This Agreement contains a binding arbitration clause. Please read the agreement carefully before accepting its TERMS AND CONDITIONS.
Last updated: August 4, 2020
The terms contained in the Agreement and these Terms and Conditions beginning with a capital letter are defined and have the meaning as set out in this Article:
2.1 These Terms and Conditions apply to all requests, offers, relations, quotations and Agreements between Mito and the Client, unless the Parties have expressly agreed otherwise in writing.
2.2 The applicability of any general (purchasing) terms and conditions used by Client is hereby expressly excluded.
2.3 Reference to "writing" anywhere in this Agreement shall be considered all communication in either electronic or paper format.
2.4 Applicable Law applies to End User Services and will take precedence upon conflict with the provisions of the Agreement or these Terms and Conditions. Upon request, Mito may inform the Client concerning the contents and/or applicability of said Applicable Law. However, it is the Client's sole responsibility to familiarize itself with all Applicable Law and to procure independent legal advice in respect thereof and Mito will not provide warranties in this regard. If for any reason whatsoever the provisions of the Applicable Law shall be deemed not to apply to the relations between Mito and the Client, or be declared inapplicable, the provisions of the Agreement and these Terms and Conditions shall take precedence.
3.1 All offers made by Mito are without obligation and are non-binding unless expressly stated otherwise in writing. If not stated otherwise, an agreement with Mito shall not be concluded until Mito has expressly accepted or confirmed an order to that effect in writing.
3.2 Mito expressly reserves the right to amend its pricing and/or pricing model with regard to general price lists, brochures, information on websites and other information provided in the context of offers.
4.1 The currency indicated in the price list of the Agreement will be currency to be used by the Client to settle the invoice. If no currency was agreed on between the Parties the currency will be euro. All prices are exclusive of value added tax (VAT) and/or any other taxes, charges or levies imposed by any government authority.
4.2 The applicable prices and rates are listed on the website of Mito and/or described in the Agreement. Unless a fixed price has been expressly agreed, Mito reserves the right to change prices and rates at any time without notice. The Client shall be charged for all Traffic that is sent to, and received by the Platform of Mito via the connection of Client. The billing period is based on CE(S)T time zone.
4.3 If a fixed price has been expressly agreed in the Agreement for one or more destinations, Mito is only entitled to change the agreed fixed price(s) after written agreement by the Client.
4.4 Notwithstanding article 4.3, Mito is in every instance entitled to change its prices following changes to Applicable Law, from an increase in the purchase price of messages and/or from rates changes effected by Operators. Mito shall inform the Client in advance of such price increases as soon as reasonably possible.
4.5 The Client shall pay all invoices without suspension, set-off or deduction within fourteen (14) days of the invoice date, unless the Agreement explicitly contains different payment terms.
4.6 In the event that Client fails to pay Mito the amounts due within the agreed period, statutory commercial interest shall be applied and will fall due accordingly by the Client on the outstanding amount without any requirement from Mito to communicate a notice of default.
4.7 Mito is entitled to demand payment of a deposit. During the term of the Agreement the deposit may be adjusted after mutual consultation. Upon termination of the Agreement the deposit will be refunded to the Client after set-off of the deposit against any outstanding amounts then due by the Client to Mito. The deposit shall be transferred back to the client within two (2) whole calendar months following termination of the Agreement. Mito shall not be obligated to maintain deposits in segregated accounts or and neither will they accrue interest for the Client.
4.8 Client is responsible for payment of the applicable value added tax (VAT) and/or any other tax or levy on its End User Service. The Client shall indemnify Mito for and against all claims by tax authorities in this regard and shall indemnify Mito for all losses, penalties and costs arising thereof.
4.9 Where bank fees occur, Client shall bear the costs imposed by its own bank, any intermediate bank and the bank of Mito as indicated on the invoice when making payments under the Agreement. The net amount received by Mito shall correspond to the amount invoiced. In this regard, the Client remains liable to pay the shortfall of outstanding amounts due.
4.10 Notwithstanding article 4.3, Mito shall have the right to make adjustments to its prices (fixed or general) on an annual basis at the beginning of each subsequent calendar year to reflect the annual changes in the national Consumer Price Index (CPI).
5.1 Client will ensure a secure, continuously working connection at its own cost to the Platform of Mito.
5.2 Client shall ensure that access to the aforementioned connection and the account of Client is limited to authorized employees of Client and that log-in credentials are stored securely. It is not permitted to authorize use to other persons and/or third parties.
