The words and phrases listed below shall bear the following meanings in these terms and conditions,
unless the context clearly indicates otherwise:
“You” or “Your” shall mean the entity for which You are accepting the Agreement, and Affiliates of that entity. “Affiliate” means any entity that is directly or indirectly owned or controlled by You with more than 50% of the shares or voting interests.
“Subscriber” shall mean anyone subscribing to any of our Services.
“Opt-in” shall mean someone is given the option to consent to receiving marketing communications by SMS, e-mail or other electronic means.
“User” shall mean any natural or legal person who makes use of any of the Services or who uses or
visits the Website; Users may include Your employees, contractors, media agency or other third parties with which You transact business.
“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 or subscriber using the Services.
“Services” shall mean and include all the products and services that is made available by HawkSMS via the website. You agree to be bound by the terms of the Agreement.
“Website” shall mean all websites published by HawkSMS entity including hawksms.com and shall
include any page or part thereof.
“Your Data” shall mean any and all electronic data or information, including but not limited to personal data and/or intellectual property rights protected works, submitted by You to the Services.
2.1 Any reference in these standard terms to the singular includes the plural and vice versa, any reference to persons includes both natural and juristic persons and any reference to a gender includes the other gender.
3.1 Persons using the Website or the Services for any reason whatsoever bind themselves and agree to these terms and conditions.
3.2. 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.
3.3. You may not use the Website or the Services if you are not of a legal age to form a binding contract with HawkSMS.
4. Changes and Amendments
4.1. HawkSMS 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.
4.2. 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.
5. USER SUBSCRIPTION
Our Services are purchased as User subscriptions and provided “as-is”. Only the Users who have signed up are allowed to access the Service(s). Each Registered User will have a unique password, which shall not be shared with any third party. You are responsible for maintaining the confidentiality of any Username (phone number) and of the password provided to You and of any information of Us and of any third party obtained under the Agreement. You are solely responsible for usage of any account provided to You, whether the usage is authorized by You. You agree to immediately notify Us of any unauthorized use of any account of Yours and to Order any necessary Service to cover for the actual usage.
6. Acceptable Usage
6.1. Users acknowledge and understand that HawkSMS acts as a conduit for the provision of information and content. Users acknowledge that HawkSMS 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 familiarize themselves with all applicable laws, regulations and codes of conduct to which they may be subject and to ensure compliance therewith.
6.2 Users may not use, or knowingly allow others to use, the Services for any purpose that may bring
HawkSMS’s name into disrepute, or for any purpose that, in HawkSMS’s sole and absolute discretion, is improper, immoral or undesirable.
7. PRICES AND PAYMENT
The prices for Our Services are detailed on Our website and may be changed from time-to-time. Users are required to purchase credits which shall reduce for each message sent. You agree to pay any sales, use, value-added, or other tax or charge imposed or assessed by any government entity upon the use or receipt of Services. If You select a online bundle, You agree to at all times provide us with valid mobile money or credit card information and authorize us to deduct the agreed charges against such accounts. Any person using a credit card warrants that he or she is authorized to use such credit card. Enterprise and agency subscriptions are invoiced and paid in advance or later. Additional consumption related to enterprise and agency subscriptions beyond the consumption included in the prepayment are invoiced as well. We are required to provide You a refund if We terminate Our Services to You without cause before the end of the term for which You have paid. We retain the right to immediately refuse access to any Service in case the credit requirements are not fulfilled by You.
8. REFUND OF PAYMENT
All purchases are final, and all payments made or accrued are non-refundable. Also, if Your account is terminated due to Your breach of the Agreement, no payment will be refunded. If You want to make a claim that We have charged You in error, you must give notice of claim within 7 days of when We charged You in error, backed with evidence. We reserve the right to refuse a refund request if We reasonably believe (a) that You are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the Services; (b) if You are in breach of the Agreement or (c) if We reasonably suspect that You or someone with access to Your User account are using Our Services fraudulently.
9. THE PARTIES RESPONSIBILITIES
9.1 Our responsibilities
• Provide Service to You
• provide respectively Our customer and technical support for Service(s) to You at no additional charge and or at a charge where necessary.
• use commercial efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control.
• provide Service(s) in accordance with applicable laws and governmental regulations only.
• by means of planned, systematic measures ensure satisfactory data security about confidentiality, integrity and accessibility in connection with the processing of Your Data
• not modify or disclose Your Data except as permitted by you.
9.2 Your responsibilities
• be responsible for the accuracy, quality and legality of Your Data
• use commercially reasonable efforts to prevent unauthorized access to or use of the Service(s), and notify Us promptly of any such unauthorized access or use.
You shall not:
• use the Service(s) to store, communicate or otherwise process infringing, or otherwise unlawful or torturous material.
• interfere with or disrupt the integrity or performance of the Service(s)
• attempt to gain unauthorized access to the Service(s) or their related sites.
• send out unrelated offers or unrelated content to Your contacts or communities.
• violate any data protection and privacy laws and regulations applicable to the countries in which you are sending any form of communications via Our Services.
9.3 Responsibilities of creation and distribution of campaigns
You are aware that the Service is provided through automated processes and that the Service content including campaigns are distributed based on Your Data as provided by You. You are therefore exclusively responsible that the created and distributed content and the forms of communication meet all legal requirement in any of the countries You choose to distribute Your campaign and You are exclusively liable of any legal obligations or law not complied with by You or someone under Your responsibility. In case legal obligations or laws are not complied with, You will hold Us harmless for all loss, damages and costs of any kind including reasonable legal fees.
9.4 You are aware and acknowledge that:
• capacity problems may occur
• availability problems may occur as the Service is delivered through third party services providers over Internet.
• SMS delivery problems may occur as the success rate of SMS delivery depends on the terms of the mobile operator of the recipient.
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 unenforceable or
invalidity and shall remain enforceable and applicable.
11. FORCE MAJEURE
Either party’s failure to perform its obligations hereunder shall not be deemed a breach of the Agreement if such failure is due to fire, strike, war, civil unrest, governmental regulations, acts of nature, or other causes beyond the reasonable control of the party claiming Force Majeure. This provision shall not apply to Your obligation to pay any sums that are due prior to the Force Majeure event, which shall continue unabated.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 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 HawkSMS,
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.
11.2 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 HawkSMS.
We and You agree to retain in confidence the non-public terms of the Agreement and all other non-public information and know-how disclosed or that becomes known by either party as a result of activities pursuant to the Agreement, which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (“Confidential Information”). Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, representatives and contractors as is reasonably required under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law, court order or by any authority of any relevant country. Either party hereto may also disclose any Confidential Information here under to such party’s agents, attorneys and other representatives or any court of competent jurisdiction or any third party empowered here under as reasonably required to resolve any dispute between the parties hereto.
14. Applicable Law
These terms and conditions shall be governed by, construed and interpreted in accordance with the
laws of the Republic of Ghana and the Ghanaian courts shall have exclusive jurisdiction in
respect of any disputes that may arise between the User and HawkSMS.