Messaging Supplemental Terms and Conditions
Global Version 5 – India Version 2 – 30 April 2023
These supplemental terms and conditions (“Supplement”) are part of an agreement for certain ACL services (“Agreement”) between ACL and Customer and apply solely to the ACL services referencing this Supplement i.e., SMS (“Service”) and not any other ACL product or service.
Capitalized terms are defined in the Glossary below. Capitalized terms not defined in this Supplement shall have the meanings ascribed to them in the General Terms and Conditions for ACL Services (“GTC”).
Part A – Legal Terms
A1.1. Service Provider Conditions and laws and regulations. Notwithstanding Section 4.1 of the GTC, Customer shall comply with all Service Provider Conditions, applicable legal and regulatory requirements and conditions, and all applicable industry guidelines relating to the Customer Data, Customer Services, Messages or its use of the Service. If a Service Provider changes the Service Provider Conditions and/or the technical standards for the delivery of Service, ACL may modify the terms and conditions governing such Service upon written notice to Customer.
A1.2. End User opt-in/opt-out requirements. Customer shall send Messages only to End Users who have, and continue to, knowingly consent or “opt-in” to receiving them and who have been informed of their rights to, and been given, a free, readily accessible process for cancelling receipt or “opting-out” of receiving future Messages, such as via End User text responses of STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE. Customer shall immediately stop sending Messages to an End User who has “opted-out” from receiving such Messages. At ACL’s request, Customer shall provide ACL with proof of any and all such opt-in(s) and opt-out(s), and response time to discontinue transmission of Messages after opt-out, to ACL’s reasonable satisfaction. For Push SMS (SMS MT) (International Termination i.e., outside India), Customer shall send Messages only to End Users who have, and continue to, knowingly consent to receiving them in accordance with the destination country applicable law.
A1.3. Supply of Customer Services. Customer shall inform End Users that it is the source and supplier of the Messages and provide appropriate contact details to End Users. Customer shall bear sole responsibility for the acts, omissions or breaches of End Users with respect to the use of the Service, Customer Services and the Messages, including but not limited to the Customer Data. Customer shall promptly inform ACL if it becomes aware of any violation of the terms of this paragraph.
A1.4. Restrictions. Customer shall not use the Service or permit the Service to be used:
- in a manner that violates any applicable law, regulation, industry guidelines, or code of practice, or that violates, infringes or misappropriates the rights of any third party;
- to transmit any Message or any electronic material (including viruses or other similar destructive computer programming routines) which causes, or is likely to cause, detriment or harm or damage to the ACL Network or any computer systems or telecommunications equipment or mobile handsets owned by ACL or any other person, or to facilitate the transmission or use of any code that would allow any third party to interfere with or access any Customer Data;
- to send spam, “junk mail” or unsolicited advertising or promotional Messages or material, or to send or knowingly receive or use any Message or material which is obscene, offensive, abusive, harassing, misleading, fraudulent, violent, unethical, indecent, defamatory, discriminatory, threatening, libelous, unlawful or menacing or promotes alcohol abuse or illegal drug use; or
- to send any Messages that contain medical and/or life-threatening emergency information if such Message is the sole transmission channel to the End User with respect to such emergency; or
- to send International SMS, if and when applicable.
A1.5 Penalty. In the event that Customer breaches its obligations under clause A1.4, Customer shall pay to ACL: (i) penalty and fines imposed on ACL by any government or regulatory authority or operator including reasonable legal fees, costs and expenses associated or in connection with such breach and (ii) the amount calculated at mutually agreed rate per SMS which is subject matter of breach. Such payment shall be made within seven (07) business days from the date ACL notifies the Customer in writing regarding such breach. For avoidance of doubt, such payment shall be without prejudice to any other remedies available to ACL under this Agreement or under applicable laws.
A2.1. Requirements. The provisions of Sections 2.5 and 4.1(c) of the GTC shall apply equally to requests, directions and/or orders made or issued by any Service Provider.
A2.2. Responsibility. ACL may, in its sole discretion, require Customer to take primary responsibility for any request or enquiry made under Section A2.1 above relating to any Customer Service, Message(s) or Customer Data or arising from Customer’s use of the Service or from an alleged or actual breach of this Agreement by Customer.
Customer agrees, at its own cost, to accept full responsibility for any such request or enquiry including for any expenses, penalties, fines, sanctions or other analogous costs that may arise, and in relation to such request or enquiry, to provide all requested information to such regulator or Service Provider (with copies to ACL) in a timely manner.
A2.3. Effect of Termination. Sections A1.2 (“End User opt-in/opt-out requirements”) and A1.3 (“Supply of Customer Services”) above shall survive termination of the Agreement.