5.3 Client shall only use the Services for its intended and normal purpose and/or purposes as agreed and described in the Agreement. Any change to the Service is to be requested in writing.
5.4 Client is responsible for the content of Traffic sent by Client, the lawfulness of the Traffic and the identity of the relevant End User, including as to whether such End User has "opted in" to receive applicable Traffic, and guarantees that these comply with Applicable Law. The Client will maintain up to date records of end user consent or proof of lawful basis and provide these to Mito upon request. The Client will not send any unsolicited traffic, nor other unethical, illegal, punishable or otherwise fraudulent or illicit traffic or content.
5.5 Client shall cooperate with Mito and provide any information reasonably required for boarding and acceptance procedures of Operator(s). Client will provide Mito the full name of its company, its address, Chamber of Commerce or company registration number and VAT number (if applicable) and the name of its director(s) authorized to sign the Agreement. Changes to these details must be passed on to Mito in writing.
5.6 Client accepts that Mito may be obliged by Operators and/or competent authorities to provide the data of Client as described in the previous paragraph and the data of other parties that are being connected via Client. Client shall provide all such data requested by Mito within three (3) Working Days.
5.7 Client shall cooperate with any audit which investigates whether the Client is acting in accordance with Applicable Law.
6.1 Client warrants that the content and the promotion of the End User Service under no circumstances infringes the (intellectual property) rights of third parties or is in breach of Applicable Law.
6.2 Client shall indemnify, defend and hold harmless Mito and its affiliates against all liabilities, losses, damages, claims, penalties, fines and costs (including reasonable legal costs) resulting from or arising out of the failure by Client to comply with article 5 and/or Applicable Law. The indemnity includes, but is not limited to claims made by authorities, organizations and institutions that supervise compliance with the Applicable Law and the content of the Traffic, claims by third parties and also all claims made by Operators in connection with the failure by Client to comply with the Applicable Law.
6.3 Mito will not be responsible for any Service failures or faults which occur, or losses suffered by the Client, as a result of a breach by the Client of the provisions of this Agreement, including but not limited to the Client's obligations in Article 5.
7.1 If the Client acts contrary to an obligation under the Agreement, these Terms and Conditions, Applicable Law, Operator guidelines or the obligation to pay the amounts due to Mito within the agreed payment term, Mito is entitled to suspend provision of the Service without limitation to any other remedy available to Mito, including cancellation of this Agreement and/or a claim for specific performance and/or damages.
7.2 The Client remains liable for payment for the period that the provision of the Service is suspended in accordance with the provisions of this Article.
7.3 As soon as the reason for suspension in accordance with the provisions of this Article is removed by Client, Mito shall resume delivery of the Service unless Mito believes that the nature and/or frequency of Client's non-compliance is such that the provision of the Services should be cancelled permanently. If applicable, the activation costs which Mito incurs in this respect will be charged to the Client.
8.1 Client is responsible for the sending and/or delivery of Traffic up to the point of interconnection with the Platform of Mito. Client is responsible for appropriate encryption and security of its Traffic.
8.2 Mito makes no warranty or guarantee that any Traffic will be correctly delivered to or received by End Users after leaving the Platform of Mito. Mito provides no warranty or guarantee on behalf of any carrier and/or Operator regarding system capacity, throughput, response times or delivery. Mito cannot guarantee that Traffic will be accepted by any Operator or that any of the Operators will maintain connectivity with Mito.
9.1 Mito is entitled to set off the amounts the Client owes to Mito against the amounts Mito owes to the Client.
9.2 If Mito and the Client or any of their affiliates have concluded several Agreements, the amounts reciprocally due on the basis of these Agreements can be set off by Mito, regardless of the Agreement from which the payment obligations in question derive.
10.1 Parties shall keep confidential all information and data received from each other that is marked confidential or evidently confidential from its nature, unless a legal obligation exists to disclose such information and/or data. The non-disclosure obligation shall end one year after the Agreement ends.
10.2 The Client solely receives the user rights and authorities expressly granted under the Agreement, these Terms and Conditions or otherwise, and for the remainder shall not disclose, reproduce or make copies of any materials it receives on the basis of this Agreement from Mito, nor shall the Client process or modify these materials, without prejudice to further arrangements between Mito and the Client in this matter.
