitting in chambers in order to obtain an immediate suspension, without the need for prior formal notice.

Article 9 Confidentiality

Each of the parties is hereby obliged to maintain strict business confidentiality with regard to the other party and not to disclose to any third parties any information concerning the other party and any information relating to the Contract either for a consideration or free of charge or in any other way whatsoever, unless they have prior written authorisation to do so from the other party, duly specifying the beneficiary or beneficiaries of the information as well as its content, valid for the whole term of the Contract and for a (2) years term after it has expired, whatever is the cause.

Article 10 - Liability

10.1 The Customer is solely responsible for the content of the sent messages and for its promotion and guarantees Mpulse against any claims which might be made by a third party, by Mpulses customers, by the mobile operators and by the mobile operators customers/subscribers in relation to the content. He shall take full liability in the event of a dispute between an author, a provider (this list is not restrictive) and Mpulse and undertakes to appear in the case at the request of Mpulse and to meet the full costs of the defence along with the costs of any sentence or out-of-court settlement.

The Provider guarantees Mpulse against any legal or extra-legal action with regard to the content of his service and relating to intellectual property rights belonging to third parties. As a result, he undertakes to meet any costs incurred as a result of any legal or extra-legal action taken by a third party against Mpulse, along with any resulting indemnity.

The Customer is responsible for the connection to the Internet to access to LuxSMS Contacts.

10.2 Mpulse is responsible for routing the SMS to the Luxembourg-based mobile networks. However, Mpulse may not be held liable:

  • In the event of a poor or faulty connection to the mobile operators SMS-C servers,
  • In the event of any disruption and/or interruptions which cannot be directly attributed to Mpulse,
  • In the event of disruptions and/or total or partial non-availability and/or total or partial interruptions to the services offered on the networks exploited by the mobile operators and the Internet network,
  • In the event of failure of the hardware used to provide access to the LuxSMS Gateway platform,
  • En cas de dfaillance du matriel hardware utilis pour mettre disposition la plate-forme LuxSMS Clearing,
  • In cases of force majeure as covered by article 12.

In any case, Mpulse may not be held liable for any indirect damages or losses such as loss of earnings relating to a malfunction on its platforms. With regard to direct damages, MpulseS liability may not exceed the average monthly turnover recorded over the last six (6) months.

Article 11 Insurance policies

Each of the parties hereby states that he is the holder of an insurance policy guaranteeing his professional civil liability. Each of the parties must pay the premiums and excess payments on the insurance policy he has taken out and, at the other partys first request, undertakes to send him any insurance certificates which are relevant to this contract.

Article 12 Force majeure

None of the parties may be held liable for any breach whatsoever of his obligations under the terms of this contract if this breach is the result of a governmental decision, including the withdrawal or suspension of one of the authorisations granted to Mpulse, a fire, a declared state of war, a civil war, acts of terrorism or a national strike and, more generally, any other event classified as force majeure displaying the characteristics defined by the jurisprudence of the Courts and Tribunals of Luxembourg.

Any party affected in the meeting of his obligations by the occurrence of a case of force majeure must immediately notify the other party of this
fact. The parties must then make every effort to take steps aiming to compensate for the consequences of this event. However, if the event persists beyond a period of one (1) month, this contract may be terminated by the first party to institute proceedings to do so, without any indemnity being payable by this latter party to the other in this respect.

Article 13 Transfer

As the Contract is entered into intuitu personae, the Customer formally undertakes, under pain of immediate termination without notice, not to assign, transfer in any form whatsoever, either for a consideration or free of charge, all or part of the rights and obligations resulting from the Contract without prior written agreement from Mpulse.

Article 14 Settlement of disputes

The Contract is subject to the law of Luxembourg.

Any disputes which might arise from the Contract must, firstly and as far as possible, be settled by means of amicable negotiations between the Parties.

If an amicable agreement between the Parties cannot be reached within a period of one (1) month from the registered letter with proof of receipt initialising the negotiations and sent by the first of the parties to take such action, the provisions below shall be applicable.

Any disputes relating to the interpretation or the performance of this Contract shall be subject to the express competence of the Courts of Luxembourg, even if there are multiple defendants or if a third party is introduced into proceedings, even for emergency procedures or protective procedures, applied for in chambers or by request.

Article 15 Nullity

If one or more of the stipulations of the Contract should be deemed to be invalid or declared to be invalid in application of a law, a regulation or following a definitive decision by a competent jurisdiction, the remaining stipulations of the Contract shall retain their full force and scope.

In this case the parties hereby agree to replace the clause which has been declared to be null and invalid with a clause which is as close as possible to the initial clause in terms of its content.

Article 16 Notifications

Any correspondence between the parties shall be by e-mail, letter or by fax signed by a person who is duly authorised for the purpose by the party in question. Any correspondence for the attention of Mpulse must be sent to the address shown below:
info@luxsms.lu, Mpulse S.A., 7, rue Jean Fischbach L-3372 Leudelange, Luxembourg or (+352) 26 34 09 09-20.

It is hereby specified that any notifications involving advance notice must be sent by prepaid registered letter with proof of receipt. Unless there is provision to the contrary, the periods of time stated in the Contract run from the date on which the aforesaid notification is first presented.

Article 17 Miscellaneous

17.1 If either of the parties should fail to demand the strict performance by the other party of any provision or condition whatsoever under this agreement, this shall not be deemed to constitute a definitive waiver to exercise this right.

17.2 This agreement expresses all of the parties contractual obligations. It supersedes all acceptances, correspondence or agreements prior to the signing of this agreement.

17.3 Mpulse reserves the right to amend this contract and shall inform the customer by e-mail. If this amendment should fail to meet with the providers agreement, he may proceed to terminate the contract immediately by sending a registered letter with proof of receipt. The termination shall be effective within five (5) working days from the receipt by Mpulse of this registered letter. If the contract is not terminated, the provider shall be deemed to have agreed to the amendments. As a result, the new conditions shall be applicable at the end of the aforementioned period of notice.

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