Terms & Policies
Terms and Conditions
The parties are:
Sokol Producciones Sl
with a registered office at Calle Marti Costa, 1 - A. PISO 2 2, Palma, 07013, Baleares (“Sokol Producciones Sl”)
The party submitting an application to become a SMSwiser user (the “Client”)
SMSwiser is a proprietary web application for building SMS funnels and for detailed reporting, which is hosted on Sokol Producciones Sl servers and made available to the Clients through the website: smswiser.com (the “Website”). To purchase the use of SMSwiser services (the “Subscription”), the Client should choose a monthly or annual term, during which he wants to have access to these services (the: “Subscription Period”).
2.1. Sokol Producciones Sl grants to the Client a non-exclusive, non-assignable, and non-transferable right during the Term (as defined in section 12) to use SMSwiser in accordance with all of the terms and conditions set forth herein.
2.2. Before issuing the first invoice by Sokol Producciones Sl, the Client is obliged to state its company name (including the company’s legal form), an address of the company, TAX/VAT ID, a first and last name of the person authorized to register an account on behalf of and for the Client, as well as contact data of the Client.
2.3. Access to SMSwiser requires logging in using Client’s email address and password. The Client’s email address shall be the one set up on the Client’s website domain name. Otherwise the person registering the SMSwiser account shall prove on request from Sokol Producciones Sl (especially by sending a written authorization) that she/he is entitled to act on behalf of and for the Client. Sokol Producciones Sl can demand such proof at any time.
2.4. The Client is solely responsible for their use of SMSwiser. Client shall not permit any 3rd party to use or gain access to SMSwiser and shall use reasonable security measures to protect against unauthorized usage and/or access. The Client is solely responsible for use of SMSwiser by their employees or any unauthorized person.
2.5. Sokol Producciones Sl shall not access the Clients’ accounts for purposes other than administrative or support.
2.6. As a general rule, any Client can have only one account at the same time unless otherwise agreed by Sokol Producciones Sl. The owner of the account is the Client whose data is provided according to the point 2.2 of these Terms and Conditions and indicated on the invoices issued by Sokol Producciones Sl. The Client must not open a new SMSwiser account if there are any outstanding balance for SMSwiser use. If it does, however, it authorizes Sokol Producciones Sl to charge the amount due of a previous account from the Client’s credit card connected with the new account. Sokol Producciones Sl is obliged to start provision of the SMSwiser services only if all due amounts are paid by the Client.
2.7. If the person acting on behalf of one Client, will open a new SMSwiser account on behalf of another Client, Sokol Producciones Sl can refuse to provide SMSwiser services for that another Client at its sole discretion. The second Client shall have no claims against Sokol Producciones Sl related to refusal to provide services.
2.8. Any Client is obliged to use its business credit cards with regard to chosen payment method. If the Client choose the consumer card instead of business credit card, it undertakes to repay Sokol Producciones Sl all costs, expenses or lost benefits connected with payments made by a consumer card as well as it waives its right to claim damages, especially in the amount of commission paid in the higher amount that stated in the relevant law provisions. The Client also authorizes Sokol Producciones Sl to charge relevant amounts from its credit card.
2a. The Trial Period
2a.1. Upon registration, the Client may be provided with a trial period of using Services (the “Trial Period”). The Trial Period generally lasts for 1 month or for another time specified by Sokol Producciones Sl, subject to the provisions stated in point 2a.4.
2a.2. The Client agrees to comply with all terms and conditions (including limitations on the use of the Events as defined in section 15.3.) related to the Trial Period.
2a.3. Each Client must not create more than one account in order to receive any benefits under the Trial Period. Each Client may use the Trial Period only once.
2a.4. The Client is obliged to choose one of the plans made available by Sokol Producciones Sl in the Trial Period. The Client may resign from the Trial Period at any time before its expiration also by purchasing full access to any monthly or yearly plan offered by Sokol Producciones Sl. The Client can do it manually in their SMSwiser account settings. In any case the Trial Period expires at the date of the payment by the Client for the full access of the chosen plan.
