TERMS AND CONDITIONS OF THE SEMAPHORE SERVICE
1. THE SERVICE
1.1 Kickstart Ventures, Inc. (“KVI”) is the owner of a proprietary software application (the
“Application”) that enables the integration of SMS capabilities into web, mobile or desktop
applications. A Customer who uses the application may send SMS messages to multiple
recipients across the mobile telecommunications network of any public telecommunications
carrier in the Philippines. This service is called the “Semaphore Service” and is made
available by KVI to persons or entities that subscribe to the same.
To subscribe to the Semaphore Services via the Semaphore website (semaphore.co) (the
“Semaphore Website”) , Customer shall be required to submit certain information, including
but not limited to (a) the purpose for which the Customer shall use the service, (b) the
Customer’s contact information, (c) the Customer’s acceptance of these Terms and
Conditions
Customer shall receive an e-mail notification of KVI’s approval and activation of the
Customer’s account. The Customer’s use of the Semaphore Services re-confirms his consent
to all the terms and conditions of this Agreement.
1.2 By virtue of this agreement, KVI shall supply the Customer a royalty-free license to access
the Application and use the same with compatible multiple devices in order to send text
messages to multiple recipients. For the avoidance of doubt, nothing herein shall constitute a
sale or conveyance of the Application to the Customer or an exclusivity in the use thereof.
1.3 Use of the Semaphore Services is subject to the approval of KVI and KVI may disapprove or
revoke a previous approval given if the Customer proposes a purpose for the Semaphore
Services that KVI deems unacceptable, or if the Customer has misrepresented the purpose
for which the Semaphore Services will be used.
1.4 It shall be the Customer’s sole responsibility to procure compatible devices for the use of the
Semaphore Service. Moreover, Customer shall be responsible for providing its own means
and methods for data storage and KVI shall not and shall not be obliged to make provisions
for hosting the Customer’s data in its own servers. KVI can provide message delivery reports
in accordance with the rules of the National Telecommunications Commission, but shall not
provide records of the content of any messages. Moreover, upon termination of this
Agreement, Customer may download his transaction data only for a period of thirty (30) days
from the termination of this agreement.
1.5 The use of the Semaphore Service is subject to the terms and conditions of this agreement in
all respects. KVI may modify these Terms and Conditions by posting the modifications on the
Semaphore Website and notifying the Customers of such modifications at least seven (7)
days before they take effect.
2. CONDITIONS OF ACCESS AND USE
2.1 Use of the Semaphore Service is subject to the payment of the Fees stated in the
Semaphore website. KVI will confirm the prevailing rate of usage for the Customer as part of
the registration process on the Semaphore Website. KVI may refuse to activate the
Customer’s Semaphore Service, or de-activate a previously activated access, without the
payment of the Fees.
2.2 KVI may refuse to proceed with the activation of the Semaphore Service if it proves to be
impracticable, not commercially viable, or subject to extreme difficulty, or if it is enjoined by
competent legal authority, or if KVI believes, in its reasonable opinion, that the Application
may be used for purposes that are illegal, contrary to this agreement, or contrary to law or
public policy, or for businesses or activities that are detrimental to KVI. Without limiting the
foregoing in any way, the following are prohibited uses for the Semaphore Services:
1. Political or Election Campaigns, Political Propaganda or the advocacy of any political
cause;
2. Pornographic or illicit material or activity of any type
3. Escort Services
4. Gambling activities, including but not limited to virtual casinos and sports betting; as well
as other electronic games of chance whether or not the same are or would be considered
gambling as defined by existing laws;
5. The promotion, sales, and delivery of Firearms, Ammunitions and explosives, dangerous
drugs, or restricted or prohibited medicines or medical aids;
6. Pyramid Selling, Multi-Level Marketing and Commissions
7. The sale of securities, as the same is defined under the Philippines’ Revised Securities
Act
8. Person-to-Person Messaging, Chat or acts that facilitate chat
9. Any activity, whether or not analogous to the foregoing, that is detrimental to KVI or
Globe.
2.3 KVI has taken all commercially reasonable measures to provide secure 24x7 access to the
Semaphore Services at reasonable speeds. However, KVI does not warrant –
(a) That access to the Application or that the Semaphore Services will be
uninterrupted;
(b) That the Application will accurately calculate any sums or differences, or
correctly perform any mathematical or logical functions;
(c) That the Application will accurately record, store and transmit all data;
(d) That the Application and Semaphore Services are secure from all forms of
viruses, denial of service attacks, hacking, spamming, or other disruptive
conduct
by
third
parties.
