Terms of Service
Last Updated: 28th April, 2021
SMSQ enables its users (“they”, “their”, “you” or “your”), via its website (https://www.smsq.com.bd, https://services.smsq.com.bd) (the “Website”), its API, its services or other means, to build Voice and Messaging Applications, using their existing web development skills (collectively, the “SMSQ”). The SMSQ is owned and operated by Q Technologies Limited., a limited liable private company (“its”, “SMSQ”, “we” or “us”).
Your use of the Website and the SMSQ (the “Services”) is subject to the terms and conditions set forth in these Terms of Service (the “Terms of Service”).
If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
As a customer, you agree to incorporate SMSQ’s policies into your own solutions and ensure that your customers adhere to our policies. If you are accepting these terms of service on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these Terms of Service; (ii) you have read and understand these Terms of Service; and (iii) you agree, on behalf of the party that you represent, to these terms of Service.
Services Changes. Our Services may change over time. You are responsible for keeping updated on our published changes. Unless explicitly stated otherwise, any new features provided by SMSQ that augment or enhance the SMSQ shall be subject to these Terms of Service.
Intellectual Property. You acknowledge that all materials at the Website and the SMSQ, including the Website’s and the SMSQ’s designs, trademarks, service marks, logos (the “Marks”), graphics, text, sounds, pictures, and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of SMSQ and/or its licensors, and are subject to and protected by applicable intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners. SMSQ authorizes you to view and download the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Except as expressly authorized by the Terms of Service, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of SMSQ. SMSQ Marks contained or described at our Website and the SMSQ are the sole property of SMSQ and may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of SMSQ. SMSQ reserves the right to enforce its intellectual property rights to the fullest extent of the law.
You may not support, nor allow any third party to copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Website or the SMSQ for any purpose whatsoever.
Authorized User of SMSQ Services. You may use our Services to develop your software applications or website (an “App”) that interfaces with the SMSQ, and allow access to the SMSQ through interface with and authorized use of your App, subject to adherence with these Terms of Service. You hereby acknowledge that SMSQ may change, deprecate or republish the SMSQ (including any APIs), or feature of the SMSQ from time to time, and that it is your responsibility to ensure that calls or requests you make to or via the SMSQ are compatible with then-current SMSQ. We will attempt to inform you of any material changes with reasonable notice so that you can adjust your App, but we are under no obligation to do so.
You and any Apps that you may build, distribute, or otherwise create may make network calls or requests to the SMSQ, or may receive phone calls via the SMSQ, at any time that the SMSQ is available provided that those requests do not violate these Terms of Service.
You may use the SMSQ to execute Apps owned or lawfully obtained by you, and you are solely responsible for such Apps, including any data, text, images or content contained therein. You are responsible for all traffic originating from your Apps or using your account credentials to the SMSQ. Therefore, you should protect your authentication keys and security credentials. Any action taken with your credentials are deemed to be actions taken by you, with all consequences including payments, service termination, civil and criminal penalties.
For the avoidance of doubt, your use of the Website and the SMSQ is solely and exclusively under the limited license granted herein and you will not obtain any ownership interest therein through use of our Website, these Terms of Service or otherwise. All Marks, including domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect of the SMSQ remain the property of SMSQ or its affiliates or licensors.
Term. The Services term (“Term”) will commence your acceptance of these Terms of Service and will remain in effect until terminated by you or SMSQ. Either party may terminate these Terms of Service and use any or all Services for any reason with immediate effect. We may suspend your right and license to use any or all Services in its entirety for any reason or for no reason, at our discretion by providing seven (7) days advance notice. If SMSQ determines that providing advance notice would negatively impact SMSQ’s ability to provide Services, SMSQ may suspend your right and license to use any or all Services or terminate these Terms of Service without notice. If you have entered into custom agreement(s), contract(s) or order form(s) with SMSQ, then: (a) your termination rights are as per the said custom agreement(s), contract(s) or order form(s); and (b) SMSQ may terminate the custom agreement(s), contract(s) or order form(s) by providing a notice of thirty (30) days prior to the end of the then effective term.
SMSQ may suspend your right and license to use the Service or terminate these Terms of Service for cause effective as set forth below:
Immediately upon our notice to you if (i) you violate any provision of these Terms of Service or we have reason to believe that you have violated these Terms of Service, (ii) there is an unusual spike or increase in your use of the Services for which there is reason to believe such traffic or activity is fraudulent, abusive, harmful, threatening, defamatory, offensive and/or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) you become the subject of a voluntary or involuntary bankruptcy or similar proceeding, or make an assignment for the benefit of creditors; and immediately and without notice if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism; or (v) if the balance of the account falls below $0.00, the account will be suspended. If the account remains suspended for more than 30 days, all phone numbers associated with the account will be unrented. Unrented phone numbers will not be recoverable.