2a.5. The Trial Period also expires automatically if the Client tries to purchase full access to any monthly or yearly plan offered by Sokol Producciones Sl according to point 2a.4 above but there is a payment failure regarding the chosen plan. In this case, however, no charge shall be made by Sokol Producciones Sl after the Trial Period expires.
2a.6. If the Client does not submit their declaration regarding termination of the Services during the Trial Period, they shall be charged by Sokol Producciones Sl for the amounts relevant to using monthly plan chosen in the Trial Period.
2a.7. The Client is obliged to pay the token amount indicated by Sokol Producciones Sl in order to verify the Client’s credit card before the Trial Period starts. This amount is non-refundable. No other amounts shall be charged by Sokol Producciones Sl during the Trial Period.
2a.8. If the Trial Period cannot be started or expired for any reason stated above and no plan was purchased by the Client or no charge was made for a plan chosen upon the registration, the Client shall not be able to use the Services.
- Client requirements
3.1. The Client shall provide true, accurate and current information to Sokol Producciones Sl and shall maintain all account information, ensuring it is true, accurate and up-to-date. Otherwise the Client is fully liable (including financial liability) for any untrue, inaccurate or incorrectly provided information and data.
3.2. The data indicated on the invoice issued to the Client shall be the same as the one provided by the Client according to point 2.2 of these Terms and Conditions . In case of any change of that data as well as any other data provided by the Client (including email address), the Client is obligated to provide Sokol Producciones Sl with accurate data as well as send Sokol Producciones Sl a documentation that proves such changes.
3.3. When an individual, the Client represents and warrants: he/she is at least 18 years old, has full capacity to perform acts in law and is an individual running a business (i.e. the Client is not a consumer).
3.4. When a person signing to SMSwiser acts on behalf of their employer or an entity, this person represents and warrants he/she has a full legal authority to bind their employer or such other entity to these Terms and Conditions. In case of doubt, Sokol Producciones Sl is entitled to demand proofs confirming that the person is entitled to act on behalf of and for the Client.
3.5. The Clients shall not access, or attempt to access, SMSwiser by any means other than through the website or the interface provided by Sokol Producciones Sl.
3.6. The Client shall not attempt to obstruct, disrupt or interfere with the operation of SMSwiser or other services provided by Sokol Producciones Sl. The Client shall not interfere or attempt to interfere the website or the Services in any way through any means or device including, but not limited to using automation software, bots, spamming, hacking, uploading computer viruses or time bombs, or any unauthorized third-party software modifying or interfering the website or the Services or by any means prohibited by these Terms and Conditions or binding law. Sokol Producciones Sl reserves the right to determine what conduct it considers to be in violation of the Terms and Conditions. Sokol Producciones Sl reserves the right to control and verify compliance with these restrictions and limitations.
3.7. The Client shall not attempt to gain an unauthorized access to accounts registered to other Clients, or any servers, systems or networks connected to SMSwiser or Sokol Producciones Sl’s websites.
3.8. The Client shall not obtain or attempt to obtain: (A) any information from SMSwiser, including without limitation: email addresses or phone numbers of other Clients or other software data; (B) intercept, examine or otherwise observe any proprietary communications protocol used by SMSwiser, Sokol Producciones Sl’s websites or servers, (C) use any software that is designed to provide a means of an unauthorized access to, or distort, delete, damage or disassemble SMSwiser or Sokol Producciones Sl’s websites or servers.
3.9. The Client shall not use SMSwiser services in a manner that is, or may potentially be illegal, offensive, obscene, immoral, publicly objectionable within the online community, or deteriorate quality, value and reputation of Sokol Producciones Sl or SMSwiser services. In particular, the Client may not use SMSwiser for: pornographic purposes (including but not limited to child pornography), advertising and promotion of prohibited products or substances, infringement of any rights, harassment, threats, phishing, money laundering, impersonating another person or entity, in order to commit any crime or offense, violating the rights of third parties as well as breaching any applicable law or good practices. Sokol Producciones Sl reserves the right to control and verify compliance with these restrictions and limitations. Without prejudice to the other provisions of the Terms and Conditions, the Client’s breach of aforementioned rules shall be treated as a material breach of the Terms and Conditions. Sokol Producciones Sl is entitled to immediately suspend the provision of services as well as block the Client’s account if it assumes that the Client or the person using the SMSwiser account breached the Terms and Condition. The Client accepts abovementioned and declares that in the aforementioned conditions, they shall have no claims over Sokol Producciones Sl with regard to suspension of or blocking the services and accounts.
