Your use of a Swift SMS Gateway® website, system or services signifies your agreement with these Terms of Use. These Terms of Use are subject to change without prior written notice at any time, in Swift SMS Gateway®’s sole discretion. It is your responsibility to review these Terms of Use from time to time for such changes.

Disclaimer

Swift SMS Gateway® may have provided links and pointers to Internet sites maintained by third parties. Swift SMS Gateway® does not operate or control in any respect any information, products or services on these third-party sites. The materials in this site and the third-party sites are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Swift SMS Gateway® disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Swift SMS Gateway® does not warrant that the functions contained in the materials will be uninterrupted, or error-free, that defects will be corrected, or that this site or the server that makes it available, are free of viruses or other harmful components. Swift SMS Gateway® does not warrant or make any representations regarding the use, or the results of the use of the materials in this site, or in third-party sites in terms of their correctness, accuracy, timeliness, reliability or otherwise. You (and not Swift SMS Gateway®) assume the entire cost of all necessary maintenance, repair or correction.

Ownership

Copyrighted © 2007 – 2016. Swift SMS Gateway Inc.® All Rights Reserved. Unless otherwise specified, all components, such as layout design, graphics, HTML, javascript, multimedia presentation of this web site are the sole property of Swift SMS Gateway®. No materials from this web site may be reproduced, modified, copied, republished, or distributed in any form without Swift SMS Gateway®’s prior written consent.

www.smsgateway.ca™, www.swiftsmsgateway.com™, www.grext.com™ and the corporate logos of SMS Gateway, Swift SMS Gateway® and Grext as well as other product and service logos are trademarks of Swift SMS Gateway Inc.® Resellers and partners of Swift SMS Gateway® may place additional terms upon these services exclusive to their own sale. Swift SMS Gateway® holds no liability or extended warranty to others terms. Other trademarks, or service marks are the property of their respective owners.

Entire Agreement

SA Terms and Conditions

Services

Swift SMS Gateway Inc.®, otherwise referred to herein as “Swift” shall furnish to you; the “Customer”, the services selected as per contracted to a customer’s formal “Service Agreement” (SA) and/or; a monthly plan that you subscribe to. Collectively, these are all to be subject to these terms and conditions and be referred to as the “Services”. Historically, Swift has previously referred to the SA as a “Master Service Agreement” (MSA). They are the same. Your use of our services represents your implicit acceptance and consent to be bound by these terms and conditions.

Fees

The Customer shall pay the fees for the Services at the rates as specified in their SA, plus applicable taxes (the “Fees”). The payments shall be due and payable by the Customer to Swift monthly in advance. In the event of suspension of services due to the Customer’s delinquency, should the SA be re-instated, a $25 reactivation fee from Swift is automatically levied in addition to the regular fees.

Invoicing

Invoices will be issued monthly for specific customers, at Swift’s sole discretion subject to post-paid services. Invoiced amounts are payable at the invoice date and are subject to a late payment charge of four percent (4%) per month calculated from the invoice date, if not paid within thirty (30) days of the invoice date and compounded monthly. In accordance with Canadian Business Law, this is in full adherence with, as detailed and held accountable by section 347 of the Canadian Interest Act.

Credit Check

The Customer consents to Swift, subject to applicable legislation, conducting a credit check on the Customer.

Development Charges

Where special facilities, or equipment are necessary, or where Swift must incur any unusual expense in order to furnish the Services to the Customer over and above standard commencement fees (collectively, known as the “Setup”), Swift shall provide to the Customer a written quote for the Setup. If the Customer acknowledges in writing its agreement with the quote, then Swift shall provide all the additional fees as described and be entitled to assess the additional charge to the Customer, which shall be payable upon the commencement of the Term (as herein defined).

Term

This agreement shall be for the term as specified on the SA.

The requested commencement will be no more than 30 days past due as specified unless otherwise stated.

Swift shall demonstrate best effort to inform the Customer of any possible delays which may inhibit the ability to meet a requested commencement date.

This agreement shall be deemed renewed in full at the end of its specified term, if no notice is given to the contrary within thirty days before its expiry date.

Termination Fee

If the Term is for one (1) year or more, and this SA is for any reason terminated by either Swift or the Customer prior to the first anniversary date of the Commencement Date, the Customer shall pay to Swift a termination fee (the “Termination Fee”) equal to the remaining unpaid amount of the Fees for the period from the date of termination to the first anniversary date of the Commencement Date.  The Customer acknowledges that the Termination Fee is a genuine pre‑estimate of Swift’s liquidated damages and is not a penalty and is not in substitute or election of any other right, or remedy Swift may have at law or in equity.