Upon our suspension of your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by you; (ii) you remain liable for all fees, charges and any other obligations you have incurred for usage/activity through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the Services shall be terminated during the period of the suspension.
Upon termination of these Terms of Service for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) you remain liable for all penalties, charges, fines that may have been incurred by SMSQ due to activity from your account even if such charges are incurred subsequent to your account termination (iii) all of your rights under these Terms of Service shall immediately terminate; and (iv) SMSQ reserves the right to charge your card on file for any outstanding balance as well as any penalties, fines, charges due on your SMSQ account.
Notwithstanding such termination or suspension, you will continue to be subject to the “Intellectual Property”, “Fees”, “Content”, “Representations and Warranties”, “Disclaimers and Limitations of Liability”, “Indemnification”, “Applicable Law and Jurisdiction”, and “Use of the SMSQ” sections of these Terms of Service.
Except as otherwise expressly stated in these Terms of Service, you agree that SMSQ shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Website or the SMSQ.
Downtime; Security. Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and we shall also be entitled, without any liability to you, to suspend access to or shut down all of the Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any of the Services; (b) in the event of a denial of service attack or other attack on the Services or other event that we determine, in our sole discretion, may create a risk to the Services, to you or to any of our other customers if the Services were not suspended; (c) in the event of a violation by you of the SMSQ Authorized Use Policy (https://www.smsq.com.bd/aup/); or (d) in the event that we determine that any of the Services is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”) including and not limited to attempting additional calls per second than allowed or spamming end users in a prohibited manner. SMSQ shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you notice of any Service Suspension and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so. We strive to keep information you provide to us secure, but cannot guarantee that we will be successful at doing so. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your content including all audio recordings associated with your account. Subject to any terms as documented in a written addendum hereto, SMSQ will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your content. Fees. Free Services are limited to one per person, and if we find that you have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations. Free Services come with the amount of services set forth here. We may provide notice to you of reaching 60% and 80% of the amount of services offered under our free plan, but may shut off your account without notice upon reaching the maximum amount of services under the free plan
To the extent the Services are made available for a fee, you agree to pay all applicable fees. Our current fee schedule for our priced plans are set forth here: https://www.smsq.com.bd/pricing. You agree to pay any carrier costs, such as fees for porting your existing telephone numbers into or out of the Services. SMSQ reserves the right to increase or add new fees to any of its Services without advance notice. Your continued use of the Services after a price change becomes effective constitutes your agreement to pay the changed amount. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you. You are responsible for any charges imposed on SMSQ by a carrier related to government fees for telecommunications, including but not limited to, Universal Service Fund fees, if applicable. You are responsible for any charges to be imposed due to any penalties, charges, fines that SMSQ may have been charged by a carrier or any other government/regulatory agencies.
We may specify the manner in which you will pay any fees, any penalties or charges, fines, that SMSQ may have been charged by a carrier or any other government/regulatory agencies and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All payments must be made in advance, unless otherwise agreed vide a written agreement signed by authorized representatives of the parties. Where payments need to be made in arrears, an invoice submitted by SMSQ shall be delivered by electronic means you at your billing address. All undisputed amounts must be paid within seven (7) days of the date of the invoice (“Due Date”). In the event you fail to pay any invoice or amounts due by the Due Date, SMSQ shall be entitled to charge and receive an interest of 1.5% per month, or the maximum amount allowable by applicable Law, whichever is higher, as a late payment fee. SMSQ reserves the right to suspend the Services if the outstanding invoices remain unpaid despite the non-payment notice, until you pay the undisputed fees due along with all/any late payment fees and make your account current. For avoidance of doubt, SMSQ may in a separate invoice make backdated claims for amounts outstanding fees, any penalties or charges, fines from a previous billing period which were not previously invoiced. The backdated claims can be made within nine (9) months of the date that the Services were rendered and/or penalties or charges, fines were charged. All amounts payable by you under these Terms of Service will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
You may recharge your SMSQ account by way of wire transfer. You understand and agree that if any such recharge is done through wire transfer, then your SMSQ Account will be recharged to the extent of the amount credited to our account, less any applicable charges, within three (3) working days from the date of transfer. Your SMSQ account will stand recharged only once the funds so transferred are received in our account. You will be responsible for taking into account any applicable bank charges whilst undertaking the wire transfer. You hereby represent and warrant that in case of any wire transfer, you have complied with all applicable laws, including without limitation, any foreign exchange laws. You agree to take into account such processing time and ensure that you have sufficient credit to continue to use the services till such time your account is recharged.