3.10. Client shall ensure that all their materials are free from viruses, worms, Trojan horses, and other malicious code.
- Intellectual Property
4.1. The Client shall not rent, lease, sublicense, distribute, transfer, copy, or modify SMSwiser.
4.2. The Client shall not adapt SMSwiser in any way or use it to create a derivative work.
4.3. The Client shall not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code of SMSwiser.
4.4. The Client shall not use SMSwiser in any manner, or in connection with any content, data, hardware, software or other materials, that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias), (D) violates any applicable law, ordinance, rule, regulation or treaty.
- The End users’ data
5.1. By using SMSwiser – an online platform for building SMS funnels and for detailed reporting, the Client may collect or use some data regarding activities of end users. This data may include information about IP addresses, session-based browsing behaviour, device-related data (the „Data”). SMSwiser platform does not collect data which by itself identifies an individual such as name, address, phone number, email address. The Client shall note that any references to “end users” mean the end user of an internet connected device, such as a visitor to a web page, a user of a mobile app, or a user of an IoT device, or a visitor on advertisement or campaign webpage.
5.2. If any Data is personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (the “Personal Data” and “GDPR” respectively), and the processing thereof, shall be governed under the terms and conditions set forth in the Sokol Producciones Sl Data Processing Agreement (the “DPA”). A current version of the DPA executed by Sokol Producciones Sl is available on the Website, and became effective as of May 25, 2018. The DPA is an integral part of these Terms and Conditions. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any personally-identifiable information and the Personal Data included in the Data processed in connection with SMSwiser services, the Client shall be considered as the “Controller” or the “Processor” of the Personal Data and Sokol Producciones Sl shall be considered as the “Processor” or the “another Processor” (the “Sub-Processor”), as applicable, according to the terms defined under the GDPR and the DPA. The Client represents and warrants that Sokol Producciones Sl is permitted to collect, use and transfer Data on behalf of the Client in order to provide SMSwiser services according to the terms defined under DPA.
- Service Standards
6.1. Sokol Producciones Sl reserves the right to modify SMSwiser without notice and without liability.
6.2. Sokol Producciones Sl has no obligation to review the Client’s use of SMSwiser. Sokol Producciones Sl does not control, nor is to be held responsible for the Client’s use of SMSwiser or any of the content that the Client sends or receives through SMSwiser.
- Proprietary Rights
7.1. All algorithms, methods of computation and data processed by SMSwiser to measure network traffic, the Events (as defined in section 15.3), used for geolocation or categorization of network traffic or any other data of statistical nature necessary for proper functioning of SMSwiser or features thereof (the: “Processed Data”) are and shall remain the sole and exclusive property of Sokol Producciones Sl, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto. All rights not expressly granted to the Client herein are reserved to Sokol Producciones Sl.
7.2. The Client’s materials are and shall remain their sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.
8.1. Sokol Producciones Sl shall not be obligated to provide the Client with any support, but may elect to do so at its sole discretion. In the event, technical support shall be delivered in English based on the plan chosen by the Client, and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time.
9.1. The Client agrees that the platform, SMSwiser, and the Processed Data are Sokol Producciones Sl’s confidential and/or trade secret information (collectively, the “Confidential Information”). The Client shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. The Client agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Sokol Producciones Sl’s rights therein. The Client shall use its best efforts to assist Sokol Producciones Sl in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, the Client shall advise Sokol Producciones Sl immediately in the event the Client learns or has reason to believe that any person to whom the Client has given access to the Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other proprietary rights of Sokol Producciones Sl, and the Client shall, at the Client’s expense, cooperate with Sokol Producciones Sl in seeking injunctive or other equitable relief in the name of the Client or Sokol Producciones Sl against any such person. The Client agrees to maintain the confidentiality of Sokol Producciones Sl’s Confidential Information using at least as great a degree of care as the Client uses to maintain the confidentiality of the Client’s own most confidential information (and in no event less than a reasonable degree of care). The Client acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation SMSwiser or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, shall immediately give rise to continuing irreparable injury to Sokol Producciones Sl inadequately compensable in damages at law, and Sokol Producciones Sl is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Sokol Producciones Sl may immediately terminate the Client’s account and all license rights granted herein, in the event the Client breaches any of its confidentiality obligations.