2.4 KVI assumes no responsibility or liability for slow transmission or failure in access or
transmission arising out of the functions, malfunctions, or failures of the public
telecommunications networks of Globe, or the functions, malfunctions, or failures of the SMS
service provided by Globe.
2.5 Third Party Consents
The Customer acknowledges that it is its sole obligation and responsibility to obtain the
consent of all recipients of transmissions of the Semaphore Services.
2.6 No Spam
The Customer shall comply with the relevant rules of the National Telecommunications
Commission on text spam and commercial advertising via text messaging.
2.7 Privacy Protection
The Customer acknowledges that any data and information transmitted through the
Semaphore Services may be subject to privacy and security risks which includes but are not
limited to security breaches, eavesdropping, electronic trespassing, harassment, and fraud,
which are potentially harmful and damaging to KVI, and/or the Customer, and/or the
recipients of the messages. The Customer shall take the appropriate measures necessary to
avoid any potential privacy and security invading activities while availing of the Semaphore
Services.
3. RATES and CHARGES
3.1 Rates and Charges
The rates and charges are posted on the Semaphore Website and are subject to
adjustment at Semaphore’s sole discretion. Changes in rates shall be advised at least
fifteen (15) days before their effective date.
Pre-paid Semaphore credits may be purchased on the website <link>. Credits will
automatically be deducted from Customer’s account according to the prevailing rate
schedule. Messages can only be sent or received if there is a sufficient number of credits
for the intended action of the Customer.
Credits will only be valid for 12 months from date of purchase, and are non-refundable.
Credits may be topped up, and the expiration date of prior credits will be adjusted to
reflect the expiration of the latest top-up. Expired credits will be automatically deducted
from the Customer’s account on their expiration date. Customer may check the validity of
his credits on the Semaphore Website. KVI may, but does not guarantee that it will,
provide prior notice of expiration.
KVI will permanently disconnect an account if the Customer has failed to top-up an
account with zero balance within thirty (30) days from the date the balance reached zero.
4. RESPONSIBILITIES OF THE CUSTOMER
In addition to its responsibilities otherwise stated in this Agreement, the Customer shall be
responsible for the following:
4.1 Use of Service
The Customer shall –
(a) use the Application in a proper manner. It shall not use the same for purposes that are
illegal, immoral, or contrary to public policy and public service, contrary to this
agreement, or in any manner detrimental to KVI. In particular, Customer shall not –
i.
re-configure the or attempt to reconfigure the Application nor tamper with
any of the modules or components thereof in a manner not permitted by
KVI.
ii.
install a copy of the application on a storage device such as a terminal or
a network server, used only to install or run the application on the
Customer’s
other
computers
over
an
internal
network.
iii.
resell
iv.
reverse
v.
abuse the public telecommunications network by using or resorting to
irregular messaging or data access patterns, denial of service attacks,
spamming, hacking introduction of viruses, or other forms of abuse that
tend
to
degrade
or
deny
the
Application’s
service.
vi.
engage in any other activity that may threaten the integrity of any
network system, nor use the Service in a manner that would compromise
security
or
tamper
with
user
accounts.
vii.
Any other content or activity analogous to the foregoing
the
application
engineer,
except
decompile,
with
or
the
prior
consent
disassemble
the
of
KVI.
Application.
(b) The Customer shall abide by the generally accepted ethical standards of conduct and
usage of data services by not sending or transmitting data or messages that contain
content matter that is/are –
i.
libelous, defamatory, invades privacy, stalks, is obscene, pornographic,
racist, abusive, harassing, threatening or offensive;
ii.
incites to war, rebellion, sedition, coup d’etat, or constitutes an
obstruction of justice or the commission of terrorism as such act is
defined under international law;
iii.
seeks to exploit or harm children by exposing them to inappropriate
content, asking minors for personally identifiable details, or otherwise;
iv.
infringes any intellectual property or other right of any entity or person,
including violating anyone’s copyrights or trademarks or their rights of
publicity;
v.
violates any law;
vi.
impersonates or misrepresents connection to any other entity or person
or otherwise manipulates headers or identifiers to disguise the origin of
the content;
vii.
advertises any commercial endeavor or otherwise engages in any
commercial activity except with the prior written consent of KVI;
viii.
includes programs which contain viruses, worms and/or ‘Trojan horses’
or any other computer code, files or programs designed to interrupt,
destroy or limit the functionality of any computer software or hardware or
telecommunications;
ix.
sends, creates or replies to so called “mailbombs” (i.e. sending large or.
multiple messages to a single recipient with malicious intent) or engages
in ;”spamming” (i.e., unsolicited messages for business or other
purposes) or undertakes any other activity which may adversely affect
the operation of the Service.
x.
