SMS Terms
These Fireberry SMS Additional Terms and Conditions ("Fireberry SMS Terms") apply to your access and use of Fireberry Text Messaging Service (as defined below) and form an integral part of the Fireberry Terms of Service ("Fireberry Terms"), which are incorporated herein by reference. These Fireberry SMS Terms and the Fireberry Terms govern the access to and use of Fireberry Text Messaging Service. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Fireberry Terms.
Please carefully read these Fireberry SMS Terms. Do not accept these Fireberry SMS Terms or use Fireberry Text Messaging Service if you disagree with any of these Fireberry SMS Terms.
In case you are representing your employer or another entity, you hereby affirm that: (a) you possess full legal authority to legally bind your employer or the applicable entity (as applicable) to these Fireberry SMS Terms; and (b) you have thoroughly read and understood these Fireberry SMS Terms, and you consent to them on behalf of your employer or the respective entity (as applicable), thereby legally binding your employer or said entity (as the case may be) to these Fireberry SMS Terms.
1. Definitions
1.1. "Text Messaging Service(s)" shall have the same meaning ascribed to it in Section 2.
1.2. "Recipient" means any natural person or legal entity designated by the Customer or User to receive Content through text messages or other communications transmitted via the Fireberry Text Messaging Service.
1.3. "Content" means any video, audio clip, music, data, text, photograph, software, script, graphic, message, or any other materials created, supplied, transmitted, or otherwise made available by the Customer and/or User to Recipients through the Fireberry Text Messaging Services.
1.4. "Site(s)" means www.fireberry.com, www.powerlink.co.il, and any related websites owned or operated by Fireberry that link to the Fireberry Terms.
2. Fireberry Text Messaging Services
Fireberry may integrate SMS text messaging functionalities and tools into its products and services (the “Text Messaging Service”), which shall be accessible through the Fireberry platform and/or the Fireberry mobile application for an additional fee as outlined in these Fireberry SMS Terms. The Text Messaging Service enables Fireberry Customers and their Authorized Users to transmit text messages, including, but not limited to, SMS marketing campaigns, to designated Recipients via their Fireberry Account.
3. Eligibility to Use the Fireberry Text Messaging Service
Fireberry Customers and their Authorized Users who are subscribed to a Fireberry Service supporting the Fireberry Text Messaging Service shall be eligible to use the Fireberry Text Messaging Service, contingent upon their compliance with the Fireberry Terms and these Fireberry SMS Terms.
4. Pricing and Payment
4.1. The fees for providing the Fireberry Text Messaging Service are detailed on the pricing page of the Fireberry Sites. You agree to remit promptly all applicable fees in full for using the Fireberry Text Messaging Service, which are exclusive of value-added tax (“VAT”). You shall be responsible for and indemnify Fireberry against all VAT, sales tax, or any other taxes levied in connection with or arising from the provision of the Fireberry Text Messaging Service. Fireberry reserves the right to change its prices at any time without notice, provided that any such changes shall be posted on the Sites. The applicable fee for the Fireberry Text Messaging Service shall be the fee in effect on the date Fireberry approves your Order Form for the Fireberry Text Messaging Service and shall be charged in addition to your regular Subscription Fees. You acknowledge and agree that such fee may differ from the fee quoted at the time of credit purchase. Accordingly, you are responsible for regularly reviewing the Sites for updates regarding pricing changes.
4.2. In the event of late payment or non-payment, regardless of whether the Text Messaging Service has already been rendered, Fireberry may, at its sole discretion: (i) deduct Service Credits from other Fireberry Accounts held by the Customer who has failed to remit payment for the Text Messaging Service; (ii) immediately suspend the Fireberry Account associated with the Text Messaging Service purchase; (iii) offset any of Customer's unfulfilled payment obligations against any payment method in any of Customer's Fireberry Accounts, irrespective of whether the payment taken from the Customer Account is the same Account bearing the unfulfilled payment obligation; and/or (iv) pursue immediate collection remedies, including recovery of any and all costs, fees, and expenses incurred in such efforts, including, but not limited to, legal fees associated with the collection of amounts due and payable under these Terms.