Voice calls while using SMSQ’s services are subject to carrier regulations within the region of use and the region that the call is made and or received. When using the SMSQ platform, the following conditions and surcharges will apply:
The Abandoned calls during any applicable calendar month should be less than 20%. If more than 20% of total call attempts are Abandoned Calls during any applicable calendar month, SMSQ reserves the right to charge, and Customer will pay, the Abandoned Call Surcharge with respect to those Abandoned Calls in excess of such threshold. The percentage of Abandoned Calls is determined by dividing the total number of Abandoned Calls by the total number of calls. Abandoned calls are defined as calls initiated by SMSQ, which are of zero (0) seconds in duration, where the end user has not answered, or has rejected/missed the calls. Abandon Call Surcharge – $0.02 per call
The Average Call Duration (ACD) during any applicable calendar month should be greater than Thirty five (35) seconds. If the Average Call Duration during any applicable calendar month is less than thirty five (35) seconds, SMSQ reserves the right to charge, and Customer will pay, an ACD Surcharge equal to ‘The number of minutes Customer would have used if the Average Call Duration would have equaled thirty five (35) seconds with respect to the number of calls actually completed”, minus “The number of minutes Customer actually used with respect to the calls actually completed”, multiplied by “The ACD Surcharge”. ACD Surcharge – $0.02 per minute.
Short Duration Calls during any calendar month should be less than 10%. If, during any calendar month, 10% or more of Customer’s completed calls are Short Duration Calls, SMSQ reserves the right to charge, and Customer will pay, a surcharge per Short Duration Call. Short Duration calls are defined as calls initiated by SMSQ, which are less than 6 seconds in duration, where the end user has answered the calls. Short Call Duration Surcharge – $0.015 Per call
Incomplete calls to Incoming Toll Free Numbers during any calendar month should be less than 5%. If more than 5% of total call attempts are Incomplete Toll Free Calls during any calendar month, SMSQ reserves the right to charge, and Customer will pay, the Incomplete calls to Incoming Toll Free Call Surcharge with respect to those incomplete Calls in excess of such threshold. The percentage of Incomplete calls to Incoming Toll Free Calls is determined by dividing the total number of Incomplete Toll Free Calls by the total number of calls. Incomplete calls to Incoming Toll Free Numbers are defined as calls received by SMSQ on a specific Toll Free number, which are of zero (0) seconds in duration, where SMSQ Customer who owns/rented the Toll Free number has not answered, or has rejected the calls. Incomplete calls to Incoming Toll Free Call Surcharge – $0.10 Per call.
Any SMSQ account usage that occurred due to fraudulent attack(s) on your website or application will be your own responsibility. SMSQ has no liability or responsibility towards any such attacks or traffic. Further, all costs related to usage of services in such a scenario will need to be paid for in full by you. SMSQ will provide reasonable assistance that you may require for any legal verification, that is within its responsibility and ability to do so. In such a scenario, this can affect the credit rating of your Company and any special privileges that SMSQ may be offering to your Company. Some of the SMSQ services will require a verified address prior to service activation. In the event of any information request from a law enforcement authority or the end Carrier, You will need to provide such information within a 24 hour period. You will be responsible to ensure that the end-user information is compliant with service restrictions applicable. SMSQ is not under contractual obligation to provide any subpoena or legal documentation while requesting for additional information.
Fee Disputes. If you have any dispute with regards to fees associated with your account, please contact us through our Support Center at https://www.smsq.com.bd/contact/support within 30 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
Third Party Sites. Links to third party websites are provided only as a convenience to you. If you use these links, you will leave the Website and potentially the SMSQ. SMSQ does not control or endorse any third party websites. You agree that the SMSQ Parties, as defined below, will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk. You are advised that other websites on the Internet, including third party websites linked from this Website or the SMSQ, might contain material or information: that some people may find offensive or inappropriate; that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. SMSQ expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website.
Use of SMSQ. You may be required to establish an account at this Website in order to take advantage of certain features of this Website or the SMSQ. If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Website or the SMSQ; and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate or outdated, or SMSQ has reasonable grounds to suspect that such information is false, inaccurate or outdated, SMSQ has the right to suspend or terminate your account and prohibit any and all current or future use of the Website and SMSQ (or any portion thereof) by you.
