Page Source for SMSTermsConditions
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=head1 SMS Terms and Conditions
=head2 CONTENT DELIVERY SERVICES
=head3 1. SMS and Content Delivery Service.
a) Diamondcard Mobile Messaging Gateway Platform. Diamondcard agrees to
use commercially reasonable efforts to deliver Content provided by the
CUSTOMER to Carriers (for delivery to Subscribers) by means of the
Diamondcard Mobile Messaging Gateway Platform as described in this
Agreement. Diamondcard is responsible for obtaining and maintaining at
its sole cost and expense Diamondcard Mobile Messaging Gateway, and the
CUSTOMER shall not have any liability for the Diamondcard Mobile
Messaging Gateway Platform.
b) Compliance with Laws, Regulations and Carrier Guidelines. Either
Party shall comply with all applicable laws, rules, regulations,
directives, statements, codes of practice, and MMA Guidelines and
applicable Carrier guidelines with respect to the Delivery Services,
text messaging in general and otherwise in connection with performing
its obligations under this Agreement.
c) Content Format. All messages must contain only characters within the
standard GSM character set.
d) Content Delivery Limitations. The Diamondcard Mobile Messaging
Gateway Platform forwards Content delivered by the CUSTOMER to Carriers
for forwarding to Subscribers of the Carrier. However, Diamondcard is
not obligated ensure the delivery of Content by Carriers to
Subscribers, and the CUSTOMER agrees that the Diamondcard bears no
liability to the CUSTOMER or any Third Parties in the event a Carrier
does not forward Content to a Subscriber. Upon request, Diamondcard
will provide its standard reports to the CUSTOMER indicating whether
Content has been delivered to Subscribers.
=head3 2. Limitations on Content.
2.1 Blacklisted Numbers. The CUSTOMER acknowledges that some or all
Carriers have implemented a "blacklist" that contains the mobile phone
numbers for Subscribers that do not want to receive text messages. If
and when Carriers provide this blacklist to Diamondcard, Diamondcard
will provide the blacklist to the CUSTOMER, in which case the CUSTOMER
will not send any Content to any number on the blacklist.
2.2 Content Disclaimer. The CUSTOMER agrees that Diamondcard and/or the
Carriers, in their sole discretion, may reject sending all or part of
any Content to Carriers. Diamondcard will notify the CUSTOMER in
writing within five (5) business days if Content is being rejected by
Diamondcard and the reasons for the rejection. The CUSTOMER agrees that
Diamondcard will not be liable for rejection of any Content. The
CUSTOMER is solely responsible for ensuring that the Content it
supplies is accurate, complete and correct, and shall be solely
responsible for all claims or liability arising from the distribution
and publication of Content. Diamondcard shall have no obligation to
read, proofread or correct any Content supplied by the CUSTOMER, nor
shall have any responsibility for the accuracy, completeness or
correctness of any Content supplied by the CUSTOMER, nor shall it have
any obligation to read any Content to determine whether it contains
Confidential Information.
2.3 Filtering. Diamondcard reserves the right to filter or have
filtered Content without the prior written permission of the CUSTOMER,
without assuming any obligation to filter such Content, to ensure
compliance with this Agreement, Diamondcard agreements with Third
Parties and applicable laws and regulations.
2.4 Third Party Consents for Content. The CUSTOMER agrees not to send
Content that requires a Third Party consent unless it has obtained that
consent in writing. Diamondcard may delay or suspend the delivery of
any Content until the CUSTOMER has provided Diamondcard with evidence,
reasonably satisfactory to Diamondcard, that the CUSTOMER is authorized
to send the Content.
2.5 Suspension. Diamondcard may, without terminating this Agreement and
without any liability to the CUSTOMER or any Third Party, immediately
suspend part or all of the Delivery Services or the link between the
Diamondcard Mobile Messaging Gateway Platform and the CUSTOMER System
due to any of the conditions set forth below. Diamondcard will
immediately notify the CUSTOMER and if such suspension is a direct
result of any action by the CUSTOMER, the CUSTOMER will take reasonable
steps to fix such problems. The reasons for possible suspension include
but are not limited to:
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=item i) Diamondcard's reasonable and evidenced belief that it is
obligated to comply with an order, instruction or request of any court,
administrative tribunal, governmental or regulatory body;
=item ii) Diamondcard's reasonable and evidenced belief that the
Content and/or the use of the Delivery Services or any part thereof is
in violating the law, the Carrier Standards, the MMA Guidelines or the
terms of this Agreement;
=item iii) Unauthorized or fraudulent use of the Delivery Services, or
if the CUSTOMER's use of the Delivery Services is causing or may cause
damage to the Diamondcard Mobile Messaging Gateway Platform or to a
Carrier's system; or
=item iiii) Any breach by the CUSTOMER of its obligations to
Diamondcard.
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=head3 3. Subscriber Opt-in/Opt-out Mechanism.