10.1. The Client shall indemnify, defend, and hold harmless Sokol Producciones Sl from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by Sokol Producciones Sl, known or unknown, contingent or otherwise, directly or indirectly arising from the Client’s breach of any term or provision of these Terms and Conditions or any way related to the Client’s use of SMSwiser, including but not limited to any claim that the Client’s website is owned by someone other than the Client or that the website infringes on the intellectual property rights of a third party. Sokol Producciones Sl shall notify the Client of any such claim and shall cooperate with the Client, at the Client’s expense, in defending or settling such claim. The Client must not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Sokol Producciones Sl rights without Sokol Producciones Sl’s prior written consent. Sokol Producciones Sl may join in defense with counsel of its choice at its own expense. If the Client does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Sokol Producciones Sl may defend against such claim in such manner as it may deem appropriate at the Client’s expense, including, without limitation, settling such claim, after giving notice of the same to the Client.
- Disclaimer of Warranty
11.1. Sokol Producciones Sl AND ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, USERS AND AGENTS (COLLECTIVELY THE “SMSWISER PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING THE CLIENTS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE SMSWISER PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF SMSWISER OR PERFORMANCE OF THE CLIENT’S WEBSITES REMAINS WITH THE CLIENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SMSWISER PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF SMSWISER, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE RECIEVE SMS TEXT MESSAGES THROUGH THE PLATFORM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF SMSWISER. THE PLATFORM IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY THE CLIENT SHALL BE AT THEIR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMSWISER PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS OR ANY RELATED DOCUMENT OR THE USE OF OR INABILITY TO USE SMSWISER, EVEN IF Sokol Producciones Sl HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE SMSWISER PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED COMPENSATION IN THE AMOUNT OF FIFTY DOLLARS ($50.00), UNLESS OTHERWISE AGREED BY Sokol Producciones Sl. ANY AMOUNTS INCLUDING THE COMPENSATION CANNOT BE DEDUCTED FROM THE INVOICE ISSUED BY Sokol Producciones Sl, ALSO IN THE WAY THAT IT COULD LEAD TO THE ISSUANCE OF A CORRECTIVE INVOICE. IN CASE THE SMSWISER SERVICES ARE NOT BEING PROVIDED FOR MORE THAN 7 DAYS, THE CLIENT MAY REQUEST THE COMPENSATION ONLY IF ALL ISSUED INVOICES ARE SETTLED.
12.1. This Terms and Conditions are effective as long as the Client is registered as a SMSwiser user. The services are provided by Sokol Producciones Sl to Client on a month-to-month basis.
13.1. The Subscription (an access to the SMSwiser services) shall continue unless and until Sokol Producciones Sl terminates it or the Client cancels it in his SMSwiser account or through SMSwiser’s Support Team. Regardless of the circumstances, such termination shall not give rise to Sokol Producciones Sl’s liability.
13.2. In the event of any termination the Client shall not be entitled to any refunds of any fees. Any outstanding balance for SMSwiser use rendered through the date of termination, and other unpaid obligations during the remainder of the billing period shall be immediately due and payable in full. All data, files or other information stored in the Client’s account shall be no longer available to Client except as provided in the DPA.
13.3. The termination of this agreement shall automatically, and without further action by Sokol Producciones Sl, terminate and extinguish the Client’s right to use SMSwiser.
13.4. Sokol Producciones Sl may suspend or terminate the Client’s access to SMSwiser at
any time, without advance notice, for any reason that Sokol Producciones Sl finds valid
in its sole discretion, including but not limited to where Sokol Producciones Sl
(A) the Client is in any way in breach of the Terms and Conditions;
(B) the Client, at any time, is conducting activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations;
(C) the Client is late with any payment for the usage of SMSwiser for the period of 7 days from the date of payment;
(D) the Client’s overage charges (referred to in point 15.3. of this Terms and Conditions) have been exceeded by four times in relation to the pricing plan chosen by this Client.