Upon using SMSQ services, you hereby grant us permission to use your trade names, trademarks, service marks, logos, domain names and the like, for the purpose of promoting and / or advertising your use of SMSQ services. In addition, SMSQ may request testimonials and create case studies, for the purpose of joint marketing and public relations efforts that will be published on our website and shared with current and potential customers.
Use of the Services is further conditioned upon adherence to SMSQ’s Acceptable Use Policy https://www.smsq.com.bd/aup/, which is hereby incorporated by reference. SMSQ reserves the right to suspend or otherwise terminate the Services upon any violation by you, your agents or your customers of the AUP.
Additional Information Regarding the Use of SMSQ SMS Short Code Service:
Cancellation of any Short Code services must be provided in writing at least 30 days prior to the Short Code rental renewal date.
All Short Code fees are non-refundable and non-transferable.
You further agree that you will not access the SMSQ by any means except through the interface provided by SMSQ for access to the SMSQ, and that you will follow all carrier guidelines. Creating or maintaining any link from another website to any page at the Website without the prior authorization of SMSQ is prohibited. Any permitted links to the SMSQ Website must comply with all applicable laws, rule and regulations.
Except as expressly provided herein, SMSQ makes no representation that Materials contained at the Website or products or services described or offered at the Website or the SMSQ are accurate, appropriate or available for use in jurisdictions outside the United States, or that these Terms of Service comply with the laws of any other country. Visitors who use the Website or the SMSQ and reside outside the United States do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access this Website or the SMSQ from any territory where its contents are illegal, and that you, and not the SMSQ Parties, are responsible for compliance with applicable local laws.
Content. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such content. You acknowledge that all Content accessed by you using the Website and/or the SMSQ is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You retain your rights to any Content you submit, post or display on or through the SMSQ.
For purposes of these Terms of Service, the term “Content” includes, without limitation, any location information, videos, audio clips, comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on the Website or through the SMSQ.
Confidentiality. “Confidential Information” means all information which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of each party (including, for the avoidance of doubt, any information in relation to the SMSQ Services) and which may be reasonably regarded as the confidential information of the disclosing party means any information or data, regardless of whether it is in tangible form. Each party undertakes that it will not use, copy or record the Confidential Information other than in exercising its rights and/or performing its obligations under the Terms of Service and will not divulge it to any person other than as expressly permitted in writing. Each party shall will keep confidential the Confidential Information, by adopting no less a level of protection than that which it applies to its own confidential information of a similar character but in no case less than a reasonable level of protection. The receiving party may disclose only so much of the Confidential Information to those of its employees, contractors or agents, investors and to its professional advisers who, in each case, reasonably need to know, or have access to, that Confidential Information for the proper performance of that person’s duties, provided that they are already under legally-binding confidentiality obligations materially equivalent to these terms, with the receiving party in respect of the Confidential Information disclosed. The receiving party may disclose Confidential Information to the extent that it is required to do so by a mandatory provision of law or regulation binding on it or by the order of a court, provided that (to the extent it is permitted to do so under any applicable law, regulation or order). Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (d) is independently developed by the receiving party without the use of or reference to the Confidential Information of the disclosing party. The receiving party agrees and acknowledges that the Confidential Information is of value to the disclosing party and that monetary damages alone may not be an adequate remedy for disclosure or use of it in breach of the terms of this clause and that injunctive or other equitable relief may be appropriate in addition to said monetary damages. The obligations under this clause will subsist for the term of the Terms of Service and shall continue for a period of three (3) years after termination of the Terms of Service.
Notwithstanding the generality of the preceding paragraph, you may be given access to SMSQ’s Confidential Information through the SMSQ or Website or through the use of the Services. You may not disclose SMSQ Confidential Information to any third party without the written consent of SMSQ. You must protect SMSQ Confidential Information with at least the same degree of care that is accorded to your confidential information, but in no event less than reasonable care. SMSQ Confidential Information includes, but is not limited to, all non-public information regarding SMSQ, its intellectual property or its customers, products/services, quantity and prices of products/services purchased, rate cards, discounts, sales and marketing plans, unannounced products, any information marked as “confidential” or “proprietary” or similarly marked, or any information that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure or any information that, if disclosed, might be competitively detrimental to SMSQ but excludes only such information that may be available to the public on the Website from time to time. You may have entered into separate nondisclosure agreements, pricing agreement(s) or order form(s) with SMSQ governing specific disclosures. To the extent the terms governing a specific disclosure are more restrictive than the terms in this paragraph, the more restrictive terms will control for the specific disclosure.