Any other content similar to or analogous to the foregoing
(c ) KVI shall not be liable for any content of messages sent by the Customer
(d) Customer shall indemnify KVI for any and all damages that KVI may suffer, as well as any
third party claims for which KVI may be held liable, arising out of Customer’s violation of any of
the prohibitions stated in this section.
4.2
Customer Security
The Customer shall have full control and responsibility for ensuring the security and confidentiality
of any internal firewalls, security systems, codes, passwords, IDs and the like used with the
Application or required in order to enable the Semaphore Services. The Customer agrees and
acknowledges that all transmission originating from the user ID or access code(s) assigned to the
Customer shall be conclusively presumed to be the Customer’s or authorized by the Customer.
4.3
First-Line Maintenance
The Customer shall be solely responsible for the repair and maintenance of any or all of its
terminals
and
devices.
It
shall
promptly report to KVI any problem with the Semaphore Services and/or any circumstance or any
acts of other persons which may or which the Customer has reason to believe that will cause
damage to the Application or hinder or interrupt the provision of the Semaphore Services.
Customer shall not attempt or undertake any modifications of its access to the Application. Or
attempt to modify the Application itself, without the prior written consent of KVI.
4.4
KVI’s Access to Customer Premises
The Customer shall permit KVI’s staff and/or authorized agents at all reasonable times to enter its
premises and every other place under its control in the event KVI needs to inspect, test, examine
or alter Customer’s front end access to the Application.
5. TEMPORARY DISCONNECTION
5.1 Temporary Disconnection
Anything in this Agreement notwithstanding, KVI reserves the right to temporarily disconnect
or limit Customer’s access to the Application, without prior notice to the Customer, in the
event of –
i.
use of the service or any component thereof for an illegal or prohibited purpose;
ii.
detection of viruses, spam, or unusual data transmission passed through
Customer’s
access;
iii.
fraud of any kind, hacking, denial of service attacks, or attempts at any of the
foregoing;
iv.
connection by devices which are harmful, illegal or detrimental to KVI or to public
service;
v.
transmission of data or access behavior that is unusual, abnormal, harmful to or
interferes with KVI’s network, or which may threaten the integrity, security and
performance
of
the
Application
or
KVI’s
network;
vi.
if so required by law enforcement or orders of a competent court;
vii.
If required for the protection of the Semaphore Services, or of KVI, or of the
public
telecommunications
network;
viii.
events or circumstances analogous to the foregoing.
5.2 Reconnection / Permanent Disconnection
Customer shall cooperate in any investigation into the causes for temporary disconnection.
The Customer’s access to the application shall not be reconnected until Customer has
addressed the cause of the temporary disconnection. KVI shall be entitled to permanently
disconnect the Customer’s Access to the Application, and apply all provisions of Article 6
(Termination) and impose any termination penalties or cancellation fees in the event the
cause of the temporary disconnection is not addressed within thirty (30) days from the date of
such Temporary Disconnection.
6. TERMINATION
6.1 Grounds for Termination
The Customer’s access to the Application and his availment of the Semaphore Services may be
permanently disconnected and terminated for any violation of the terms and provisions of this
Agreement. Permanent disconnection shall take place (a) where there has already been
temporary disconnection, if the causes for such have not been remedied to the full satisfaction of
KVI within thirty (30) days from the occurrence of such cause; (b) for any other violation of this
agreement, with thirty (30) days prior notice; (c) for lack of prepaid credits, if no prepaid credits
have been reloaded to the Customer’s account within thirty (30) days from the date the account
balance reached zero.
6.2 No Waiver of Remedies
Termination is without prejudice to the right of KVI to pursue other remedies against the
Customer for specific violations of the terms and conditions of this Agreement.