14.1. Sokol Producciones Sl is entitled to modify the Terms and Conditions or billing plans. Sokol Producciones Sl will post notice of modifications hereto at the Website. Changes will not apply retroactively and will become effective immediately after they are posted. Modifications to billing plans come into force at the beginning of the next billing period.
14.2. All amendments or modifications shall be binding if the Client continues to use SMSwiser after modifications to these Terms and Conditions came into force.
15.1. The Client must provide Sokol Producciones Sl with a current, valid, accepted method of payment (the “Payment Method”) and billing details to use SMSwiser services, subject to provision of point 3.2.
15.2. Upon the registration and at the beginning of each Subscription Period the Client’s Payment Method shall be charged with the subscription fee according to the ‘Pricing’ section’ or as individually agreed with the Client (the: “Subscription Fee”). First monthly billing period for the Subscription Period (the “Billing Cycle”) starts when the invoice is issued and lasts for the entire period purchased. The Client gains access to their account when the full amount of the Subscription Fee is credited to the Sokol Producciones Sl’s account. If in a given month there is no day corresponding to the day when the Billing Cycle began, the Billing Cycle shall end on the previous day or on the following days according to Sokol Producciones Sl’s sole discretion. The next Billing Cycle starts accordingly, however the Billing Cycle starting date may change due to changes in Subscription such as an upgrade.
15.3. All plans adhere to the usage structure which is defined as the “Event”. The Event is defined as one (1) SMS sent. The number of the Events included in the Client’s Subscription depends on the chosen plan. If the total number of the Events exceeds the included limit specified in the chosen plan, the Client will be additionally billed for the extra number of the Events (the “Overages”) accrued during the previous Billing Cycle. Events and Overages are calculated on the monthly basis. On individual basis Sokol Producciones Sl reserves the right not to take into account and measure any Events that exceed the limit specified in the chosen plan. Overage charges are determined in accordance to the plan chosen. The cost associated with an overage use is defined in the ‘Pricing’ section or individually agreed with the Client.
15.4. The total amount of the Subscription Fee varies depending on the Client’s chosen plan, cost of Overages and cost of any additional features, services or modifications of the Client’s account that were not included in the pricing plan (for more information, go to the ‘Pricing’ section).
15.5. To ensure uninterrupted service, the monthly Subscription is renewed automatically and the Subscription Fee will be charged on a monthly basis according to the Payment Method chosen by the Client upon the registration and at the beginning of each Billing Cycle. In the event that the Billing Cycle begins on a day not included in a given month, Sokol Producciones Sl reserves the right to bill according to the chosen Payment Method and point 15.2 of these Terms and Conditions.
15.6. Annual (1 year) Subscription Period consists of 12 consecutive monthly Billing Cycles and is calculated as a price of the Subscription Fee for selected monthly plan and multiplied by 12. The Subscription Fee for annual and longer Subscription Periods is payable in advance for the entire Subscription Period. Overage charges applies also to annual plans and are settled according to point 15.3 above. On individual basis Sokol Producciones Sl reserves the right to sign an additional agreement (the “Insertion Orders”), in particular with Clients who choose Subscription Period longer than 12 months and on individually priced plans. Sokol Producciones Sl reserves also the right to apply discounts on any Clients’ Subscriptions or Subscription Fees.
15.7. Each Subscription consisting of annual or longer Subscription Period shall automatically renew for successive term corresponding to the duration of the Subscription Period (e.g. the Subscription with annual Subscription Period is automatically renewed for another one year term). To prevent the automatic renewal, the Client is required to provide written notice of its intent to not renew the Subscription, no less than sixty (60) days prior to the end of the current Subscription Period. The Subscription Fee for any annual or longer Subscription Period, is non-refundable if the Client terminates this agreement later. The Subscription Fee paid already in advance for current Subscription Period is non-refundable as well if the Client terminates the Subscription earlier.
15.8. The chosen plan can be upgraded and the next Subscription Period begins on the moment of upgrade. The chosen plan can be downgraded at the end of the Subscription Period and it is not subject to refund.