Customer Obligations

The Customer shall:

Be responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service;

Be aware that Telcos and Mobile Network Operators (carriers) assign text-messages with a default life time and any message that cannot be delivered successfully within the life time assigned to it will be discarded, without any notice;

Be responsible for paying all access and pass-through charges (e.g. ISP, carriers) if incurred while using the Service;

Be aware that Swift is not liable for any loss incurred by the failure of a message to be delivered and you acknowledge that damages for financial, or other loss resulting from delivery failure cannot be claimed from Swift for any such non-deliveries;

Be aware that while short codes are required for messages with premium content, carriers deem message content to have zero value.

Be aware of and comply with, changes to any federal, or provincial law which may relate to the Customer’s use of the Services.

The Customer shall not:

Obtain, by any means whatsoever, information regarding the personal identification, or password of any other person which is a customer of Swift or any network to which the Customer may be permitted access;

Obtain, or seek to obtain access to or interfere with any programs, or data maintained by Swift;

Develop, or use programs which adversely affect, or impact other customers, the Services, telecommunications, the Internet or any computer network;

Use, transmit or store anything obscene, offensive, or defamatory, or which appropriates a personality without legal permission, or which in any way violates or infringes copyright, trademark, or other intellectual property rights;

Utilize the Services and our access to telecommunications and/or the Internet for any purpose which is contrary to the laws of any government having jurisdiction over Swift and/or the Customer;

Omit any act or cause or permit any act to be committed or provide any services which will conflict with or affect in any way the provision of the Services by Swift;

Send unsolicited marketing messages (i.e. SPAM) as summarized here and at all times subject to CASL terms as detailed and enforced by the Government of Canada.

In connection with any investigation of a customer’s failure to observe its obligations or any malicious disruption of any computer system or computer program of Swift and/or of any breaches of the terms of this agreement by the Customer or by any person who has access to the Services provided to the Customer, the Customer agrees that Swift may in its sole discretion create and keep backup information and examine the Customer’s programs, data, printed output and other media.

Swift Obligations

Swift shall:

Use reasonable efforts to provision in a timely fashion the Services, provided that the scope of work matches the described services contracted to.

Facilitate SMS messaging through different routes (carriers) and provide general council, but not be held accountable for the level of reliability and support for special features that vary according to the carrier and (if applicable) third-parties.

Implement reasonable security policies to safeguard the Customer’s data and any other value added Services that the Customer has subscribed for under their SA above.

Force Majeure

Swift shall not be liable for any failure, or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of Swift and its partners. In addition, Swift shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any material necessary for the performance of Services.

Maintenance, Testing and Configuration of the Services

Swift’s customer support centre shall be the sole contact for reporting trouble with respect to the Services. The telephone number is; 1-800-264-7141 Ext. 2 or such other number as may be communicated by Swift to the Customer from time to time. Upon receipt of a trouble report, Swift shall initiate maintenance action. Following correction of the trouble, Swift shall inform the Customer that the Services have been restored. Swift may suspend the provision of the Services to the Customer for a reasonable length of time in order to maintain, test and configure the Services. Swift reserves the right to charge for unnecessary service calls requested by the Customer which are not the result of the disruption of Swift services and are related to customer or third party equipment, service or actions.

User Name and Password

The Customer shall provide Swift with a Login ID and password which shall be used to gain access the Services;

The Customer shall be solely responsible for all use of the Internet and maintaining the security of their Login ID and password and for preventing any unauthorized use.

Mobile Number Validation

The Customer shall provide an authentic mobile number from which they will conduct testing and development in association with Swift providing a license key to gain access to the Services;

At no time shall that number be masked and/or forwarded to an aliased number. Swift expects the number to be a real number in order for us to provide any, and all ability to support the Services, and that the real number is associated with the Customer and/or a member of the Customer’s development team.

Condition of Data

In relation to Swift’s service, any information, materials or data (the “Material”) supplied to Swift must be in a form compliant to what is specified in the SA) in order for Swift to supply Services to the Customer;

In the event the materials provided by the Customer to Swift requires manipulation or revision by Swift, then Swift may, at its option and at any time, reject the materials, including any portion of the materials which has been put on our server(s). Swift agrees to notify the Customer immediately of its refusal to place all or any portion of the materials on Swift’s server(s) and to provide the Customer with the opportunity to amend or modify the material in order for Swift to provide Services. If the Customer fails to modify any portion of the materials, as directed by Swift, then within 30 days of such a request, this agreement in relation to Services shall be deemed to be terminated.

