GENERAL TERMS AND CONDITIONS FOR THE OPERATION OF THE SHORTLINK MESSAGING SOFTWARE / SHORTLINK SARL
1. DEFINITIONS (See Annex 2)
2. SCOPE OF THE AGREEMENT
At the request of the CLIENT, SHORTLINK has agreed to provide the CLIENT with the SHORTLINK Services, subject to and based on the terms and conditions stipulated herein.
3. TERM AND TERMINATION
3.1. The Agreement shall enter into force upon acceptance of these General Terms and Conditions (GTC) and, unless terminated under the conditions described below, shall remain in force for a period of twelve (12) months from that moment.
3.2. The Agreement shall automatically renew for successive periods of twelve (12) months unless either Party provides written notice of termination at least thirty (30) days before the expiration of the period referred to in Article 3.1 or any subsequent renewal period.
3.3. Either Party may terminate the Agreement by written notice to the other Party.
3.3.1. By operation of law, subject to applicable legal provisions, if the other Party becomes involved in insolvency or non-payment proceedings, including any settlement agreement with or assignment for the benefit of its creditors.
3.3.2. If one Party is in material breach of its obligations under the Agreement and such breach, if capable of remedy, is not remedied within three (3) days following written notification.
3.4. The CLIENT may terminate the Agreement in writing.
3.4.1. If SHORTLINK intends to modify the Agreement unilaterally, provided that the termination notice is sent within fourteen (14) days from the date the CLIENT is informed of the proposed modification.
3.5. SHORTLINK may, at its sole discretion, terminate the Agreement by notifying the CLIENT with as much prior notice as reasonably possible in the event that:
3.5.1. One or more Network Operators upon which the provision of SHORTLINK Services depends suspends services to SHORTLINK.
3.5.2. Any modification introduced by a Network Operator, any modification of the Mobile Marketing Association Code of Conduct, or any change in applicable laws or regulations that would render the provision of SHORTLINK Services illegal, excessively difficult, or excessively costly for SHORTLINK.
4. PRICES, PAYMENT AND SERVICES
4.1. All payments by the CLIENT to SHORTLINK arising from the SHORTLINK Services shall be made in accordance with the provisions of this Article 4 and Annex 1.
4.2. SHORTLINK’s remuneration is calculated based on the price of the version of the Shortlink application used by the CLIENT, the SMS unit packs ordered by the CLIENT, the days of on-site intervention requested by the CLIENT for maintenance purposes, and the requests for specific developments ordered by the CLIENT.
4.3. All payments between the Parties (“Total Remuneration”) include:
4.3.1. Amounts payable by the CLIENT to SHORTLINK for the use of the SHORTLINK Services as described in Annex 1.
4.3.2. All bank charges applied by the CLIENT’s bank, intermediary bank fees, and any fees imposed by financial institutions.
4.3.3. All applicable taxes payable in addition to the remuneration, excluding taxes on SHORTLINK’s net income, profits or assets.
4.4. Any difference between the Total Remuneration and the amount received by SHORTLINK shall constitute an outstanding balance.
4.5. Suspension for non-payment. If the CLIENT fails to pay any part of the remuneration due, SHORTLINK may suspend the provision of SHORTLINK Services until full payment is received.
4.6. Late payment penalties. In case of unpaid undisputed amounts, SHORTLINK may charge late penalties of five percent (5%) per month or sixty percent (60%) per year from the due date until full payment is made.
5. CLIENT OBLIGATIONS
5.1. Without prejudice to Article 14, the CLIENT represents and warrants to SHORTLINK that:
5.1.1. It has the authority to enter into the Agreement and to fulfill its obligations under it.
5.1.2. Neither the CLIENT Content nor the CLIENT Services violate applicable laws, regulations or codes.
5.1.3. It will not use the SHORTLINK Services in a fraudulent, illegal or unauthorized manner.
5.2. The CLIENT shall only connect to the Service Interface specified by SHORTLINK using the username(s) and password(s) provided by SHORTLINK, which shall be considered Confidential Information.
6. MESSAGE CONTENT AND ANTI-SPAM POLICY
6.1. The CLIENT shall assume full legal responsibility for the CLIENT Content transmitted via the SHORTLINK Services.
6.2. The CLIENT must ensure that the collection, use and processing of personal data comply with all applicable laws governing telemarketing, direct marketing, electronic communications and privacy protection.
