These Terms of Service (this “Agreement”) set out the terms on which Messangi Corporation, a company organized under the laws of the State of Florida, United States, with offices at 5798 SW 68th St, Miami, Florida 33143, USA (“Messangi”), provides the Services to the customer or the organization on whose behalf the Services are accepted (“Customer”). These published terms apply to customers contracting with Messangi Corporation. Customers invoiced by another Messangi entity contract under a separate local agreement.
This Agreement is effective on the date the Customer first accepts it, by approving or signing an Order Form that references it or by otherwise accepting it in writing (the “Effective Date”). If the Customer has a separate signed agreement with Messangi covering the Services, that agreement governs and this Agreement does not apply, except for any Service not covered by that agreement.
1. Definitions
“Acceptable Use Policy” or “AUP” means the Messangi Acceptable Use Policy, available on the Messangi website, as updated under its terms.
“Affiliate” means an entity that controls, is controlled by, or is under common control with a party.
“Confidential Information” means non public information disclosed by one party to the other that is marked confidential or that a reasonable person would understand to be confidential, including the terms of this Agreement and any Order Form.
“Customer Application” means any application or service made available by the Customer that interfaces with the Services.
“Customer Data” means data, including Personal Data, that the Customer or its End Users submit to or process through the Services.
“Data Processing Addendum” or “DPA” means the Messangi Data Processing Addendum, available on the Messangi website, which governs the processing of Personal Data.
“Documentation” means the usage guides, policies, and technical documentation for the Services made available by Messangi.
“End User” means any user of a Customer Application and any recipient of communications sent through the Services by the Customer.
“Order Form” means a quote, order, or ordering document, including any minimum commitment, agreed between the parties that references this Agreement and specifies the Services and commercial terms. An Order Form approved or signed by the Customer constitutes acceptance of this Agreement.
“Personal Data” has the meaning given in the DPA.
“Privacy Policy” means the Messangi Privacy Notice, available on the Messangi website.
“Services” means the Messangi messaging and customer engagement products and platform ordered under an Order Form or otherwise made available to the Customer, including the APIs, console, and communications channels.
2. The Services
2.1 Provision
Messangi will make the Services available to the Customer in accordance with this Agreement, the Documentation, and any Order Form, and will provide the Services in accordance with the laws applicable to Messangi as a provider of the Services generally. Messangi will use commercially reasonable efforts to provide support for the Services and, where applicable, to use qualified personnel and industry standard measures to scan for and remove malicious code.
2.2 Changes to the Services
The features of the Services may change over time, provided that Messangi will not materially decrease the overall functionality of the Services during a paid term. Messangi will use commercially reasonable efforts to give at least sixty (60) days notice of a change to the platform that is not backward compatible, except where the change is required for security reasons, by a communications provider, or to comply with law. It is the Customer’s responsibility to keep each Customer Application compatible with the Services.
3. Orders and Incorporated Documents
The Services and their commercial terms are set out in one or more Order Forms. If the Customer uses Services not set out in an Order Form, the applicable standard rates apply. Each Order Form is governed by this Agreement and the following documents, which are incorporated by reference: the Acceptable Use Policy, the Data Processing Addendum, the Privacy Policy, the Messangi Subprocessor List, and the Documentation. By approving or signing an Order Form, the Customer accepts this Agreement and those incorporated documents.
4. Customer Responsibilities
The Customer will:
Be solely responsible for all use of the Services and Documentation under its account and each Customer Application, and for all acts and omissions of its End Users.
Use the Services only in accordance with this Agreement, the AUP, the Documentation, any Order Form, and applicable law.
Provide accurate and current onboarding and verification documentation that Messangi reasonably requests, including identification of the authorized signing legal representative, the Customer’s incorporation or formation documents, and address verification, and promptly notify Messangi of any material change to that information.
Use commercially reasonable efforts to prevent unauthorized access to the Services, safeguard its credentials and API keys, and notify Messangi without undue delay at security@messangi.com of any actual or suspected unauthorized access or use.
Provide reasonable cooperation with information requests from law enforcement, regulators, or communications providers.
5. Customer Representations and Warranties
The Customer represents and warrants, on a continuing basis, that:
Authority and verification. it has the authority to enter into this Agreement, the individual accepting it is authorized to bind the Customer, and the onboarding and verification documentation it provides is accurate, current, and lawfully provided.
Consent and rights. it has obtained and maintains all consents, permissions, and legal bases required to collect the Customer Data and to send each communication through the Services, including valid and documented opt in consent from each recipient where required by law or by carrier or platform rules, and that it has the right to use the sender identities and the recipient lists it submits.
Lawful content and use. its Customer Data, content, and use of the Services comply with applicable law, the AUP, the requirements of the CTIA, the GSMA, mobile operators, The Campaign Registry, and the channel terms referenced in Section 6, and do not infringe or misappropriate the rights of any third party.
Notices to End Users. it has provided its End Users with all privacy notices required by law and is responsible, as controller, for its End Users’ rights in the Customer Data.