Short-Codes

Should Services provided to you the Customer, allow you access to Short-Codes for SMS broadcasting, the Customer covenants and agrees with Swift not to, in any manner whatsoever, sell, or transfer to any third party Swift’s Short-Codes, without the express written consent of Swift. Short-Codes are available to the Customer only, under the terms of contract and may not be shared in any way.

The Customer absolves Swift from any liability should third parties and/or carriers block, disrupt, or delay the SMS broadcasting of Short-Code campaign(s). Such occurrences are not regarded as a breach of contract, as long as Swift shall demonstrate a best effort in general council to assist in the resolution of such occurrences on the Customer’s behalf.

Credits

Credits are paperless vouchers that you purchase and which facilitate the sending of SMS messages. The submission of a seemingly valid message will cause one (1) credit to be debited from your account in domestic broadcasts pertaining to Canada and USA. All other destinations are deemed as “off-shore” and are subject to the rates specified in your SA. The Customer can obtain the real-time account status and number of remaining credits at any time through the online interface.

Credits are subject to the terms of your SA. They may either expire monthly, or not based on the service subscribed to. If they do not expire monthly, note that Swift SMS Gateway® reserves the right to expire credits one year from date of last account activity in accounts that at our discretion are deemed as dormant in light of basic accounting practice and principals. In the case of Reseller accounts, it is the Reseller’s parent account that determines the activity level of the account. Notwithstanding the foregoing, the value of credits will not change over time and thus the Customer acknowledges that it is their choice to expire message credits based on non-use and Swift pledges to honour the use of our network and facilities for the life of that message credit.

A Customer’s payment for credits shall be deemed completed when Swift receives the full amount. Thereafter, the Customer’s account will be credited immediately after Swift verifies receipt of payment. If a Customer has elected to make a payment by credit card and Swift does not receive payment from the credit card issuer, the Customer agrees to pay all amounts due, immediately upon demand by Swift.

Warranty

The Customer acknowledges that the Services may be subject to unscheduled and unannounced outages and breakdowns which may not be rectified promptly. The Customer acknowledges that Swift does not warrant uninterrupted or error free Services and that Swift does not warrant the content, availability, accuracy or any other aspect of any information including, without limitation, all data, files and all other information or content in any form or of any type, accessible or made available to or by Customer or its end users through the use of the Services.

In the event of the interruption, failure or breakdown in the Services, or of the loss or spoiling of the Customer’s programs or data, Swift makes no warranty that either will be restored. The Customer assumes full responsibility for backing up their files.

The Customer acknowledges that text-messages are transmitted unencrypted and that eavesdropping of cell phone communications, including SMS delivery, by third parties is possible. Swift recommends that Customers ensure sensitive and valuable information is communicated by a protected and/or encrypted method. Swift shall use commercially reasonable efforts to make access to the Service available through the required access protocols, but makes no warranty or guarantee that you will be able to access the Service at any particular time or any particular location.

Interruption Rebate

If there is an interruption of the Services, Swift’s total liability arising out of a Customers use of the Services for direct damages shall not in the aggregate exceed an amount equal to the monthly transaction fee paid by the Customer in the month pertaining to the period of the interruption.

For greater certainty, interruption does not include a network failure outside of Swift’s core network, any failure caused by the Customer, any failure caused by power outage, or human error, or any failure due to termination of the Services by Swift in accordance with the terms of this Agreement.

Any Interruption Rebate shall, upon written request by the Customer, be credited by Swift to the Customer within 30 days after Swift agrees to pay the customer for the service interruption.

Limitation of Liability

Under no circumstances will Swift or its successors and assigns, be liable to the Customer for any incidental, special or consequential damages, expenses, costs, liability, loss, or damage whatsoever, whether arising in negligence, tort, statute, equity, contract, common law, or any other cause of action or legal theory.  The Customer agrees, acknowledges and confirms that Swift’s liability arising out of, or in connection with this Agreement and the provision of the Services and the Customer’s exclusive remedy, shall be limited to the Fee paid by the Customer and that this limitation is fair and reasonable in the commercial circumstances of this Agreement and that Swift would not have entered into this Agreement but for the Customer’s agreement to limit Swift’s liability in the manner and the extent, provided for herein.