You represent and warrant: (i) that You are solely responsible for the development, operation, and maintenance of your App and Content, including without limitation, the accuracy, appropriateness and completeness of your Content; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your App and your Content; (iii) that neither your App nor Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither your App nor Content contains any harmful components; and (v) that SMSQ is not responsible to you for indemnification or directly to any of your customers or clients if you offer services (including your App(s)) based on the SMSQ. You also represent and warrant that you are responsible for any charges incurred by your use of the App, no matter whether the App acted in error or due to any fraudulent attack on your website or App.
Beta Services. From time to time, we may make available to You, Alpha or Beta Services, Products, Features, Functionality, SDKs or Documentation (“BETA SERVICES”).
BETA SERVICES may contain bugs, defects and may not meet any service levels or operate without any service downtime. BETA SERVICES are provided to you “AS IS”, and are not considered under the scope of this Agreement. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We may suspend or terminate your access to or use of any BETA SERVICES at any time and for any reason. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. You may choose to try such Beta Services in Your sole discretion.
You further understand and agree that you will have use of the telephone number(s) that are provided as part of the Services only until the end of the Term. You understand and agree that SMSQ is the customer of record for all telephone number(s) provided as part of the Services and, therefore, SMSQ has certain rights with respect to porting of the number(s) (“Porting” is causing or attempting to cause number(s) to be transferred, switched, or otherwise moved to any other service provider, telephone carrier, or any other person or entity). As the customer of record for the telephone number(s), SMSQ owns the telephone number(s) assigned to you. SMSQ reserves the right to refuse to port any telephone number(s) in its sole discretion. You will need to pay in full all outstanding balances on your SMSQ account(s) prior to SMSQ initiating any Porting requests.
If You “ported in” any telephone number(s) in connection with your use of Services, SMSQ assigned you one or more toll free telephone numbers, you are entitled to “port out” a telephone number under non-U.S. law, or SMSQ has agreed to port out any telephone number(s), you may “port out” such number(s) only if you satisfy the following requirements: (1) you provide written notice to SMSQ of your intent to “port out” such number(s) no later than 30 days after providing SMSQ notice of your intent to terminate these Terms of Service (the “Porting Notice Period”); (2) your new telephone carrier provides SMSQ’s telephone carrier a duly executed porting request prior to the expiration of the Porting Notice Period; (3) you have paid SMSQ for all Services provided to you prior to the date you provide SMSQ notice of your intent to terminate these Terms of Service; and (4) you have paid SMSQ any administrative fees associated with processing the port. You hereby authorize SMSQ to charge your account in the applicable amount for the administrative fees in subsection (4) above or to otherwise arrange to make this payment to SMSQ within the Porting Notice Period. Regardless of when the port out is complete, You will continue to be responsible to pay all applicable account fees with respect to the telephone numbers until you formally terminate these Terms of Service. If you fail to satisfy any of the foregoing requirements, SMSQ remains the customer of record over the number(s) and you are expressly prohibited from causing or attempting to cause such number(s) to be transferred to any other service provider, telephone carrier or any other person or entity. SMSQ also retains the right to reclaim the number(s) from you after the number(s) are ported out in contravention with these requirements and authorize SMSQ to charge your account or take any other measures to collect the costs associated with causing the number(s) to be returned to SMSQ. You understand and agree that even if you satisfy the requirements set forth in this section, technical or procedural difficulties or interruptions may occur when attempting to port out these numbers and such difficulties or interruptions may prevent your new carrier from porting the numbers. SMSQ is not responsible for such technical or procedural difficulties or interruptions. You understand and agree that following the termination of these Terms of Service for any reason, your number(s) may be reassigned to another customer. You agree that SMSQ will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and You hereby waive any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if SMSQ has been advised of the possibility of damages. You understand and agree that SMSQ may need to change the telephone number(s) assigned to you. You agree that SMSQ will not be liable for damages (including consequential or special damages) arising out of any such change in the telephone number(s) assigned to you and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if SMSQ has been advised of the possibility of damages.