6. Channels and Third Party Services
Certain Services depend on third party communications platforms and networks, including Meta and WhatsApp, mobile network operators, email infrastructure, and RCS providers. When the Customer uses a channel, it must comply with that channel’s applicable terms and policies, which are flowed down through this Agreement, including:
WhatsApp and Meta. the WhatsApp Business Terms of Service, the WhatsApp Business Messaging Policy, and the Meta business and platform terms applicable to messages sent through the WhatsApp Business Platform. Messangi acts as a Business Solution Provider and is required to flow these terms down to the Customer. The Customer must comply with them as a condition of using the WhatsApp channel.
SMS and 10DLC. carrier and aggregator requirements and, for United States traffic, registration with The Campaign Registry, as described in the AUP.
Messangi is not responsible for acts or omissions of these third party providers, and the availability of a channel may depend on the Customer’s and Messangi’s continued good standing with the relevant provider. A material change required by a provider may be implemented as described in Section 2.2.
7. Suspension
Messangi may suspend the Services, in whole or in part, on notice where it reasonably determines that: the Customer or its End Users have materially breached this Agreement or the AUP; there is an unusual and material spike in use that is fraudulent or that materially and negatively affects the Services; provision of the Services is prohibited by law; use of the Services threatens the security, integrity, or availability of the Services; or account information is untrue, inaccurate, or incomplete. Messangi will limit the scope and duration of a suspension to what is reasonably necessary. Suspension does not relieve the Customer of its obligation to pay Fees for the Services provided.
8. Fees and Payment
8.1 Fees and Billable Transactions
The Customer will pay the Fees set out in each Order Form. Billable transactions include, without limitation: messages sent or received across SMS, push, WhatsApp, RCS, and email; WhatsApp conversations initiated; web interactions; and mobile wallet pass generations. Use of Services not set out in an Order Form is charged at the applicable standard rates.
8.2 Communications Surcharges and Taxes
Fees are exclusive of communications provider fees and surcharges and of taxes, which the Customer will pay and which may appear as separate line items. The Customer will pay all costs, fines, or penalties imposed on Messangi by a government, regulator, or communications provider as a result of the Customer’s or its End Users’ use of the Services. If the Customer is exempt from a tax or surcharge, it will provide a valid exemption certificate by email to finance@messangi.com, effective on a going forward basis once approved.
8.3 Invoicing and Payment
Unless an Order Form states otherwise, Messangi invoices monthly to the email addresses the Customer designates, Fees are payable in United States dollars, and payment is due within thirty (30) days of the invoice date. If the Customer fails to pay and does not cure within fifteen (15) days of written notice, Messangi may charge a late fee of the lesser of 1.5 percent per month or the maximum allowed by law and may suspend the Services until paid. Payment obligations are non cancelable and Fees once paid are non refundable, except as expressly stated.
8.4 Payment Disputes
The Customer may dispute an invoice in good faith by written notice within sixty (60) days of the invoice date and may withhold only the disputed amount while cooperating diligently to resolve the dispute. Messangi will not charge a late fee or suspend the Services for amounts properly in dispute, unless the Customer fails to cooperate or the dispute is not reasonable or in good faith.
9. Term and Termination
9.1 Term
This Agreement begins on the Effective Date and continues for an initial term of six (6) months, and then renews automatically for successive twelve (12) month terms, unless either party gives written notice of non renewal at least thirty (30) days before the end of the then current term. Each Order Form continues for the term stated in it.
9.2 Termination for Convenience
Either party may terminate this Agreement for convenience on at least thirty (30) days written notice, except that this Agreement will not terminate while any Order Form remains in effect, and termination does not relieve the Customer of any minimum commitment in an active Order Form.
9.3 Termination for Cause and Insolvency
Either party may terminate this Agreement and any Order Form if the other party commits a material breach, including a breach of the AUP, and fails to cure within fifteen (15) days of written notice. Either party may terminate immediately on the other party’s insolvency, dissolution, assignment for the benefit of creditors, or bankruptcy, subject to applicable law. If Messangi terminates for the Customer’s material breach, it may also close the Customer’s accounts.
9.4 Effect of Termination
On termination, the Customer’s right to use the Services ends, accrued Fees become due, and the parties’ obligations regarding Customer Data are governed by the DPA. Sections that by their nature should survive will survive, including Sections 1, 8, 10, 11, 12, 13, 14, 15, 16, and 17.
10. Confidentiality
Each party, as receiving party, will protect the other party’s Confidential Information using at least reasonable care, use it only to perform under this Agreement, and not disclose it except to its personnel and advisors who need it and are bound by confidentiality obligations. These restrictions do not apply to information that is or becomes public without breach, was known without obligation, is independently developed, or is rightfully received from a third party. A party may disclose Confidential Information if required by law, after giving reasonable notice where permitted so the other party may seek protection, and disclosing only what is required. Each party acknowledges that breach of this Section may cause irreparable harm for which monetary damages are inadequate, and that the non breaching party may seek injunctive relief.