For greater certainly, the Customer agrees that Swift and its successors and assigns shall not be liable for any lost profits, anticipated revenue, loss of data, loss of use of any information system, lost business revenue, failure to realize expected savings, or any other commercial, or economic loss of any kind whatsoever arising out of, or in connection with this agreement, or the provision of the Services, even if Swift has been advised of the possibility of such loss.

Swift is not liable for protection, or privacy of electronic mail or other information transferred through the Services, or any other network provider its customers may utilize.

Swift assumes no liability arising from the use of the Services furnished by Swift in combination with services, products or equipment provided by Customer, or any third parties.

The Customer shall have sole responsibility for the preparation of its programs and data. Swift, its directors, employees, sponsors and agents shall not be responsible for any fault, or error in the Customer’s programs or any programs accessed through the Services, or the Internet and Telco carriers.

This Section shall apply even in the event of a breach of condition, a breach of an essential, or fundamental term, or a fundamental breach of this Agreement.

Indemnity

The Customer shall indemnify and save Swift, its successors and assigns and their directors, officers, employees and agents harmless from and against all loss, liability, or damages of any type and expense, including reasonable legal fees and disbursements, arising from any and all claims by any third party, including end users and distributors (collectively, the “Third Party”), in connection with the use of the Services (and related equipment) by the Customer or any Third Party, or in connection with the Customer’s failure to comply with its obligations under this Agreement, whether the failure is attributable to the Customer, or to some other person using the Customer’s account with, or without permission of the Customer.

The Customer shall indemnify Swift, its successors and assigns and their directors, officers, employees and agents, against any claim by a Third Party for alleged infringement of any copyright, trademark, or any other intellectual property rights which arises as a result of the storage, or processing of any of the Customer’s programs, or data on or through the Services or the Internet and Telco carriers.

The indemnities contained within this Article shall survive termination of this Agreement for the maximum time period permitted by law.

Dispute Resolution

In the event of any dispute, controversy, claim or alleged breach respecting this Agreement which cannot be resolved (each a “Dispute”), the Dispute shall be submitted to arbitration. The arbitration shall be held in Toronto, Ontario and shall be conducted in accordance with the Arbitration Act (Ontario), by a single arbitrator appointed by a Justice of the Ontario Court of Queen’s Bench. The decision of the arbitrator shall be final and binding upon the parties and the expense of the arbitration shall be paid as the arbitrator determines.

Termination and Migration

Swift may, with reasonable notice, terminate all or any of the Services for any breach of this agreement by the Customer, including non-payment by the Customer of the Fees and all other amounts payable by the Customer to Swift pursuant to the terms of this agreement.

Swift may, on thirty (30) days prior written notice to the Customer, terminate all, or any of the Services, for any reason whatsoever.

Either party shall be entitled to terminate this agreement immediately with one day’s written notice in the event of the other party’s insolvency, receivership or voluntary or involuntary bankruptcy or in the event that Swift ceases to offer the Services. In the event of default by the Customer, any and all payments required to be made to Swift by the Customer shall be due and payable immediately.

Termination of this agreement for any reason shall not relieve the Customer from any liability for amounts owing and accrued prior to the time that such termination becomes effective and any Termination Fee.

Unused message credits have no redeemable cash value.

Swift reserves the right to delete Customer’s personal files if the Services and this agreement are terminated.

Change Request

If the Customer wishes to order additional services, or make a change to the Services:

The Customer may submit to Swift a change request in discussion with a Swift Account Manager, or representative detailing the change in the Services being requested;

The Customer may purchase additional message credits on-line at any time which will be added to the base-line amount contracted to in the “Services Agreement”.

Swift will respond formally to the Customer in writing via e‑mail within fifteen (15) business days of receipt of the Change Request (the “Estimate”), stating whether the change may be made, and if so, specifying the estimated cost and time required to implement the change and the impact, if any, of the change on the Services; and

The Customer may respond to Swift in writing via e‑mail within fifteen (15) business days of receipt of the Estimate by either advising Swift to proceed with the change based on the estimated cost and time schedule specified in Swift’s response, or by providing written notice that the Customer is withdrawing the Change Request (the “Withdraw”). For greater certainty, if Swift does not receive the Customer’s Withdrawal 7 days within delivery of the Estimate, then Swift shall deem the Change Request to have been withdrawn by the Customer.