7. SUSPENSION OF SERVICES
7.1. Without prejudice to other remedies, SHORTLINK may suspend all or part of the SHORTLINK Services if:
7.1.1. Required by law.
7.1.2. The Agreement is terminated under Article 3.
7.1.3. Required by a competent authority or Network Operator.
7.1.4. SHORTLINK reasonably believes the CLIENT is in breach of the Agreement.
7.1.5. A Network Operator suspends services upon which the SHORTLINK Services depend.
7.1.6. Payment obligations are not fulfilled.
8. SHORTLINK SUPPORT, SYSTEM, MAINTENANCE – CLIENT DATA
8.1. SHORTLINK will provide the CLIENT with usernames and passwords necessary to access the services.
8.2. SHORTLINK will make commercially reasonable efforts to provide technical support remotely.
8.3. Problems reported under this Article must be reported in French or English unless otherwise agreed.
8.4. SHORTLINK will notify the CLIENT of scheduled maintenance operations.
9. CONFIDENTIALITY
9.1. Each Party may disclose confidential information to the other Party during the execution of the Agreement.
9.2. Such confidential information shall only be disclosed to employees, advisors, or affiliates who require access for the execution of the Agreement.
9.3. If disclosure is required by law or regulatory authorities, the receiving Party shall notify the disclosing Party beforehand whenever possible.
9.4. The confidentiality obligations shall survive termination of the Agreement for five (5) years.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All SHORTLINK Intellectual Property Rights remain the exclusive property of SHORTLINK.
10.2. SHORTLINK grants the CLIENT a limited, non-exclusive license to use the SHORTLINK Services during the term of the Agreement.
10.3. Such license is non-transferable, non-sublicensable and limited to the use of the services.
10.4. Neither Party shall reverse engineer, decompile or disassemble the other Party’s software.
11. NOTICES
11.1. All notices shall be made in writing and delivered by registered mail, email with confirmation, or recognized courier service.
11.2. Notices shall be deemed effective upon receipt.
12. MUTUAL COOPERATION
12.1. The Parties agree to cooperate in good faith to resolve any issues arising during the execution of the Agreement.
13. GOVERNING LAW AND DISPUTES
13.1. The Agreement shall be governed by Moroccan law.
13.2. Any dispute arising from the Agreement shall fall under the exclusive jurisdiction of the courts of Tangier.
14. WARRANTIES AND LIMITATIONS OF LIABILITY
14.1. Each Party warrants that this Agreement constitutes a valid and binding legal obligation.
14.2. SHORTLINK shall not be liable for:
14.2.1. Transmission errors or security failures in telecommunications networks.
14.2.2. Acts or omissions of Network Operators.
15. INDEMNIFICATION
15.1. The CLIENT shall indemnify and hold harmless SHORTLINK from any claims arising from:
15.1.1. Breach of the Agreement by the CLIENT.
15.1.2. Illegal or non-compliant CLIENT Content.
15.2. The CLIENT shall intervene in any legal proceedings initiated against SHORTLINK related to such claims.
16. FORCE MAJEURE
16.1. Neither Party shall be liable for failure to perform obligations due to circumstances beyond reasonable control including natural disasters, telecommunications failures, government actions, strikes or terrorist acts.
16.2. The affected Party shall notify the other Party as soon as reasonably possible.
17. ASSIGNMENT
17.1. The Agreement may not be assigned or transferred without prior written consent of the other Party.
18. ENTIRE AGREEMENT AND MODIFICATIONS
18.1. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements relating to its subject matter.
18.2. Any modification must be made in writing and signed by both Parties.
19. MISCELLANEOUS
19.1. The Agreement may be signed in multiple counterparts, each of which shall be deemed an original.
19.2. No provision of the Agreement shall be enforceable by third parties.
20. ANNEXES AND ADDENDA
The following annexes form an integral part of this Agreement:
Annex 1 – Service Fees
Annex 2 – Definitions
ANNEX 1 – SERVICE FEES
The currency used for transactions carried out under the Agreement is the Moroccan Dirham (MAD).
In accordance with Article 4 of the Agreement, the price of each Billable Event will be communicated to the CLIENT by email.
Unless a fixed price has been expressly agreed, SHORTLINK may modify the agreed tariffs by email notification sent to the CLIENT. Any change shall take effect immediately unless otherwise specified in the price list.
The payment model is prepayment.
SHORTLINK will issue an invoice within five (5) business days after receipt of the prepayment.
SHORTLINK shall in all cases be authorized to pass on price increases resulting from:
- a legal or regulatory obligation or injunction
- an increase in the purchase price of messages
- tariff changes imposed by Network Operators
SHORTLINK will use reasonable efforts to notify the CLIENT in advance of such price changes.
SMS units purchased have a validity period of twelve (12) months from the date of purchase. Once this period has elapsed, unused SMS units will expire.