4.3. Pursuant to the terms set forth on the Site pricing page, the Text Messaging Service may be utilized under a credit plan, whereby Customers shall pay a specified sum and are granted the right to use the Text Messaging Service up to the number of credits purchased, in accordance with the terms outlined on the Site. Credits purchased but not utilized within twelve (12) months of the purchase date or upon termination of the Customer's Subscription Agreement, whichever occurs first, shall be deemed expired and unavailable for use.
4.4. Messages transmitted via the Text Messaging Service containing 71 characters or more shall be divided into multiple messages and billed as separate messages according to the following billing structure: messages containing 0 to 70 characters shall be billed as one (1) text message; messages containing 71 to 134 characters shall be billed as two (2) text messages; messages containing 135 to 201 characters shall be billed as three (3) text messages; messages containing 202 to 268 characters shall be billed as four (4) text messages; messages containing 269 to 335 characters shall be billed as five (5) text messages; messages containing 336 to 402 characters shall be billed as six (6) text messages; messages containing 403 to 469 characters shall be billed as seven (7) text messages; messages containing 470 to 536 characters shall be billed as eight (8) text messages; messages containing 537 to 603 characters shall be billed as nine (9) text messages; messages containing 604 to 670 characters shall be billed as ten (10) text messages; messages containing 671 to 737 characters shall be billed as eleven (11) text messages; messages containing 738 to 800 characters shall be billed as twelve (12) text messages, and so on.
5. No Refund
All credits for the Text Messaging Service purchased by the customer under these Fireberry SMS Terms are non-transferable, non-cancellable, and non-refundable.
6. Customer Responsibilities and Obligations
By using the Text Messaging Service, you acknowledge, affirm, and agree: (i) to fully pay all fees related to the Text Messaging Service in accordance with these Fireberry SMS Terms and the Fireberry Terms; (ii) to adhere to the Fireberry Terms and these Fireberry SMS Terms, and to ensure that all Authorized Users under your Fireberry Account adhere to these Fireberry SMS Terms and the Fireberry Terms; (iii) to be fully liable and responsible for all Content generated, transmitted, or otherwise made available by you or by your Authorized Users while using the Text Messaging Service; (iv) to adhere to and be fully responsible for all compliance obligations related to applicable laws, rules, and regulations including those relating to texting communications; (v) to use the Fireberry Text Messaging Service in compliance with Fireberry's Acceptable Use Policy; (vi) to obtain a prior written consent (opt-in) from Recipients agreeing to receive messages of the type you intend to transmit; (vii) to clearly identify yourself as the sender by providing, among other information, your contact details; (viii) to implement an opt-out mechanism that enables Recipients to withdraw their consent to receive messages from you and to remove themselves from your distribution list; (ix) to refrain from referencing Fireberry in any messages transmitted to Recipients; (x) not to utilize third-party distribution lists that have not been authorized for use by their respective lawful owners; (xi) to include in each message a description of the type of marketing content being transmitted to the Recipient and, where applicable, to clearly indicate that the message is an advertisement; and (xii) not to send messages or communications that: (a) are unlawful or contain unlawful content; (b) are unsolicited, including spam; (c) are sent to purchased, scraped, or rented lists; or (d) are directed to recipients who have requested, in any form, not to receive messages or communications from you
7. Disclaimer of Warranties
7.1. THE FIREBERRY TEXT MESSAGING SERVICE IS PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED. FIREBERRY, ITS VENDORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY, COMPLETENESS, NON-INFRINGEMENT, RELIABILITY, AVAILABILITY, OR PERFORMANCE. FIREBERRY, ITS VENDORS, AND SERVICE PROVIDERS MAKE NO WARRANTY OR REPRESENTATION THAT THE FIREBERRY TEXT MESSAGING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, BUG-FREE, NON-OFFENSIVE, NON-INFRINGING, NON-HARMFUL, ACCURATE, LAWFUL, OR SUITABLE FOR ANY PARTICULAR PURPOSE.