10.3 Data of the Client is collected by Mito at registration. This (personal) data is required for contract management and customer support, conducting credit checks and preventing fraud and criminal activities on the Mito Platform. The data can additionally be used for statistical research and to contact Client for marketing activities of Mito and its affiliates. For the purpose of carrying out credit checks and monitoring to prevent fraud and criminal activities, Mito may share data with third parties.
10.4 Mito processes traffic data (including personal data), for the following purposes: providing continuous information to Client through Mito Analytics, billing, financial administration, handling complaints and disputes, traffic control, providing information to emergency services, preventing fraud and criminal activities.
10.5 The processing of data mentioned in the previous articles 11.3 and 11.4 is necessary for the delivery and operation of the Services and associated invoicing, therefore Mito is considered to be a Controller for the aforementioned data. Mito will act according to Applicable Law associated with its status as Controller.
11.1 The Parties accept and respect each other's intellectual and other property rights. All intellectual property rights to any materials, developed by Mito for or made available to the Client on the basis of the Agreement, such as equipment, software, analyses, designs, documentation, reports and/or offers, and any preparatory material belonging thereto, shall solely be held by Mito and/or its licensors.
12.1 The Client recognizes that access to the internet, the GSM network and other communication media is subject to uncertainties, including but not limited to, in relation to availability of services, reliability of transmission, authorizations, authenticity and data security. There is no warranty that the Services are, or will be completely free of faults or defects. Mito shall not be liable if an interruption of the service was due to a fact beyond its control, such as, but not limited to, disturbance of radiotelephone and/or telecom transmissions outside the Platform of Mito. In the event of a fault or defect, Mito shall use its reasonable efforts to restore the Service in accordance with proper practices recognized in the electronic communications industry.
12.2 If Mito suffers a loss as a consequence of the Client acting contrary to an obligation under the Agreement, these Terms and Conditions or Applicable Law, the Client is obliged to compensate Mito for the resulting loss.
12.3 Neither Party will be liable under or in relation to this Agreement or arising out of the provision of the Service, to the maximum extent permitted by applicable law, even if advised of the possibility of such damages and whether in relation to tort, including negligence, breach of contract or otherwise, or any other liability for any of the following: (i) loss of profits, revenues or sales; (ii) loss of bargain; (iii) loss of opportunity; (iv) loss of use of any service or any computer equipment; (v) loss of time on the part of management or other staff; (vi) professional fees or expenses; (vii) business interruption, related to this agreement or the Services provided hereunder, (viii) loss of income by the Client because the Client did not set up correct rates for the Traffic, (ix) damage to or loss of data; (x) loss of goodwill or reputation, or (xi) any other indirect, special, incidental or consequential damages of any kind howsoever arising.
12.3 The limitations on liability specified in Article 13.3 and 13.4 shall cease to apply if and insofar as the loss is due to the willful intent or gross negligence of the liable party, or in case of damage to life, body and health.
12.4 Client can agree to purchase beta releases of Services (meaning Services under development and not final yet). Those services may have some irregularities that still need to be worked out. If the Client has explicitly accepted a beta release of a service, Mito can’t be held liable for any loss or damage caused by this service. Beta releases are provided “as is”, “as available” and without any warranties.
12.5 No right to compensation shall ever arise unless the Party in question reports the loss to the other Party in writing within ten (10) Working Days after it has arisen. The other Party then has ten (10) Working Days to remedy the loss, if possible.
13.1 Mito is not bound to meet any obligation under the Agreement if it is prevented from doing so as a consequence of force majeure. The term 'force majeure' is used in this context to include but is not limited to: government interventions, strikes, acts of terrorism or threat thereof, interruption of operations, energy disruptions, interruptions in telecommunications facilities of third parties, failure or late compliance by ancillary suppliers of Mito or other third parties engaged by Mito, as well as every other circumstance that Mito could not reasonably have avoided or prevented, which creates an obstacle to the normal performance of the Agreement.
13.2 If Mito is prevented from complying with its obligations due to force majeure, it shall make this known to the Client within ten (10) Working Days following the day on which the situation of force majeure arose.
14.1 The Agreement is entered into for the initial duration agreed between the Parties in the Agreement, failing which a period of one (1) year shall apply.
14.2 After the initial period the Agreement shall be renewed for the duration specified in the Agreement, failing which a period of one (1) year shall apply. After the initial period, the Parties may terminate the Agreement in writing by giving three (3) months' notice.