A2.4. Indemnity. Customer will indemnify and, at ACL’s election, defend ACL, its Affiliates and subcontractors against:
- any claims (including, but not limited to, any claims, fines, penalties, or losses) or other liabilities brought against ACL, its Affiliates and subcontractors by any third party (including, but not limited to, any other ACL customer, Service Provider or governmental or regulatory authority) relating to Customer Data, Customer Services, Messages or Customer’s use of the Service (including, but not limited to, any such claim which relates to infringement or misappropriation of any intellectual property rights of any third party or any breach or violation of laws or regulations); and
- all damages finally awarded against ACL, its Affiliates and subcontractors with respect to these claims.
A2.5. Disclaimer. Customer agrees that, with respect to its supply of the Service, neither ACL nor any ACL supplier shall be liable whether in contract, tort, or strict liability to Customer or to any End User or any other customer of Customer for (i) any Messages deleted or not delivered regardless of the reason for deletion or non-delivery, including, without limitation, message processing errors, transmission errors, or messaging network and/or service failures; or (ii) the accuracy of information provided through the Service.
A2.6. Suspension of Service. Notwithstanding anything contained in Section 2.7 of GTC, ACL shall immediately suspend the Services if ACL receives intimation of Service misuse or of Customer’s use of the Service contrary to applicable law (including but not limited to, TCCCPR 2018) from a Service Provider, and/or ACL is directed by such Service Provider to suspend provision of the Services to the Customer.
A2.7. TCCCPR 2018 Compliance. In the event of Customer’s non-compliance with the TCCCPR 2018, Customer may be deemed blacklisted, and ACL shall be obligated to not provide or offer the Services to the Customer.
A2.8. Disclosure of information. ACL may be obligated under applicable law (including but not limited to, TCCCPR 2018) to disclose information to law enforcement authorities, regulatory authorities, and Service Providers during audits and/or further to request for information pertaining to alleged or actual fraudulent and/or illegal use of the Services.
Part B – Business Terms
B1. Customer Responsibilities
B1.1. Access and Connectivity
- ACL Network connection. Customer is solely responsible, at its own expense, for establishing and maintaining its equipment, software, facilities, and its connection to the ACL Network.
- ACL Traffic Analyzer. ACL may, in its sole discretion, provide Customer with access to ACL’s Traffic Analyzer interface (“ACL Traffic Analyzer”) which access will enable Customer to obtain statistical reports detailing Service activity. Access to the ACL Traffic Analyzer is provided to Customer for informational purposes only, and the data and information displayed are provided without warranties of any kind regarding completeness or accuracy. Customer agrees not to use or rely on such data and information in accounting for monies due between the parties or for billing purposes.
- Access Numbers. Customer acknowledges that the Access Numbers used to deliver Customer Services remain at all times the property of and are subject to the applicable terms and conditions imposed by the entity authorized to administer such Access Numbers. Access Numbers to be used to deliver Service for a Customer Service may at ACL’s sole discretion be obtained by ACL for Customer, if requested by Customer pursuant to the applicable Order Form and subject to availability. The Customer may not use the Access Numbers except for in relation to the provisioning of the Service by ACL.
B1.2. Commercial Messages. Customer acknowledges that the Service is intended solely for Commercial Messages and shall not be used for mobile to mobile peer to peer messaging purposes. For the purpose of this Section, “Commercial Messages” means Messages designed to promote or facilitate, directly or indirectly, the goods, services or image of any person or entity pursuing a commercial activity.
B2. Commercial Terms
B2.1. Price Changes. Unless otherwise agreed in an Order Form, ACL may modify any fees in its sole discretion upon written notice.
- “Access Number” means a set of digits used to enable Customer to send and/or receive Messages or calls as part of a Customer Service. Access Numbers shall include ‘short-codes’ and ‘long-codes’ as applicable.
- “Customer Service” means a marketing, advertising, promotional or informational program or initiative, or other project, conducted by Customer utilizing the Service.
- “End User” means a person or entity that is a user and/or recipient of a Customer Service.
- “International SMS” means SMS originated from outside India from any source including applications or PSTN (Public Switched Telephone Network) or PLMN (Public Land Mobile Network) or IP (Internet Protocol) meant for termination to any PSTN / PLMN number of any mobile network operator in India.
- “Message” means a digital message containing Customer Data in a form for delivery via Short Message Service (SMS), protocols or standards used to transmit mobile digital content or information.
- “Service Provider” means any entity, including, but not limited to, mobile network operators and mobile messaging aggregators, that is used in relation to the supply of the Service.
- “Service Provider Conditions” means the rates, terms and conditions and “codes of conduct” or message content rule and restrictions imposed by the applicable Service Providers on the provision of the Service and conduct of Customer Services as a condition of permitting ACL to provide the Service and Customer to conduct Customer Services, whether such Service Provider Conditions are incorporated in the terms of this Agreement or provided by ACL to Customer in writing or by email from time to time.
- “TCCCPR 2018” means Telecom Commercial Communication Customer Preference Regulation, 2018.