7.2. FIREBERRY, ITS VENDORS, AND SERVICE PROVIDERS DISCLAIM ANY LIABILITY FOR FAILURE TO DELIVER, DELAYED DELIVERY, OR MISDELIVERY OF TEXT MESSAGES THROUGH THE FIREBERRY TEXT MESSAGING SERVICE CAUSED BY ANY THIRD-PARTY VENDORS OR OPERATORS, INCLUDING, BUT NOT LIMITED TO, FAILURES ARISING FROM NETWORK OUTAGES, TECHNICAL MALFUNCTIONS, SERVICE INTERRUPTIONS, OR ANY OTHER CONDITIONS BEYOND FIREBERRY'S DIRECT CONTROL.
8. Indemnification Exclusion
Fireberry’s indemnification obligation under Section 10.4A of the Fireberry Terms shall not apply to the Fireberry Text Messaging Service. To avoid any doubt, the Customer's indemnification obligation under Section 10.4B of the Fireberry Terms shall remain in full force and effect.
9. Limitation of Liability
9.1. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THESE FIREBERRY SMS TERMS OR ELSEWHERE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIREBERRY, ITS AFFILIATES, AND THIRD-PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE FOR: (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, BUSINESS, OR ANTICIPATED SAVINGS; (III) ANY LOSS OF OR DAMAGE TO DATA, INTELLECTUAL PROPERTY, REPUTATION, REVENUE, OR GOODWILL; (IV) ANY FAILURE OF SECURITY MEASURES OR PROTECTIONS; OR (V) ANY COSTS INCURRED TO PROCURE SUBSTITUTE GOODS OR SERVICES.
9.2. THE EXCLUSIONS AND THE LIMITATIONS OF LIABILITY IN SECTION 9.1 SHALL APPLY: (I) EVEN IF FIREBERRY, ITS AFFILIATES, OR THIRD-PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH LOSSES OR DAMAGES; (II) EVEN IF ANY REMEDY PROVIDED IN THESE TERMS IS FOUND TO FAIL OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE LEGAL THEORY OR BASIS OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. IN ANY EVENT, FIREBERRY'S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES ARISING UNDER THESE FIREBERRY SMS TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO FIREBERRY FOR USE OF THE FIREBERRY TEXT MESSAGING SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10. Term and Termination
Your access to and use of the Fireberry Text Messaging Service is contingent upon your compliance with these Fireberry SMS Terms and the Fireberry Terms. Fireberry reserves the right to terminate the Fireberry Text Messaging Service, or any part thereof, at any time, at its sole discretion, and without liability to you. If Fireberry terminates the Fireberry Text Messaging Service without cause, you will be refunded for any unused SMS messaging credits for which fees have been paid.
11. General Provisions
11.1. Updates and Modifications to these Fireberry SMS Terms
We reserve the right to amend, modify, and/or update these Fireberry SMS Terms at any time and at our sole discretion.
11.2. Conflict
Should there be any conflict between the provisions of these Fireberry SMS Terms and the Fireberry Terms, the provisions of the Fireberry SMS Terms shall prevail.
11.3. No Reliance
You acknowledge and agree that you shall not rely upon, nor shall you have any remedy regarding, any statement, warranty, or representation made by us or any person on our behalf, whether made innocently or negligently, unless explicitly stipulated in these Fireberry SMS Terms or the Fireberry Terms.
11.4. Interpretations
The headings, captions, and section titles contained in these Terms, along with any explanatory or summary columns, are included solely for convenience and shall not affect the interpretation of the provisions of these Fireberry SMS Terms, nor shall they have any legal effect.
11.5. Survival
Sections 5, 6 (limited to subsections i, ii, iii, and iv), 7, 8, 9, 10, and 11 shall survive the expiration or termination of these Fireberry SMS Terms.
Effective Date:06/11/24