Swift Property and Equipment

All material and equipment provided by Swift and used in the provision of the Services (“Swift Equipment”) shall at all times be and remain the exclusive property of Swift and its suppliers.

Nothing in this agreement contemplates, constitutes, or creates a transfer or license of any intellectual property from Swift to the Customer.

Swift may in its absolute discretion and without notice to the Customer, at Swift’s cost, make changes to or replace the Swift Equipment and any other equipment used in connection with the provision of the Services.

Independent Contractors

The parties to this agreement agree that the relationships created by this agreement are that of independent contractors.

Confidential Information

“Confidential Information” means any data, documentation, or other information of a proprietary nature and which a party ought to know is confidential or proprietary, which is disclosed or made available to the other party in connection with the negotiation, preparation, or performance of this agreement and the design, installation, delivery, or implementation of the Services, including without limitation, the network design specifications.

Each party agrees not to disclose the Confidential Information of the other party without the other party’s written consent, except as required by law and agrees to take such care to protect the confidentiality of the Confidential Information as would be taken by a reasonable party to protect its own confidential information from disclosure. Furthermore, each party shall indemnify and save the other harmless from any losses, or damages directly, or indirectly caused by the disclosure of Confidential Information by the party or any of its agents, contractors, subcontractors, employees, successors, or permitted assigns. Further information on Swift’s Privacy Policy can be found here.

Both parties rights and obligations under this Section survive any termination of this agreement for the maximum amount of time permitted by law.

General Provisions.

Amendment: All amendments to this agreement shall be in writing duly executed by each party in the same manner and with the same formality as this agreement.

Assignment: The Customer shall not assign this agreement without the prior written consent of Swift, which consent shall not be unreasonably withheld. Any attempted assignment without such prior written consent shall be void. Swift shall be permitted to assign this agreement without the consent of the Customer. If Swift assigns its rights under this agreement to any lender in the future (each a “Lender”) as security for Swift’s indebtedness to that Lender, Customer agrees that Lender shall not be responsible to assume or perform any of the obligations of Swift under this agreement unless and until Lender delivers a written notice to Customer notifying that Swift has defaulted in its indebtedness or its obligations to Lender and that such Lender wishes to maintain this agreement with the Customer and in connection therewith to assume the obligations of Swift hereunder. If Lender delivers such a notice to Customer, the Lender shall not be liable to perform any of the obligations of Swift nor shall it be responsible for any of the defaults of Swift under this agreement accruing due or to be performed or occurring prior to the date of the Lender’s notice to Customer and Customer’s only recourse with respect to defaults by Swift under this agreement will be against Swift.

Definitions: Use of the term “Customer” shall in all cases include the directors, officers, employees and agents of the Customer.

Discretion of Swift: Any discretion, option, decision, or opinion by Swift shall be sufficiently exercised or formed if exercised or formed by or subsequently ratified by Swift’s system administrator or any other person or persons designated by Swift’s directors.

Entire Agreement: This agreement constitutes the entire agreement among Swift and Customer with respect to the matters referred to herein and supercedes all prior negotiations, proposals, agreements, representations, warranties, whether oral, or written, with respect to such matters. All Swift invoices referencing Terms and Conditions shall be bound by this, unless specifically mentioned otherwise in said invoice.

Enurement: This agreement shall be binding upon and enure to the benefit of Swift and the Customer and their respective successors and permitted assigns.

Governing Law: This agreement shall be governed by and interpreted according to the laws of the Province of Ontario and the laws of Canada applicable therein.

Interpretation: In this agreement, the headings are for convenience of reference only and shall not affect its construction, or interpretation.

Non-Waiver: No waiver of any term or provision or of any breach or default shall be valid unless in writing and signed by the party giving such waiver and no such waiver shall be deemed a waiver of any other terms or provision of any subsequent breach or default of the same or similar nature.

Notice: All notices provided for shall be given in writing and transmitted by personal delivery, prepaid first class registered or certified mail, or by e‑mail to the addresses identified:

Customer: Address from which Swift sends the Customer’s invoices, and which the Customer shall address mail to Swift SMS Gateway®;
Attention – Accounting
Swift SMS Gateway Inc.
65 Cedar Pointe Drive, Suite 225
Barrie, ON L4N 9R3

Severability: The invalidity, illegality, or unenforceability of any one or more provisions of this agreement shall not affect, or impair any other provisions of this agreement.

Counterparts: This agreement may be signed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute but one and the same instrument.

Time: Time shall be of the essence in this agreement.