Sombra, Inc. (“SOMBRA”) is the operator of a proprietary software application (the “Application”) that enables the integration of SMS capabilities into web, mobile or desktop applications. A Customer who uses the application may send SMS messages to multiple recipients across the mobile telecommunications network of any public telecommunications carrier in the Philippines. This service is called the “Semaphore Service” and is made available by SOMBRA to persons or entities that subscribe to the same.
To subscribe to the Semaphore Services via the Semaphore website (semaphore.co) (the “Semaphore Website”) , Customer shall be required to submit certain information, including but not limited to (a) the purpose for which the Customer shall use the service, (b) the Customer’s contact information, (c) the Customer’s acceptance of these Terms and Conditions
Customer shall receive an e-mail notification of SOMBRA’s approval and activation of the Customer’s account. The Customer’s use of the Semaphore Services re-confirms his consent to all the terms and conditions of this Agreement.
By virtue of this agreement, SOMBRA shall supply the Customer a royalty-free license to access the Application and use the same with compatible multiple devices in order to send text messages to multiple recipients. For the avoidance of doubt, nothing herein shall constitute a sale or conveyance of the Application to the Customer or an exclusivity in the use thereof.
Use of the Semaphore Services is subject to the approval of SOMBRA and SOMBRA may disapprove or revoke a previous approval given if the Customer proposes a purpose for the Semaphore Services that SOMBRA deems unacceptable, or if the Customer has misrepresented the purpose for which the Semaphore Services will be used.
It shall be the Customer’s sole responsibility to procure compatible devices for the use of the Semaphore Service. Moreover, Customer shall be responsible for providing its own means and methods for data storage and SOMBRA shall not and shall not be obliged to make provisions for hosting the Customer’s data in its own servers. SOMBRA can provide message delivery reports in accordance with the rules of the National Telecommunications Commission, but shall not provide records of the content of any messages. Moreover, upon termination of this Agreement, Customer may download his transaction data only for a period of thirty (30) days from the termination of this agreement.
The use of the Semaphore Service is subject to the terms and conditions of this agreement in all respects. SOMBRA may modify these Terms and Conditions by posting the modifications on the Semaphore Website and notifying the Customers of such modifications at least seven (7) days before they take effect.
Use of the Semaphore Service is subject to the payment of the Fees stated in the Semaphore website. SOMBRA will confirm the prevailing rate of usage for the Customer as part of the registration process on the Semaphore Website. SOMBRA may refuse to activate the Customer’s Semaphore Service, or de-activate a previously activated access, without the payment of the Fees.
SOMBRA may refuse to proceed with the activation of the Semaphore Service if it proves to be impracticable, not commercially viable, or subject to extreme difficulty, or if it is enjoined by competent legal authority, or if SOMBRA believes, in its reasonable opinion, that the Application may be used for purposes that are illegal, contrary to this agreement, or contrary to law or public policy, or for businesses or activities that are detrimental to SOMBRA. Without limiting the foregoing in any way, the following are prohibited uses for the Semaphore Services:
SOMBRA has taken all commercially reasonable measures to provide secure 24x7 access to the Semaphore Services at reasonable speeds. However, SOMBRA does not warrant:
SOMBRA assumes no responsibility or liability for slow transmission or failure in access or transmission arising out of the functions, malfunctions, or failures of the public telecommunications networks of Globe, or the functions, malfunctions, or failures of the SMS service provided by Globe.
The Customer acknowledges that it is its sole obligation and responsibility to obtain the consent of all recipients of transmissions of the Semaphore Services.
The Customer shall comply with the relevant rules of the National Telecommunications Commission on text spam and commercial advertising via text messaging.
The Customer acknowledges that any data and information transmitted through the Semaphore Services may be subject to privacy and security risks which includes but are not limited to security breaches, eavesdropping, electronic trespassing, harassment, and fraud, which are potentially harmful and damaging to SOMBRA, and/or the Customer, and/or the recipients of the messages. The Customer shall take the appropriate measures necessary to avoid any potential privacy and security invading activities while availing of the Semaphore Services.
The rates and charges are posted on the Semaphore Website and are subject to adjustment at Semaphore’s sole discretion. Changes in rates shall be advised at least fifteen (15) days before their effective date.
Pre-paid Semaphore credits may be purchased on the website . Credits will automatically be deducted from Customer’s account according to the prevailing rate schedule. Messages can only be sent or received if there is a sufficient number of credits for the intended action of the Customer.
Credits will only be valid for 12 months from date of purchase, and are non-refundable. Credits may be topped up, and the expiration date of prior credits will be adjusted to reflect the expiration of the latest top-up. Expired credits will be automatically deducted from the Customer’s account on their expiration date. Customer may check the validity of his credits on the Semaphore Website. SOMBRA may, but does not guarantee that it will, provide prior notice of expiration.
SOMBRA will permanently disconnect an account if the Customer has failed to top-up an account with zero balance within thirty (30) days from the date the balance reached zero.
In addition to its responsibilities otherwise stated in this Agreement, the Customer shall be responsible for the following:
The Customer shall have full control and responsibility for ensuring the security and confidentiality of any internal firewalls, security systems, codes, passwords, IDs and the like used with the Application or required in order to enable the Semaphore Services. The Customer agrees and acknowledges that all transmission originating from the user ID or access code(s) assigned to the Customer shall be conclusively presumed to be the Customer’s or authorized by the Customer
The Customer shall be solely responsible for the repair and maintenance of any or all of its terminals and devices. It shall promptly report to SOMBRA any problem with the Semaphore Services and/or any circumstance or any acts of other persons which may or which the Customer has reason to believe that will cause damage to the Application or hinder or interrupt the provision of the Semaphore Services. Customer shall not attempt or undertake any modifications of its access to the Application. Or attempt to modify the Application itself, without the prior written consent of SOMBRA
The Customer shall permit SOMBRA’s staff and/or authorized agents at all reasonable times to enter its premises and every other place under its control in the event SOMBRA needs to inspect, test, examine or alter Customer’s front end access to the Application.