15.9. The Client has to cancel the Subscription before it renews in order to avoid billing for the next Billing Cycle.
15.10. If the payment cannot be charged to the Client’s credit card, Sokol Producciones Sl may suspend or terminate the Client’s account and the Client shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Sokol Producciones Sl in collecting due amounts plus interest at the highest rate permissible under Maltese law.
15.11. All payments are in Euro’s. The Client’s account shall be debited with corresponding fees in accordance with current rates.
15.12. Sokol Producciones Sl reserves the right to change its payment policies any time in its sole discretion.
15.13. As a rule, Sokol Producciones Sl does not guarantee any refunds. In no case while using SMSwiser services, Client is entitled to a refund of any expenses, costs or other amounts incurred by the Client due to the use of services provided by Sokol Producciones Sl, especially to refund of the Subscription Fee if the Client terminates the Subscription earlier than on the end of the Subscription Period.
15.14. According to the relevant payment providers’ policies some of the transactions may demand Strong Customer Authentication (SCA), which means that electronic payment is performed with multi-factor authentication to increase the security of such a payment.
15.15. By accepting the Terms and Conditions, the Client concludes with Sokol Producciones Sl the agreement on which basis it authorises Sokol Producciones Sl to charge each month variable recurring amounts from the Client’s card in order to the payment of subscription fee and prospective Overages amounts without further action required from the Client (merchant-initiated transactions). In this case, only the first transaction shall generally demand SCA.
15.16. Variable recurring amounts are charged from the Client’s card on the basis of the chosen plan and the amount of Overages calculated according to point 15.3 above.
15.17. The type of used multi-factor authentication as well as demanding SCA in any case depends on the policy of the relevant payment provider that is used by the Client to make a payment.
16.1. The Client shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against Sokol Producciones Sl. The Client shall reimburse Sokol Producciones Sl for the amount of any such taxes or duties paid or accrued directly by Sokol Producciones Sl as a result of this transaction.
16.2. All agreements between Sokol Producciones Sl and the Client shall be governed by, and construed in accordance with, the laws of Spain except for its conflict of law provisions, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.
16.3. Any litigation based hereon, or arising out of, under, or in connection with these Terms and Conditions (and all agreements between Sokol Producciones Sl and the Client), shall be brought and maintained exclusively in the court in Valetta competent for Sokol Producciones Sl’s business seat. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the abovementioned courts for the purpose of any such litigation as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
16.4. Each of the parties hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and Conditions and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
16.5. These Terms and Conditions are made solely for the benefit of Client and Sokol Producciones Sl and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.
16.6. The Client may not assign any of its rights or delegate any of its duties under these Terms and Conditions without the prior written consent of Sokol Producciones Sl. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms and Conditions.
16.7. Except as otherwise expressly provided in these Terms and Conditions, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of Sokol Producciones Sl or the Client.
16.8. The relationship of the Client and Sokol Producciones Sl established by these Terms and Conditions is that of independent contractors, and neither party is the employee, agent, partner or joint venturer of the other party.
16.9. Neither party shall be deemed in default of this Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
16.10. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Sokol Producciones Sl in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
16.11. Except as may be set forth in an written agreement signed between Sokol Producciones Sl and the Client, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of the SMSwiser between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.
16.12. If any provision of these Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of such provision.
16.13. If Sokol Producciones Sl prevails in any action, suit, or proceeding arising from or based upon these Terms and Conditions, Sokol Producciones Sl shall be entitled to recover from the Client Sokol Producciones Sl’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
16.14. The headings in these Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms and Conditions nor affect any of the rights or obligations of the parties.
16.15. Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail or postage prepaid to the address of the respective party as indicated herein. Copies of all notices shall be sent to Sokol Producciones Sl, Calle Marti Costa, 1 - A. PISO 2 2, Palma, 07013, Baleares, Attn: SMSwiser Legal Department.
16.16. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.
16.17. Any complaints that arise from this Terms and Conditions or use of SMSwiser.com can be directed to firstname.lastname@example.org. All complaints will be handled within a reasonable timeframe, not exceeding 30 days.