Orange Specific Terms for SMS Madagascar (The "SMS MG)
Service Provider: Orange Madagascar (“OMA" or "Orange”), registered on the Trade and Company Register of Antananarivo under number - 1997B00447, having its registered office at La Tour, Rue Ravoninahitriniarivo, Ankorondrano, BP7754, Antananarivo 101, Madgascar, represented by Michel DEGLAND, acting in the capacity of General Manager, duly empowered for the purpose of these presents ("OMA") Version number: 1.
Date: Feb 23th 2017
1 SMS MG Description (the "Service" or "SMS Madagascar")
SMS Madagascar allows any clients of Orange (the “Client(s)” or “You” including “Your”) to buy, with their airtime credit, bundles of SMS on the following web site: developer.orange.com (the « Site »). This bundle of SMS allows You to send SMS including the possibility to request acknowledgment of receipt thereof as more described in the Overview page (https://developer.orange.com/apis/sms-mg/ ), through an application (the “API Client”) to subscribers of any operators located in Madagascar (the“Subscribers”).
You have to be connected to the internet network and should be responsible for its internet access.
The collection of Subscribers’ phone number (also called “MSISDN”) shall be the sole responsibility of the Client notably regarding pre-existing contractual relationships and/or charitable activities.
To benefit of the Service, You firstly have to identify yourself in compliance with “Interdepartmental Order number 2471/2016
of February 1st, 2016 that provides Clients’ identification modalities to telecommunications services opened to the public in Madagascar.
SMS Madagascar is provided by Orange according to the pricing described in section 4.7 below. New pricing may be introduced by Orange at any time, in accordance with the provisions of section 7 of the Orange APIs General Terms
3 Contractual Documents
The Terms, as defined in the Orange API General Terms, consist of (i) such Orange API General Terms and (ii) these Orange API Specific Terms for SMS API MG including the Overview and Pricing pages as referenced herein. In case of any discrepancy between the Orange API General Terms and the Orange API Specific Terms for SMS Madagascar, the latter shall prevail.
4 Specific Conditions of SMS Madagascar
4.1. Service Availability.
Orange will use its best efforts to provide SMS Madagascar with reasonable care and skill. Orange will grant no guarantee or warranty with respect to SMS Madagascar. In addition, Orange informs You that SMS Madagascar may be subject to (i) cancelation of SMS Madagascar at any time for technical or operational reasons (in particular but not limited to maintenance
operation) or (ii) removal of SMS Madagascar for indefinite periods of time for any reasons or events that are not under the
control of Orange.
4.2. Grant of Rights to Use.
Orange retains all right, title and interest in and to Intellectual Property Rights related to SMS Madagascar and You are granted a
limited right to use the SMS Madagascar under section 3 of the Orange API General Terms.
4.3. Content of SMS MT (Mobile Terminated) (the “Content”).
The SMS You sent to Subscribers may include information with respect to You and/or Your activities, and/or Your products and services, and/or Your contractual relationships with Your Subscribers (for instance, statistics, telemarketing). Those data have been developed and stored by You.
4.4 Authorization of Subscribers:
Sending SMS to any individuals (including end-users, customers and subscribers) shall not be considered as a spam therefore You represent and warrant that the Subscribers have previously given their consent in compliance with any applicable law. Non-compliance with any applicable law with respect to the Subscribers’ consent shall be Your sole responsibility of the Client.
4.5. Transmission of SMS:
In order to send SMS, the Client shall first enter a private code provided by Orange into the API Client and then send SMS to Subscribers.
4.6. Reception of SMS.
The Subscriber is able to receive SMS, provided that Subscriber complies with the following:
a. he/she owns or holds a device compatible with SMS features;
b. his/her device is switched on and the memory card of the device is not full;
c. his/her device is located in an area that is covered by the network of its mobile operator.
4.7. Price and Validity of the bundles of SMS.
Prices, volumes of SMS and periods of validity of bundles of SMS are described on the pages of the Site dedicated to the SMS Madagascar. The Service is also limited to a maximum amount spent per MSISDN during a specific period of time. Detailed information is available on the Site pages dedicated to the SMS Madagascar (https://developer.orange.com/apis/sms-mg/pricing)
If some SMS are not consumed within the period of validity mentioned on the Site, such SMS are not cancelled but are only usable if the Client recharge with a new bundle of SMS. Therefore, the new SMS are added to the previous bundle of SMS with a new period of validity.
4.8. Confidentiality of the private(s) code(s):
You are solely responsible for the preservation and usage of the private(s) code(s) provided by OML. The Client undertakes to define and implement the appropriate and effective means in order to preserve confidentiality and his/her disconnection at the end of each session.