CUSTOMER agrees to comply with, and be solely responsible for
compliance with, all "opt-in" and "opt-out" requirements for receiving
messaging (including Content) under all applicable laws, Carrier
Standards and MMA Guidelines. CUSTOMER shall provide a short code
response, website, and customer care email in which Subscribers can
indicate to CUSTOMER whether they wish to receive or cease receiving
Content. For example, a response of "stop" to a text message would mean
that the subscriber has "opted out" and should no longer receive text
messages from the CUSTOMER. The CUSTOMER shall immediately comply with
any Subscriber request to cease receiving Content. The CUSTOMER shall
provide contact information (at a minimum an email address) for the
CUSTOMER's customer service at the same time and in a noticeable
location (i.e., on the same web page or in the same SMS) as Subscribers
register for the CUSTOMER's Delivery Services. The CUSTOMER must
include an obvious notice that "other charges may apply" at the same
time and location (i.e., on the same web page or in the same SMS) as
Subscribers register for the CUSTOMER's Delivery Services.
=head3 4. Representations and Warranties of CUSTOMER.
CUSTOMER represents to Diamondcard that the Content (a) will not
contain any material that is obscene, profane, libelous or defamatory;
(b) will not violate or infringe any copyright, patent, trademark or
trade secret or right of privacy or publicity or any other personal or
proprietary right of Diamondcard or any Third Parties; (c) will comply
with the law, Content Standards and MMA Guidelines; and (d) at the time
of delivery to Diamondcard, will not contain any viruses, worms, trap
doors, back doors, timers, clocks, counter or other limiting routines,
instructions or designs. CUSTOMER further represents and warrants that
it will not use the Delivery Services, or allow any Third Parties to
use the Delivery Services, in violation of the law, Content Standards
or MMA Guidelines to engage in any spamming, mail-bombing, spoofing or
any fraudulent, illegal, unauthorized or improper use.
=head3 5. Indemnification under CUSTOMER Agreements.
When CUSTOMER negotiates agreements with its customers where the
Delivery Services may be used, CUSTOMER will use commercially
reasonable efforts to include in CUSTOMER's customer agreements
indemnification rights against such customers for any claims, suits,
actions or proceedings which would constitute Claims under this
Agreement. Upon written request by Diamondcard and subject to
CUSTOMER's confidentiality obligations with respect to its customers,
CUSTOMER will notify Diamondcard of the extent to which it has obtained
such indemnification rights against CUSTOMER's customers. CUSTOMER's
compliance with this Section does not relieve it of its indemnification
obligations under this Agreement.
=head2 CARRIER MANDATED CONTENT STANDARDS
Carriers prohibit the sending of certain types of Content over their
systems including, without limitation, the types listed below. Carriers
also reserve the right to amend their list of prohibited Content at any
time. Accordingly, CUSTOMER may not submit Content to the Diamondcard
Mobile Messaging Gateway Platform of any type listed below or of any
type otherwise prohibited by the Carriers. Diamondcard reserves the
right, in its sole discretion, to modify the list upon written notice
to CUSTOMER, including as required by any Carrier.
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=item * Unlawful, obscene, profane, threatening, libelous, slanderous,
defamatory or otherwise objectionable.
=item * Facilitates an illegal activity.
=item * Sexually explicit content or language.
=item * False, misleading or likely to mislead or deceive (including,
without limitation, information relating to the source or the author of
the message).
=item * Violates any intellectual property rights or any other rights
of any person or entity.
=item * Invades any person's privacy.
=item * Unlawfully promotes or incites hatred (including, without
limitation, any transmissions constituting or encouraging conduct that
would constitute a criminal offense, give rise to civil liability, or
otherwise violate any applicable law).
=item * Contains any spamming or flooding element or any advertising,
marketing or promotional materials or information, solicitations, chain
letters, pyramid schemes, investment opportunities or schemes or other
unsolicited messages, contents or information except with the prior
consent of Diamondcard, Carrier(s) and the Subscribers.
=item * Alcoholic beverage-related (beer, wine, liquor, etc.).
=item * Tobacco-related (cigarettes, cigars, pipes, chewing tobacco,
etc.).
=item * Guns/weapons-related (firearms, bullets, etc.).
=item * Illegal drugs-related (marijuana, cocaine, etc.).
=item * Pornographic-related (adult themes, sexual content, etc.).
=item * Crime-related (organized crime, notorious characters, etc.).
=item * Violence-related (certain games, etc.).
=item * Death-related (funeral homes, mortuaries, etc.).
=item * Gambling-related (casinos, lotteries, etc.).
=item * Carrier competitor-related (e.g., providers of
telecommunication services, providers of comparison shopping for
telecommunications services, etc.).
=item * Involves a copy or parody of current or past Carrier products
or services.
=item * Involves an implied affiliation, association or endorsement by,
or favored status with, any Carrier.
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