These Terms of Service (Agreement) set out the legally-binding terms and conditions for your use of the Services. This Agreement is effective on 10 September 2019 for all Clients agreeing to this Agreement for the first time, and 1 November 2019 for all Clients who had an existing agreement with Darbird before 10 September 2019 except where otherwise communicated with you.
To be eligible to register for an Darbird account in order to use the Services, or to continue using the Services, you must review and accept this Agreement by clicking on the “I Accept” button or other mechanism provide.
BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES IT REFERS TO. ONCE ACCEPTED, THIS AGREEMENT SHALL CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US AND SHALL SUPERSEDE ANY EXISTING AGREEMENT YOU MAY HAVE WITH US EXCEPT WHERE OTHERWISE COMMUNICATED. PLEASE BE AWARE THAT BY CONTINUING TO USE OUR SERVICES AFTER 10 SEPTEMBER 2019 (OR 1 NOVEMBER 2019 RESPECTIVELY), YOU ARE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES.
In this Agreement, we, us, our or will refer collectively to Darbird and it’s subsidiaries/affiliates existing from time to time and the terms you, your and Client will refer to you. If you are registering for an account in order to use the Services on behalf of an organisation, then you are entering into this Agreement on behalf of that organisation and represent and warrant that you have the authority to bind that organisation to this Agreement (and, in which case, the terms you, your and Client will refer to that organization). Darbird and the Client are each referred to in this Agreement as a Party and collectively as the Parties.
- Affiliate means in relation to a Party, any other body corporate directly or indirectly, Controlling, Controlled by, or is under common Control with, such Party and Affiliates shall be construed accordingly;
- API Key means the unique and secret authentication code issued to you on the User Account which you shall use to access the API Platform;
- API Platform means Darbird’s application programming interface platform accessible on the Site;
- Control means, in relation to a body corporate, the power or ability of a person to secure that the affairs of the body corporate are conducted directly or indirectly in accordance with the wishes of that person: (1) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (2) by virtue of any powers conferred by the articles of association, or any other document, regulating that or any other body corporate, and Controlling and Controlled shall be construed accordingly;
- Disclosing Party means a Party that discloses Confidential Information;
- Force Majeure Event means any happening or event which is beyond the reasonable control of a Party and which negatively affects a Party’s performance of its obligations or makes such performance impossible or so impracticable as to be considered impossible in the circumstances including acts of God, riots, war, armed conflict, civil strife, acts of terrorism, acts of government, the Regulator or other regulators, fire, power outages, material adverse weather conditions including flood, storm or earthquake, or disaster, geographical topography, or the unexpected refusal, or inability or delay by a third party to supply goods or services to a Party;
- Intellectual Property means any and all patents, trademarks, copyrights, inventions, Works, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information, know-how, trade secrets, discoveries, creations, inventions or improvements upon or additions to an invention, moral rights, any research effort relating to any of the above and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
- Network Provider mean a network provider in a country Darbird operates in and Network Providers shall be construed accordingly;
- Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- Person includes a natural person, body corporate, unincorporated venture, trust, joint venture, association, statutory corporation, state, state agency, governmental authority or firm;
- Receiving Party means a Party that receives Confidential Information;
- Regulator means the relevant regulatory authority in a country Darbird operates in that governs telecommunications or payments;
- Representatives means a Party’s directors, officers, employees or agents;
- Service Order Form means the service order form(s) executed by you and Darbird , which describes the specific Service you have requested and the applicable pricing of the Services, which shall form part of this Agreement;
- Site means Darbird’s website being https://www.darbird.com; and
- Stash means your wallet in the User Account to which you load a value of money to utilize in respect of the Services.
2.1 Darbird is a service company which provides mobile telecommunication solutions through its API Platforms (the Services). This Agreement governs the Parties’ respective obligations regarding all Services provided to or used by you. Darbird may update this Agreement from time to time. If we do, the updated Agreement will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated Darbird the top of this Agreement. We will provide you advance notice of any material revisions to the email address linked to your User Account, unless a different email address is specified in a Service Order Form. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.