You represent and warrant that you have read and understood these Terms of Service, and you agree to abide by their terms, where applicable, including as incorporated by reference herein. You further agree to abide by all applicable local, state, national, foreign and international laws and regulations and that you will be solely responsible for all acts or omissions that occur under Your account or password, including the content of your transmissions through the Service. Disclaimers and Limitations of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE WEBSITE AND THE SMSQ IS AT YOUR SOLE RISK. THE WEBSITE, THE SMSQ AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, SMSQ, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “SMSQ PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SMSQ PARTIES MAKE NO WARRANTY THAT: (I) THE WEBSITE OR SMSQ WILL MEET YOUR REQUIREMENTS; (II) THE WEBSITE AND SMSQ WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE WEBSITE OR SMSQ WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE WEBSITE OR SMSQ WILL BE CORRECTED.
THE SMSQ PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE WEBSITE OR SMSQ, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (V) FOR ANY OTHER MATTER RELATING TO THIS WEBSITE, THE SMSQ OR ANY THIRD PARTY WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SMSQ AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE WEBSITE AND THE SMSQ WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE SMSQ PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT, INFORMATION OR SERVICE PURCHASED BY YOU FROM SMSQ VIA THIS WEBSITE OR THE SMSQ WITHIN THE PREVIOUS SEVEN (7) DAYS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
THE WEBSITE AND THE SMSQ DOES NOT AND IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. “EMERGENCY SERVICES” SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS SUCH AS 911 OR E911 SERVICES. NEITHER SMSQ NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE SMSQ OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES. Indemnification. You agree to indemnify, defend and hold harmless the SMSQ Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of or conduct at the Website or SMSQ, any activity related to your account by you or any other person, any material that you submit to, post on or transmit through the Website or the SMSQ, your breach of these Terms of Service, your infringement or violation of any rights of another, violation of the AUP by you, your end-user customer or any third party agents or affiliates, or termination of your access to the Website or the SMSQ. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
Applicable Law and Jurisdiction. Your use of the Website and the SMSQ is governed by and will be enforced under the laws of the State of California without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California. You agree that printed copies of any and all agreements and/or notices in electronic form are admissible in any legal or regulatory proceedings. IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE AGREEMENT INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF OUR SERVICES, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
YOU AND SMSQ BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION. THERE’S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THESE TERMS OF SERVICE, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. YOU AND SMSQ ALSO BOTH AGREE THAT:
THE FEDERAL ARBITRATION ACT APPLIES TO THESE TERMS OF SERVICE. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THESE TERMS OF SERVICE OR FROM ANY SERVICES YOU RECEIVE FROM US WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
THESE TERMS OF SERVICE DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THESE TERMS OF SERVICE.
IF EITHER YOU OR SMSQ INTENDS TO SEEK ARBITRATION UNDER THESE TERMS OF SERVICE, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO SMSQ SHOULD BE SENT AS REQUIRED BY THESE TERMS OF SERVICE. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND SMSQ ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
Procedure for Notifying the Company of Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact our Copyright Agent at the address listed below and provide us with the following information:
An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
Identification of the copyrighted work claimed to have been infringed.
Information describing where the allegedly infringing material is located on the Website.
Your address, telephone number, and email address.
A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.
The aforementioned information can be submitted via our Support Center at https://www.smsq.com.bd/contact/support or mailed to our Copyright Agent at the following address:
Copyright Agent – Q Technologies Limited.
H-12, 11th Floor, Razzak Plaza
Ramna, Dhaka-1217, Bangladesh
Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the member responsible for posting said material. The posting of infringing copyrighted material may result in the termination of member privileges of said responsible member.
Miscellaneous. These Terms of Service constitute the entire and only Terms of Service between SMSQ and each user of the Website or the SMSQ with respect to the subject matter of these Terms of Service.
If any provision of these Terms of Service be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.
The failure of the SMSQ Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service.
No action arising out of this Terms of Service or your use of the SMSQ, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such case arose).
Neither party shall be liable for any delay or deficiency in the performance of its obligations if this delay is imputable to force majeure. Following events are considered to be force majeure: flood, earthquake or other natural disaster; war; strike, lockout or other labour dispute; civil or military disturbance, acts or orders of statutory, military or other governmental authority. A Party impacted by a force majeure event shall promptly notify the other party and use reasonable commercial efforts to mitigate the impact of the force majeure event and resume the performance of those obligations impacted as soon as reasonably practicable. No force majeure event shall excuse you from your obligation to make any payments owed to SMSQ for Services delivered before the force majeure event or that accrue due to your continued use of the Services after the occurrence of a force majeure event.
Customer Service. If you have any comments or questions regarding these Terms of Service, or wish to report any violation of these Terms of Service, you may reach us through our support page.