14.3 Mito may unilaterally terminate the Agreement or the provision of a Service prematurely if it considers that further execution of the Service cannot reasonably be expected on economic grounds. This is to be announced and substantiated in writing to Client.
14.4 Either Party may terminate the Agreement for cause, wholly or partially, by registered letter if the other Party imputably fails to comply with its obligations under the Agreement, and – unless compliance is permanently impossible – if, after sending the most detailed possible written notice of default while allowing a term of ten (10) Working Days to remedy the failure, the other party continues to fail to comply. The nature and/or extent of the shortcoming must justify this premature termination.
14.5 Either Party may terminate the Agreement for cause, wholly or partially and with immediate effect, by registered letter without need for notice of default: a. if the other Party – whether temporarily or not – is granted suspension of payments, or if a petition in the other Party's bankruptcy is filed, or if the other Party is declared bankrupt, or if a significant part of the other Party’s assets are seized, or the other Party’s business is liquidated or terminated other than for the purposes of restructuring or merging undertakings; b. if the situation of force majeure as referred to in Article 14 lasts longer than twenty (20) Working Days; c. if such termination is required by the authorities or because of changes to the terms and conditions of Operator(s).
14.6 If at the time of such termination as is referred to in Article 15.4 and 15.5 the Client has already received any performance in the execution of the Agreement, any amounts invoiced by Mito before the termination in connection with that received performance shall remain fully due and shall become immediately payable upon termination.
14.7 Provisions which by their nature are intended to survive termination of the Agreement shall continue to apply after the end of the Agreement. These provisions among other things form part of articles regarding warranties & indemnification (6), setting-of (9), confidentiality & client data (11), intellectual property rights (12), liability (13), force majeure (14) and applicable law & disputes (17) of these Terms and Conditions, as well as this and the previous paragraph in this Article.
15.1 This Agreement may not be assigned by either Party without the written consent of the other Party, such consent not to be unreasonably withheld; provided, however, either Party may assign this Agreement without prior notice or permission to any affiliate of such entity or to any entity acquiring all or substantially all of assets of such entity. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns.
15.2 Mito is entitled to engage affiliates and third parties for the performance of the Agreement.
16.1 All offers from and Agreements with Mito and their performance, as well as these Terms and Conditions are governed exclusively by Hungarian law.
16.2 Any disputes, including those which are only considered as such by one Party, resulting from or connected with the Agreement to which these Terms and Conditions apply or the Terms and Conditions themselves, will – notwithstanding the possibility of appeal – be submitted to the competent court in Budapest.
17.1 Without prejudice to article 17.3, amendments and additions to the Agreement or other notifications only apply if they are agreed in writing and have been signed by the persons authorized for this purpose on behalf of both Parties. Any amendment or addition will only apply to the relevant Agreement.
17.2 Contact persons may only represent and bind Parties insofar as this concerns the operational performance of the Agreement.
17.3 Mito is authorized to modify this Terms and Conditions at any time. Mito will inform Client of any modifications. If Client doesn’t object in writing within a month from the date of sending the modification notification, the modifications to the terms and conditions are deemed accepted by Client. If Client objects, the previous terms and conditions will still apply. However, Mito then alternatively has the right to cancel the Agreement with Client by giving one (1) month written notice.
17.4 Failure by one of the Parties to demand compliance with any obligation will not affect the right still to demand compliance, unless the Party in question has expressly agreed to the non-compliance in writing.
17.5 In the event that one or more of the conditions in this Agreement or these Terms and Conditions is or becomes null and void, or is set aside by a court, the remaining conditions will continue to apply in full. The Parties will consult each other as regards the invalid provisions in order to agree, if possible, on a similar provision that is permitted by law.
18.1 Social Media and Push Services provide the Client with the possibility to communicate, share information with, and regarding individual End Users using Social Media applications and/or in-app push messaging. It is the sole responsibility of the Client to ensure the communication, the information obtained and sent to the End User is sufficiently secured and protected, and that Client has obtained the required informed consent of each individual End User, or has a lawful basis, before Processing or transferring any information of said End User using social media channels or push messaging. Mito shall not have any responsibility in this regard and Mito shall provide (access to) Social Media and Push Services and all information on “as is” and “as available” basis.
18.2 The terms and conditions of the organizations providing the various social media platforms and services integrated in the Service are applicable to the use of the Service by Client. It is Clients responsibility to ensure compliance with said general terms and conditions and Applicable Law.
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