The Company - ATP-LOGIC inc. and/or its representatives, developers and distributers of the smoove marketing platform, software and services.
The System - The smoove marketing platform, as described and defined in the publications published by the Company, which develops, operates, and markets this system.
Client - Any user, whether registered or not, that uses the smoove marketing platform and any other service or product related to this System.
Message - A message or messages, which can be sent by the Client through the System, such as: emails, WAP, MMS, SMS, social network messaging, as well as other messages, for a single Recipient or a list of Recipients.
Recipient - The subject or subjects of a Message sent by the Client through the System.
Operating the System
The first step in operating the System, and in the validation of your consent to all the Terms mentioned hereafter, is entering your client information (if the Client is a company, this includes the C.E.O’s information as well), address, email, phone number and credit card details, for billing purposes, in the designated areas. These details will be stored in our company’s secure database and will not be used for any other purpose than agreed upon in these terms.
1. Client’s Commitments
1.1. The Client intends to use the System and is obligated to pay the Company for said use, according to the specified rates detailed in the website’s price page.
1.2. The Client obligates not to use the smoove marketing platform and/or any other product or service by the Company in order to perform prohibited actions under the Laws of the State of Israel, including the Israeli Communication Law (‘Bezek’ and Broadcasting), 1982.
1.3. The Client obligates not to send any Messages without a written consent or request by the Recipient (i.e. SPAM Mail), as specified in amendment 40 to the Israeli Communication Law (‘Bezek’ and Broadcasting), to clearly identify themselves as the mail senders, to include address and contact information, to clearly identify the message as advertisement (in the case of an email – in the message header), to provide the Recipient with a removal option from the mailing list in any outgoing mail and to be immediately unsubscribed if so requested.
1.4. The Client will not infringe any of the Company’s intellectual property rights, including copyrights. The Client will be solely responsible for the contents contained in the Messages sent and hereby explicitly dismisses the Company from examining their content, origin and/or examining the required certifications for their use. These examinations are the sole responsibility of the Client and will be performed accordingly by him/her.
1.5. The Client agrees that the Company is not responsible for the contents, Messages and designs of Messages sent from the System by the Client and that it is not responsible for any loss and/or expense and/or damage incurred as a result of these contents, to the customer and/or any third party individual, including violations of intellectual property rights or violations of privacy. The Client agrees that the sole responsibility of these acts or omissions applies to him/her only. If expenses or damages will be caused to the Company as a result of a third party lawsuit for the actions and omissions of the Client, the Client will indemnify the Company immediately upon firs demand.
1.6. In any case in which the Client uses the system or any other product and/or facility of the Company to perform a forbidden act as mentioned above, the Company will be entitled to remove any content/Message/graphic design etc. off the Client’s system and/or to restrict the Client’s access. The Client herby concedes any claims for any damage, direct or indirect, loss of income and/or profit and/or expenses that will be caused to him/her, and they will not constitute as cause for the Client’s cancelation, suspension, delay or reduction of payment or any due commitment to the Company.
1.7. The Client agrees not to distribute Messages and/or to use the system’s server resources in a way that will damage their function, in accordance to the Companies sole judgment. If such an incident does occur, the Company is entitled to suspend the Client’s services immediately and without notice.
1.8. The client agrees not to allow third party members to make any use of the product or services provided by the Company, whether with or without payment, without prior permission from the company.
1.9. The Client declares that the Company, its employees or any other acting on its behalf, shall not be found responsible for damages and/or loss of profit of any kind to the Client, and the Client will not demand compensation and he/she will not be reimbursed or compensated in any other way for any damages, whether direct or indirect, and/or for the loss of profit and/or other caused to the client and/or any third party due to a brake or interference in the power supply, a telecommunication failure, a computer virus, system software additions, subtractions or updates, intentional sabotage, hacks, and malfunctions of any kind.
1.10. In case of a system malfunction that prevents proper operation of the system on the Client’s computer or peripheral equipment, the Company shall act, directly or indirectly, to help solve the problem, and if no price was agreed upon for this service, the price will be per hour according to company’s price list, as determined from time to time.
1.11. The Client declares him/herself responsible for backing up files and/or data stored for him/her by the Company, whether if they were provided by the Company or by the Client, and the Company will not be liable to any damage that might occur due to loss of files that were deleted, for one reason or another, and were not backed by the Client. The Client declares that the Company is released from all responsibilities for damages due to loss of files and that the Client is denied from asserting and charging the Company for such damages.
1.12. The Client allows the Company to add an additional credit line to Messages sent by the System, which will include the Company’s name and logo as well as a link to the Company’s website. The Company may change the design or content of this line from time to time in its sole discretion.
2. Improper Behavior
2.1. The Client concedes that suspicions of inappropriate behavior when using the system, whether by the Client or by a person acting on his/her behalf, as described here, constitute as grounds for suspension of services for the Client for the duration of examining the allegations, and cancelation of services in case these allegations are confirmed to be true. The Client will not be entitled to any compensation from the Company for any damages that might be caused due to suspension or cancelation of service. The Client concedes that suspension or cancelation of services shall not constitute grounds for termination of any payment that is owed to the company, including monthly fees.
2.2. Without diminishing from other sections of this agreement, the Client assures that the Content which will circulate through the System will not contain one or more of the following: 1) any material concerning gambling, illicit drugs, pornographic material or any material of a sexual nature; 2) any material relating to minors which identifies them, their details or their address and contact information; 3) any computer software, computer codes or applications containing viruses, including malware etc.; 4) passwords, user names and other details which enable the use of computer software, digital files, websites or services that require registration or payment, without payment or registration; 5) illegal material or material that encourages, supports or assists in performing an act which constitutes as a criminal offense under the laws of the State of Israel or that its distribution is banned according to law; 6) any material which constitutes as defamation of a person or violation of privacy or reputation; 7) materials which are hostile, threatening, abusive, racist, offensive to the public or that might be the basis for a civil claim; 8) anything that might damage the reputation and/or the good name of the cellular operators or their policy towards their customers; 9) any material responsible for the misguide of consumers, as implied by the Consumer Protection Law, 1981; and 10) any link or reference to prohibited publications.