Anything in this Agreement notwithstanding, SOMBRA reserves the right to temporarily disconnect or limit Customer’s access to the Application, without prior notice to the Customer, in the event of –
Customer shall cooperate in any investigation into the causes for temporary disconnection. The Customer’s access to the application shall not be reconnected until Customer has addressed the cause of the temporary disconnection. SOMBRA shall be entitled to permanently disconnect the Customer’s Access to the Application, and apply all provisions of Article 6 (Termination) and impose any termination penalties or cancellation fees in the event the cause of the temporary disconnection is not addressed within thirty (30) days from the date of such Temporary Disconnection.
The Customer’s access to the Application and his availment of the Semaphore Services may be permanently disconnected and terminated for any violation of the terms and provisions of this Agreement. Permanent disconnection shall take place (a) where there has already been temporary disconnection, if the causes for such have not been remedied to the full satisfaction of SOMBRA within thirty (30) days from the occurrence of such cause; (b) for any other violation of this agreement, with thirty (30) days prior notice; (c) for lack of prepaid credits, if no prepaid credits have been reloaded to the Customer’s account within thirty (30) days from the date the account balance reached zero.
Termination is without prejudice to the right of SOMBRA to pursue other remedies against the Customer for specific violations of the terms and conditions of this Agreement.
Transactions shall be valid and binding on Customer and SOMBRA if authorized by their respective authorized representative. The person executing the web application for the service shall be presumed authorized unless SOMBRA receives written notice otherwise.
Customer shall indemnify SOMBRA for any liability, suit or damage which SOMBRA may be made liable for or suffer due to any transaction authorized by its authorized representative.
Failure of any of herein parties to insist in one or more instances in the strict performance of any of the covenants of this lease or to exercise any portion herein contained, shall thereafter not be construed as abandonment or cancellation or waiver of such covenant or option by the party who failed to enforce the strict performance of the provisions of this Agreement. No waiver by herein parties shall be deemed to have been made unless expressed in writing and signed by the party who waives its rights under this Agreement.
It is understood that all the terms agreed upon by the parties with the respect to this Agreement are embodied herein.
This Agreement shall be governed by the laws of the Philippines. The venue of any action arising out of or based on this Agreement shall be in the proper courts of Makati City. In the event that either party to this Agreement should file court action for violation of or failure to comply with the terms and conditions of this Agreement or for specific performance, the party at fault shall pay to the aggrieved party a sum up to twenty percent (20%) of the amount involved in the litigation for actual attorney’s fee and court cost but in no event to be less than TEN THOUSAND PESOS ONLY (P10,000.00).
Neither party shall use the other party’s name, copyrights, trademarks, service mark, trade names or logo in any manner whatsoever without the other party’s prior written consent except that SOMBRA shall be allowed to use Customer as a reference client, use the Customer’s logo or identifying mark and the Site name in SOMBRA’s reference or promotional materials, without, however, giving a detailed description of the services being rendered for Customer unless the Customer consents to disclosure of the services being rendered for it.
Nothing herein shall be construed as creating an employer-employee relationship between the parties, it being expressly understood and acknowledged that the relationship of SOMBRA to Customer is that of an independent contractor. Neither shall anything herein be construed as creating an agreement of partnership between the parties. Either party shall hold the other free and harmless from any claim or suit for unpaid wages, salaries or benefits due its employees or laborers rendering to each party. In the event one party is made liable for such claims or suits, the other party shall reimburse the party held liable for all sums which it may be held liable, plus a reasonable amount as attorney’s fees and cost that the indemnified party may incur in the course of protecting itself or settling such claims or suit.
Neither party shall sub-contract, assign, transfer or otherwise dispose of its rights and/or obligations under this Agreement without the prior written consent of the other party, except that SOMBRA may sub-contract the rendition of certain segments or components necessary for the development, modification, maintenance and hosting of the Application and Application database.
Except as provided above, any purported sub-contract, assignment, transfer or disposition of the whole Agreement or any part thereof without such prior consent shall be void and of no effect. The other party shall not unreasonably withhold such consent in all instances that its consent is required.
Herein parties shall hold in complete confidence any and all information that the other party may receive from the other party about its business, operations, clients, methods, means and content of its work, systems, equipment, shareholders, investors, contracts, agreement(s), properties, the nature of documents/parcels delivered and received, the identity of the sender(s) and recipients of the delivered and received documents/parcels and other information similar to the foregoing, in the course of the performance of the work hereunder except as are specifically indicated by the other party as being for the release to the general public. Herein parties expressly understood and acknowledged herein that all information whether relevant to this Agreement or not, are considered confidential and therefore entitled to the protection of this paragraph. This Clause shall survive the termination of this Agreement.
Neither party can make any public releases or announcements concerning this Agreement, or the services without the prior written consent of the other party.
Customer acknowledges that its has read and understood the terms and conditions stated above and, by indicating its acceptance on the web application for the Semaphore Service, it confirms that he/she/it has voluntarily given its consent as indicated by person executing and delivering the web application.