4.9. Usage and content of SMS.
You are solely responsible with respect to the content of all sent SMS
and notably You shall guarantee – with no liability cap whatsoever- Orange that You holds all rights as regards the content of the SMS. You warrant and represent that Orange shall not be held liable, directly or indirectly, in case of any claim or dispute with regards to the SMS content.
You shall comply with all applicable laws and regulations, in particular concerning the provisions on personal data, including the collection of all Subscribers required consents.
You shall be prohibited to organize any lottery, gambling, advertising on lottery that may violate applicable laws and regulations.
You agree not to make any of the following available to the public and Subscribers:
· Violent or pornographic message, message that by their nature would be likely to violate respect for the individual and human dignity, or the protection of children and adolescents;
· Messages encouraging the commission of crimes and/or misdemeanors or inciting the consumption of
· Message inciting discrimination, hate, or violence, religious, sectarian, political, union, or racist messages, or those violating good character, the public order, or likely to violate human dignity or the protection of minors;
· Messages likely to harm Orange. You may be held liable for messages or information made available to the
public and/or Subscribers at any given time, and in particular, messages, information, lists of classified advertisements, and any other information disseminated through hereof.
You shall only make a personal and private use of the acquired SMS. You shall communicate under Your own name, so that You are clearly identified to Your Subscribers, and You shall not make any reference to Orange and its Brand, as defined in section 5 below, in the SMS.
You will not send any SMS to Subscribers between ten(10) PM and six (06) AM, unless it is a Receiver’s demand. In addition, the Client cannot send more than three (03) SMS messages per day.
You warrant and represent that Orange shall not be liable, directly or indirectly, in case of a claim or dispute with Subscribers for any default affecting your API Client, your services or products and the Content and in particular regarding the accuracy and validity of the phone number (also called “MSISDN”) of the Subscribers.
You shall indemnify Orange Madagascar for all damages, costs and expenses (including fines, penalties, losses, costs,
damages, claims, liabilities, settlements and expenses, attorney’s fees) for any violation of these Terms and/or any violation of applicable laws and regulations.
Orange Madagascar shall only be responsible, through its SMS center (also called “SMS-C”), for the transmission of the SMS sent by the Client. Orange Madagascar does not warrant actual receipt of the SMS by Subscribers as there are many
technical reasons outside the control of Orange that may impede reception of SMS by Subscribers.
You acknowledge that the execution of the Service also depends on third parties, in particular other operators and/or internet providers. Orange shall not be liable, directly or indirectly, for any default regarding internet access and default of third parties.
Each Party shall be considered liable and must indemnify the other Party against all damages that such other Party may suffer resulting from the first Party’s failure to execute and/or the poor execution of any of its obligations set out in these Terms.
Orange shall in no event be held liable for indirect damages such as loss of a contract, market injury, loss of clients, any commercial disruption, loss of profit, or economic loss that may result from the execution of these Terms.
However, The aggregate liability of Orange arising under or in connection with these Terms for any cause whatsoever and regardless of the form of claim or dispute shall not exceed in the aggregate the total amount of fees paid to Orange by You for the purchase of bundles of SMS during the six (6)-month period prior to the date of any harmful event.
5 Orange Brands, Design Rules and Graphic Resources
The ORANGE brand and any trademarks, brands or logos owned by Orange (the “Brands”) are subject to exclusive rights and You are granted a limited right to use the Brands under section 13 of the Orange API General Terms. When Orange makes available, on Orange Developer website (www.developer.orange.com), (i) some rules with regard to, with no limitation, design, use of the Brands, (the
“Design Rules”) and (ii) some graphic resources (such as buttons, error messages, the Brands) (the “Graphic Resources”), You undertake to fully comply with such Design Rules and Graphic Resources.
Any non-compliance with section 13 of the Orange API General Terms, the Design Rules and/or the Graphic Resources may constitute a material breach of these Specific Terms. Therefore, Orange may either suspend these Specific Terms until You fully comply with the Design Rules and the Graphic Resources, or terminate these Specific Terms if You do not fully comply with the Design Rules and the Graphic Resources within a reasonable time.
6 Conditions of Withdrawal of SMS Madagascar
Notwithstanding section 9 of the Orange API General Terms, Orange will inform You of the Termination of SMS Madagascar
one (1)-month in advance of the date of the termination, without prejudice to any claim for damages.
7 Governing Law and Dispute Resolution
Terms shall be governed by and interpreted in accordance with the laws of Madagascar.