If the CLIENT objects to the proposed modifications, the Agreement may be terminated in accordance with Article 3.
Notwithstanding the above, the CLIENT must pay the full remuneration due to SHORTLINK, including any applicable late payment penalties in accordance with Article 4.5.
ANNEX 2 – DEFINITIONS
In this Agreement, unless the context otherwise requires, the following definitions shall apply:
“Agreement” means this SHORTLINK Messaging Software Operation Agreement, including the Addenda and Annexes referred to herein, attached hereto and forming an integral part thereof, as well as any Addenda or Annexes signed by the Parties and any amendments signed between the Parties.
“Annex” means any annex attached hereto that:
(i) describes the SHORTLINK Services,
(ii) details service fees and commissions for the SHORTLINK Services and related administrative costs, and
(iii) includes any additional terms, conditions or addenda related to the matters covered by the Agreement.
“Unicode Character” means a character outside the GSM alphabet.
“CLIENT Content” means information, data or messages provided to SHORTLINK by or on behalf of the CLIENT, or by an end recipient using the CLIENT Services, for transmission by SHORTLINK to a Network Operator.
“Intellectual Property Rights” means any copyright (including, without limitation, software rights), patents, trademarks, trade names, trade secrets, registered or unregistered designs, database rights and topology rights, rights to bring an action for passing off, and any other similar form of intellectual property or proprietary rights, whether registrable or not, including all applications and rights to apply for protection of such rights anywhere in the world.
“SHORTLINK Rights” means all Intellectual Property Rights licensed to or owned by SHORTLINK before or after the Effective Date, including without limitation the Intellectual Property Rights used or implemented in connection with the operation of the SHORTLINK software and any data used for this purpose, including SHORTLINK Data.
“Term” means the duration of the Agreement as defined in Article 3.
“Billable Event” means an SMS sent by the CLIENT to SHORTLINK which is successfully submitted by SHORTLINK to the destination Network Operator.
“Network Operator Modification” means any modification in the services, prices, terms or conditions of services provided to SHORTLINK or the CLIENT by a Network Operator.
“MT” or “Mobile Terminated” or “SMS” means a short text message sent by the CLIENT via the SHORTLINK platform to a Network Operator’s mobile network and ultimately to the mobile devices of End Recipients, consisting of text, numbers or alphanumeric characters up to one hundred sixty (160) characters or seventy (70) characters if one or more Unicode Characters are used.
“Network Operator” means any company operating a GSM mobile network that provides mobile communication services to its subscribers, including End Recipients.
“Platform” means the SHORTLINK messaging software and all related systems, network connections and interface capabilities owned and operated by SHORTLINK or by its partners or suppliers and used to provide the SHORTLINK messaging services.
“Prepayment” means an amount payable by the CLIENT to SHORTLINK before the provision of the SHORTLINK Services for which the remuneration of SHORTLINK applies.
“SHORTLINK Remuneration” means the amount payable by the CLIENT to SHORTLINK in consideration of the use of the SHORTLINK Services, including service fees and commissions, as detailed in Annex 1.
“Total Remuneration” means the total amount of payments between the Parties as described in Article 4.3.
“Operator Network” means the infrastructure, software and hardware used by a Network Operator to route wireless communications between its subscribers and third parties.
“CLIENT Services” means the services operated by the CLIENT for the distribution or transmission of CLIENT Content to End Recipients.
“SHORTLINK Services” means the services related to the operation and use of the SHORTLINK messaging software by the CLIENT.
“Affiliate(s)” means:
(i) any subsidiary or parent company of either Party;
(ii) any entity controlling or controlled by either Party; or
(iii) any entity directly or indirectly controlled by or controlling any subsidiary or parent company of either Party.
For the purposes of this definition, an entity is deemed to control another entity if it holds fifty percent (50%) or more of the voting rights or has the ability to direct its management or control the composition of its board of directors.
“Successful Submission” means the acceptance by SHORTLINK of the SMS sent by the CLIENT and the validation of such SMS before submission for routing downstream. SHORTLINK shall return a Successful Submission confirmation to the CLIENT indicating that the SMS has been successfully submitted for routing.
SMS messages that do not pass SHORTLINK validation tests will be rejected, in which case an error message will be returned to the CLIENT and such SMS messages will not be billed.
“Taxes” means any federal, state, local or foreign taxes, duties, charges or levies that SHORTLINK is required or permitted by law to collect from the CLIENT in connection with the provision of the SHORTLINK Services.
“Third Party” means any person or entity that is not a Party to the Agreement.