11. Data Protection and Privacy
The Customer grants Messangi and its Affiliates the right to process Customer Data as necessary to provide the Services in accordance with this Agreement and the DPA, and is responsible for the quality, integrity, and lawfulness of the Customer Data. The processing of Personal Data is governed by the DPA. Messangi’s processing of personal data as a controller is described in the Privacy Policy. The Customer must not submit protected health information governed by HIPAA unless the parties have signed a separate Business Associate Agreement. Protected health information is not permitted on these standard terms.
12. Intellectual Property
Messangi retains all right, title, and interest in and to the Services, the Documentation, and all related intellectual property, including all pre existing intellectual property and all improvements. This Agreement grants the Customer only a limited, non exclusive, non transferable right to use the Services during the term in accordance with this Agreement. The Customer retains all right, title, and interest in and to the Customer Data. The Customer must not resell, lease, sublicense, or otherwise make the Services available to third parties except to make them available to its End Users through a Customer Application as permitted here.
13. Indemnification
13.1 By the Customer
The Customer will defend, indemnify, and hold harmless Messangi and its Affiliates from and against any third party claim, and any resulting losses, damages, fines, penalties, and reasonable legal fees, arising out of or relating to: the Customer Data or content; the Customer’s or its End Users’ use of the Services; the Customer’s messaging traffic, including claims under the TCPA, privacy, consumer protection, or anti spam laws and fines imposed by a regulator or communications provider; the Customer’s breach of this Agreement, the AUP, the representations in Section 5, or the channel terms in Section 6; and any claim that the Customer Data infringes or misappropriates a third party right.
13.2 By Messangi
Messangi will defend, indemnify, and hold harmless the Customer from and against any third party claim that the Services, as provided by Messangi and used in accordance with this Agreement, infringe that third party’s intellectual property rights, and any resulting damages finally awarded. Messangi has no obligation for any claim arising from the Customer Data, the Customer’s content, a channel or third party service, use not in accordance with this Agreement, or any modification not made by Messangi.
13.3 Procedure
The indemnified party will give prompt notice of the claim, allow the indemnifying party to control the defense, and provide reasonable cooperation. The indemnifying party will not settle a claim in a way that imposes a non monetary obligation on the indemnified party without its consent, not to be unreasonably withheld.
14. Warranty Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND MESSANGI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. MESSANGI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT MESSAGES WILL BE DELIVERED, WHICH DEPENDS ON THIRD PARTY NETWORKS AND PLATFORMS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME MAY NOT APPLY.
15. Limitation of Liability
EXCEPT FOR THE EXCLUDED CLAIMS BELOW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS, REVENUE, OR DATA, EVEN IF ADVISED OF THE POSSIBILITY. EXCEPT FOR THE EXCLUDED CLAIMS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO MESSANGI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM.
The “Excluded Claims”, which are not subject to the limitations above, are: the Customer’s payment obligations; either party’s indemnification obligations under Section 13; a party’s breach of its confidentiality obligations under Section 10; and the Customer’s breach of the AUP, violation of law, or infringement or misappropriation of intellectual property.
16. Notices
Notices to Messangi must be sent to legal@messangi.com and to Messangi Corporation, Attention: Legal Department, 5798 SW 68th St, Miami, Florida 33143, USA. Notices to the Customer may be sent to the email or address associated with its account. Notices are effective on receipt. Operational notices regarding the Services may be given through the console or by email.
17. General
Governing Law and Venue. This Agreement is governed by the laws of the State of Florida, without regard to its conflict of laws rules. The parties submit to the exclusive jurisdiction of the state and federal courts located in Miami Dade County, Florida, and waive any objection to that venue.
Waiver of Jury Trial. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Assignment. The Customer may not assign this Agreement without Messangi’s prior written consent. Messangi may assign this Agreement to an Affiliate or in connection with a merger, acquisition, or sale of assets. This Agreement binds the parties’ permitted successors and assigns.
Amendment. Except for the AUP, the DPA, the Privacy Policy, the Subprocessor List, and the Documentation, which Messangi may update in accordance with their own terms, this Agreement may be amended only by a writing signed by both parties. Messangi may update this Agreement prospectively by posting a revised version with a new Effective Date and, for material changes, giving reasonable notice; the version in effect when the Customer accepted an Order Form governs that order unless the parties agree otherwise.
Force Majeure. Neither party is liable for a failure or delay caused by events beyond its reasonable control, including acts of God, war, civil unrest, labor disputes, utility or network failures, and government action, provided it uses reasonable efforts to continue performance.
Severability and Waiver. If any provision is held unenforceable, the rest of this Agreement remains in effect. A waiver must be in writing and does not waive any later breach.
Entire Agreement. This Agreement, together with the Order Forms and incorporated documents, is the entire agreement between the parties on its subject matter and supersedes prior communications. The Customer has not relied on any statement not set out in this Agreement, and salespersons have no authority to make commitments inconsistent with it.
Prevailing Party. In any action to enforce this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.
Counterparts. An Order Form may be signed in counterparts, including by electronic signature, each of which is an original and all of which form one instrument.