2.2.2 the Code of Conduct;
2.2.3 the Service Level Agreement; and
2.3 Darbird grants you a limited, revocable, personal, non-exclusive, non- transferable, non-sub licensable licence until this Agreement is terminated to use the API Platform. This licence shall extend to your Affiliates, provided that such Affiliates are acting via your User Account and provided further that you remain jointly and severally liable for all acts and omissions of your Affiliates.
3. Access and Security
3.1 To access and use the Services, you must create a User Account on the API Platform. The User Account shall be solely accessible using a username and password set by you, and an API Key generated by you on the User Account.
3.3 You shall access the User Account over a secure HTTPS connection. You shall be fully responsible for contents of your User Account, the API Key and your internal local area network and security setups, including configuration of firewalls and other protocols required to protect your network from hackers and malicious intrusion.
3.4 You may be requested to complete a Service Order Form confirming your requested Service and you shall comply with Darbird’s KYC documentation when required, including but not necessarily limited to submitting to Darbird :
3.4.5 Darbird may from time to time require you to update the identification information/ documents it holds on your behalf as may be required by a Regulator or a Network Provider and shall have the discretion to suspend the provision of the Services until such update is provided.
4. Fees and Payment
4.1 Unless otherwise agreed upon by both Parties in writing, you shall pay Darbird the fees set out on the Site, in advance. Additionally, Darbird shall charge you, in accordance with 5.2 any additional penalty you incur as a result of a violation of the Code of Conduct.
4.2 Invoices in respect of any invoiceable payments shall be sent to the e-mail address specified by you, and shall be deemed received on the date sent. Such invoices will specify the payment period. Without prejudice to any other right or remedy that it may have, if you fail to pay an invoice within seven (7) days of the due date indicated in such invoice, Darbird shall charge a finance charge of 1% per month on the sum due payable from the due date until the invoice is settled. If you fail to pay Darbird any sum due within thirty (30) days of the due date indicated in such invoice, Darbird may suspend all or part of the Services until payment has been made in full. Darbird shall immediately without undue delay or any additional requests from you reactivate any Services once it has received full payment from you.
4.3 The fees shall be subject to change from time to time in line with any rates adjustments by the Network Provider, the Regulator, and/or the government of the relevant jurisdiction the Services are provided in and such change shall be notified to you as soon as reasonably possible. Any changes in charges Darbird the discretion of Darbird shall be notified to you Darbird least thirty (30) days prior to the changes taking effect.
5. Code of Conduct
5.1 Darbird hereby informs you that, it has or may from time to time become party to codes of conduct with the Network Providers and the Regulator and that such provisions form part of the Code of Conduct. You shall comply with the Code of Conduct and Darbird shall as soon as reasonably practicable inform you of any amendments made from time to time.
5.2 Darbird shall have the right to terminate this Agreement if you fail to comply with the Code of Conduct. Further, Darbird shall charge you a penalty as may be determined by the Network Provider and/or the Regulator for each spammed message sent by you to its end users.
6. Acts of a Network Provider
6.1 You are hereby made aware that a Network Provider may have the right to act unilaterally and to the prejudice of Darbird including but not limited to the Network Provider (a) reviewing its rate charge Darbird any time and (b) Darbird its sole direction deciding to terminate a service. The Parties hereby agree that in the event that an act by the Network Provider against Darbird prejudices you, you shall have no claim of whatsoever nature against Darbird and/or its Representatives, irrespective of the prejudice suffered by you.
6.2 The Parties agree to have good faith negotiations to amend the Agreement in the event of a unilateral and prejudicial act by a Network Provider against Darbird and in the event that Parties cannot agree to the amended terms, either Party shall have the right to terminate the Agreement in accordance with clause
7.1 In this Agreement, Confidential Information means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include information which is already known to the receiving Party Darbird the time of disclosure by the Disclosing Party; is or becomes publicly known through no wrongful act of the Receiving Party; is independently developed by the Receiving Party without benefit of the Disclosing Party’s Confidential Information; or is received by the Receiving Party from a third party without restriction and without a breach of an obligation of confidentiality.
7.2 Each Party hereby agrees that if either Party provides Confidential Information to the other Party, such Confidential Information shall be held in the strictest of confidence and the receiving Party shall afford such Confidential Information the same care and protection as it affords generally to its own confidential and proprietary information (which in any case shall not be less than reasonable care) to avoid disclosure to or unauthorized use by any third party.