7. AUTHORIZED REPRESENTATIVES, ASSIGNEES OF SERVICE, NOTICES
Transactions shall be valid and binding on Customer and KVI if authorized by their respective
authorized representative. The person executing the web application for the service shall be
presumed authorized unless KVI receives written notice otherwise.
Customer shall indemnify KVI for any liability, suit or damage which KVI may be made liable for or
suffer due to any transaction authorized by its authorized representative.
8. MISCELLANEOUS PROVISIONS
8.1 Non-waiver and Modifications
Failure of any of herein parties to insist in one or more instances in the strict performance of
any of the covenants of this lease or to exercise any portion herein contained, shall thereafter
not be construed as abandonment or cancellation or waiver of such covenant or option by the
party who failed to enforce the strict performance of the provisions of this Agreement. No
waiver by herein parties shall be deemed to have been made unless expressed in writing and
signed by the party who waives its rights under this Agreement.
8.2 Entire Agreement
It is understood that all the terms agreed upon by the parties with the respect to this
Agreement are embodied herein.
8.3 Governing Law; Venue of Suit; Costs of Suit
This Agreement shall be governed by the laws of the Philippines. The venue of any action
arising out of or based on this Agreement shall be in the proper courts of Makati City. In the
event that either party to this Agreement should file court action for violation of or failure to
comply with the terms and conditions of this Agreement or for specific performance, the party
at fault shall pay to the aggrieved party a sum up to twenty percent (20%) of the amount
involved in the litigation for actual attorney’s fee and court cost but in no event to be less than
TEN THOUSAND PESOS ONLY (P10,000.00).
8.4 Trademarks and other IP
Neither party shall use the other party’s name, copyrights, trademarks, service mark, trade
names or logo in any manner whatsoever without the other party’s prior written consent
except that KVI shall be allowed to use Customer as a reference client, use the Customer’s
logo or identifying mark and the Site name in KVI’s reference or promotional materials,
without, however, giving a detailed description of the services being rendered for Customer
unless the Customer consents to disclosure of the services being rendered for it.
8.5 No Employer-Employee Relationship
Nothing herein shall be construed as creating an employer-employee relationship between
the parties, it being expressly understood and acknowledged that the relationship of KVI to
Customer is that of an independent contractor. Neither shall anything herein be construed as
creating an agreement of partnership between the parties. Either party shall hold the other
free and harmless from any claim or suit for unpaid wages, salaries or benefits due its
employees or laborers rendering to each party. In the event one party is made liable for such
claims or suits, the other party shall reimburse the party held liable for all sums which it may
be held liable, plus a reasonable amount as attorney’s fees and cost that the indemnified
party may incur in the course of protecting itself or settling such claims or suit.
8.6 No Assignment
Neither party shall sub-contract, assign, transfer or otherwise dispose of its rights and/or
obligations under this Agreement without the prior written consent of the other party, except
that KVI may sub-contract the rendition of certain segments or components necessary for the
development, modification, maintenance and hosting of the Application and Application
database.
Except as provided above, any purported sub-contract, assignment, transfer or disposition of
the whole Agreement or any part thereof without such prior consent shall be void and of no
effect. The other party shall not unreasonably withhold such consent in all instances that its
consent is required.
8.7 CONFIDENTIAL INFORMATION
Herein parties shall hold in complete confidence any and all information that the other party
may receive from the other party about its business, operations, clients, methods, means and
content of its work, systems, equipment, shareholders, investors, contracts, agreement(s),
properties, the nature of documents/parcels delivered and received, the identity of the
sender(s) and recipients of the delivered and received documents/parcels and other
information similar to the foregoing, in the course of the performance of the work hereunder
except as are specifically indicated by the other party as being for the release to the general
public. Herein parties expressly understood and acknowledged herein that all information
whether relevant to this Agreement or not, are considered confidential and therefore entitled
to the protection of this paragraph. This Clause shall survive the termination of this
Agreement.
8.8 Press Releases
Neither party can make any public releases or announcements concerning this Agreement, or
the services without the prior written consent of the other party.
Customer acknowledges that its has read and understood the terms and conditions stated above
and, by indicating its acceptance on the web application for the Semaphore Service, it confirms
that he/she/it has voluntarily given its consent as indicated by person executing and delivering the
web application.