7.3 The receiving Party may disclose confidential Information to the minimum extent required by (a) any applicable order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body or (b) the applicable laws or regulations of any country or governmental authority with jurisdiction over the affairs of the receiving Party, provided, however, before the receiving Party discloses any information under this clause, the receiving Party shall (to the extent permitted by law) use all reasonable endeavors to: (i) inform the disclosing Party of the full circumstances and the information that will be disclosed; (ii) take all such steps as are reasonable and practicable in the circumstances to agree the contents of such disclosure with the disclosing Party before making the disclosure; (iii) consult with the disclosing Party as to possible steps to avoid or limit disclosure; and (iv) co-operate with the disclosing Party should the disclosing Party elect to contest or seek further assurances with respect to the obligation to make a disclosure pursuant to this clause 7.
7.4 Darbird shall ensure that the collection, handling, storage, processing and disposal and any other use (collectively Processing) of Personal Data is done in compliance with all applicable data, privacy and cyber security laws and that Personal Data that is accessed or collected during the performance or utilization of the Services is kept secure and Darbird shall use appropriate technological, organisational and security practices and systems in respect of the Personal Data to comply with legal and regulatory requirements including data protection requirements. Darbird shall take prompt remedial action against any unauthorised use, storage, reproduction or redistribution of the Personal Data and shall immediately notify you of any Personal Data breaches and no later than seventy two (72) hours after it has become aware of the breach. Darbird shall keep records of Personal Data breaches, indicating the relevant facts, their effects and the remedial actions taken.
7.5 If Darbird will be Processing Personal Data from the EEA, Switzerland, or the United Kingdom on your behalf, and you wish to execute a Data Protection Agreement (DPA) with Darbird , as required by the General Data Protection Regulation (GDPR), then you may do so by submitting a request . Upon receipt of your request, we will send you a GDPR DPA ready for execution.
8. Intellectual Property
8.1 Each Party shall retain its Intellectual Property whether registered or not, used by or related to either Party. All legal and beneficial rights the Intellectual Property which Darbird provides to you for the purpose of using the Services will remain Darbird all times the property of Darbird or its owner or licensor. To the extent that it is so entitled, Darbird grants you a non-exclusive, non-transferable licence to use such Intellectual Property for the sole purpose of using the Services as contemplated under this Agreement. The Client shall not modify, adapt, translate, reverse engineer or disassemble Darbird’s API Platform, Services or any other Intellectual Property owned by Darbird .
8.2 If you provide any feedback to Darbird the Site or Services, you hereby assign to Darbird all right, title, and interest in and to the feedback, and Darbird is free to use the feedback without payment or restriction.
9. Term and Termination
Unless otherwise specified in a Service Order Form, this Agreement, as may be updated from time to time, will commence on the date it is accepted by you and shall continue unless terminated in accordance with this clause 7
Either Party shall be entitled to terminate this Agreement in the event that: (i) the other Party;
9.2.1 commits a breach of any of its material obligations herein and fails to remedy such breach within thirty (30) Days after delivery of written notice thereof from the non-defaulting Party; (ii) if it repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or (iii) the other Party becomes insolvent.
- if you breach the Code of Conduct or
- where Darbird has been instructed to cease providing the Services by a Regulator or by any other competent authority, or if an agreement between Darbird and a Network Provider integral to the provision of the Services is terminated.
A Party may terminate this Agreement without cause by serving thirty (30) days’ written notice of termination on the other Party.
9.5.1 Darbird shall deactivate the Services immediately upon expiry of the notice period provided in the notice of termination issued by either Party or immediately on receipt of a notice of termination from either Party where no period has been provided (the Effective Termination Date).
9.5.2 The termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Effective Termination Date, including the right to claim damages in respect of any breach of the Agreement which existed Darbird or before the Effective Termination Date.
9.5.3 Upon termination of this Agreement, any amounts in respect of the Service charges payable which have not been paid shall be paid in full by you within thirty (30) days of the Effective Termination Date.
9.5.4 Where applicable, Darbird will refund the following amounts paid by you less any deductions which Darbird is entitled to charge to you under this Agreement within thirty (30) days of the Effective Termination Date:
- the deposit (if any) paid by you (without interest); and
- the value of any credited but unutilized amount in the Stash.
10.1 Subject to the limitations in clause 11, each Party (the Indemnifying Party) hereby agrees to indemnify, defend, protect and hold harmless the other Party (the Indemnified Party) and its Affiliates, from and against, and to assume liability for any loss, damage, expense or cost (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or in connection with: (i) an infringement by the Indemnifying Party of a third party’s Intellectual Property (ii) any violation by the Indemnifying Party of any applicable law or governmental regulation; and (iii) any material breach by the Indemnifying Party of its obligations under this Agreement. You further agree to indemnify Darbird against any claims of whatever nature by third parties arising from or due to your use of the Services.
11. Limitation of Liability
Except as provided in clause 10, in no event shall either Party be liable to the other Party for any consequential, special or indirect losses or damage sustained by either party or any third parties in using the Services, howsoever arising whether under contract, tort or otherwise (including, without limitation, third party claims, loss of business or profit, loss of, customers, loss of data or information, cost of substitute performance, or damage to reputation or goodwill) even if it has been advised of the possibility of such damages.
You hereby authorise Darbird to send notices to you relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address you provide to us in the Service Order Form, and if no Service Order Form has been executed, to the email address linked to your User Account. It is your responsibility to keep your email address current, and you will be deemed to have received any email sent to the last known email address Darbird has on record for you. Notices that Darbird sends to you via email will be deemed effective upon Darbird’s sending of the email. Notices provided to Darbird under this Agreement shall be sent to the attention of email@example.com, with a copy sent to the following address with respect to any legal matters, Darbird firstname.lastname@example.org.
No variation, amendment or any alteration to any of the terms and conditions of this Agreement shall be of any force or effect unless they have been reduced to writing and have been duly signed by the Parties. The Parties agree that no other terms or conditions, whether oral or written, and whether express or implied, apply to this Agreement.
No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same, and any such waiver will be effective only in a specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege.
If any term of this Agreement is to any extent illegal, otherwise invalid or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms shall remain in full force and effect; and to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
16. Entire Agreement
16.1 This Agreement including the additional terms, policies and agreements indicated in clause 2.3, constitutes the entire agreement of the Parties and it supersedes any prior written or oral agreements between the Parties. In case of any ambiguity or conflict between this Agreement, and a Service Order Form, this Agreement shall take precedence except where the dispute is in relation to the applicable pricing.
Neither Party shall assign any or all of its rights and obligations under this Agreement without the prior written consent of the other Party.
18. Force Majeure Event
18.1 Provided it has complied with notice requirements under this clause, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than ten (10) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
18.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than two (2) months, the Party not affected by the Force Majeure Event may terminate this Agreement by giving thirty (30) days written notice to the Affected Party.
19. Governing Law and Dispute Resolution
19.1 Governing Law
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with the laws of England and Wales.
19.2 Amicable Settlement
19.2.1 The Parties shall use their best efforts to settle amicably any dispute arising from or in connection with this Agreement through good faith negotiations between the senior officers of the Parties. The Party seeking resolution of a dispute will first give notice in writing to the other Party, setting forth the nature of the dispute and a concise statement of the issues to be resolved.
19.2.2 All information exchanged during this meeting or any subsequent dispute resolution process, shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the Parties and their Representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the dispute resolution process.
19.3.1 If the dispute has not been settled amicably within thirty (30) days (or such longer period as may be agreed upon between the Parties) from when the dispute resolution process was instituted, a Party may elect to refer the dispute to arbitration for final resolution under the arbitration rules of the London Court of International Arbitration (LCIA).
19.3.2 Where a Party elects to commence arbitration proceedings, such arbitration shall be determined by a single arbitrator to be appointed by agreement between the Parties or, in default of such agreement, within fourteen (14) days of the notification of a dispute, the arbitrator shall be appointed upon the application of either Party, by a Judge of the Supreme Court of Mauritius.
19.3.5 Not withstanding the foregoing, a Party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.