2.3. Any attempt to use the System to disrupt or to block another internet server.
2.4. The Client is obligated not to attempt the above mentioned, in whole or in part, through another supplier, using the website or email addresses found on company servers as a mailing address for replies or for direction of recipients.
3.1. The Client will pay the Company its fees, in accordance with the ordered products, as specified in the Company’s packages price list.
3.2. The Client will pay the Company for changes, additions or any added work performed according to his/her request that was not included in the package originally purchased, according to the details specified in the Company’s invoices sent to the Client.
3.3. It is hereby clarified that the use of third party services, such as content writing, design, integration with external sources, etc., in which payment for services is not included in the package, will involve a handling fee in addition of payment, according to the details specified in the Company’s packages price list.
3.4. Any payment that will not be according to schedule detailed in the order form or invoice will bear interest at the accustomed rate in Leumi Bank Israel Ltd., for overdraft accounts, from the date agreed upon for payment until the date of de facto payment.
4. Period of Service and Cancelation
4.1. The term of the agreement is as stated in the packages purchase page, hereby the ‘Service Period’. In the end of the Period the agreement will be renewed automatically for an identical Period, unless otherwise specified in writing by the Company or the Client, no later than 30 days before the end of the Service Period, stating the termination of the contract.
4.2. A Client who announces on cessation of the current use of the System will be charged the periodic usage fees for the remaining duration of the contract.
5. Service Disconnection or Termination
5.1. The parties will be entitled to terminate the contract under this agreement in any case of a violation its conditions and orders, provided they notify this, in writing, to the other party 30 (thirty) days in advance. If the violation has been corrected within 30 (thirty) days, and a written or emailed notice was given, the service agreement will remain in force.
5.2. The Company may disconnect or restrict its services to the Client without notice, due to the occurrence of any one of the incidents specified under ‘client’s commitment’ and emphasized as ‘performing forbidden acts’. The Client accepts that in such cases, services will be suspended or cancelled by the Company and these suspensions and cancellations will not constitute grounds for termination of any payment that is owed to the Company, including fees.
5.3. The Company may disconnect or restrict its services to the Client if the Client owes a debt to the Company, has been warned for nonpayment of debt and has not repaid his/her debt within 7 (seven) working days of notification.
5.4. The Company may disconnect or restrict its services to the Client if the Client uses the Company’s services in a manner that, according to the Company’s judgment, may cause disturbance to the Company, its facilities, its services or its ability to provide adequate service to other Clients, or in a way contradicts the commitments specified in section 1 ‘Client’s Commitments’ and section 2 ‘Improper Behavior’.
6. Service and warranty
6.1. The Client declares that the Company is not liable for damage, loss of profit or any expenses inflicted during this period due to malfunctions or inaction of the product.
6.2. The Company’s liability, whether under Contract Law, damages, or any other law, for direct and/or indirect damages, shall be limited to the sum de facto paid by the Client to the Company for the product, or the periodical usage fees for the last three months, the lower of the two. It is hereby clarified that the compensation will be given only once, will include all damage clauses, and will not be accumulative for each damage clause.
7. Intellectual Property
7.1. The System, for all its parts and contents, including applications developed by the Company, shall constitute as the Company’s intellectual property, even if alterations have been made to it specifically for the Client, whether for or without payment, and whether it is a one-time development or a periodic relationship.
7.2. The System’s source code will not be released to the Client or to his representatives and will not be given access or transferred to a third party server.
7.3. The Client agrees not to sell or rent the use of the System to a third party, hereby the “Receiver”, without the prior written consent of the Company. In case the Client acted as such with the permission of the Company, the Client undertakes to consent the Receiver to all the provisions and understandings of this agreement in his/her place. In case of damage, direct or indirect, and/or expanse to the company, as a result of an act or omission by the Recipient, on the basis of this agreement, the Client shall indemnify the company for its expenses and/or damage immediately upon first demand.
8. Confidentiality Agreement
8.1. The Client and the Company are committing to one another that they, both directly and through their employees, representatives or agents, will prevent from transferring and keep in complete confidentiality, any commercial information or other that will pass by them, through communications under this agreement, to any foreign entity, unless a permission was given by the other party, in advance and in writing. This obligation is not time restricted and will remain valid even if the parties have concluded their relationship. This agreement will not apply on general common knowledge. The confidentiality restriction, as stated above, will not apply if either party will be required to reveal any information in its possession, according to any law which applies to this matter and according to explicit instruction in this matter that will be passed to either party by the court.
9.2. It is hereby clarified that in case the use of the system includes the cooperation of a third party, such as content acquisition, design, service management, photography, software development, translation services, wireless carrier services, maintenance services, etc., performed by a third party, the Company shall not be responsible for any malfunction or delay caused due to third party product or service usage, as stated, and will be regarded as if the Client has directly contracted this third party in the matter of responsibility towards it in these matters.
9.3. The Company may deduce from any sum it will receive from the Client, according to this agreement or any other agreement or debt owed by the client to the company.
9.4. The Company may assign any right of its rights under this agreement to a third party, provided that it undertakes the provisions of this agreement in its place.
9.5. The Client agrees to receive invoices via email.
9.6. The Client allows the Company to send him/her information, including promotional information, via email or SMS.
9.7. It is hereby agreed that the laws of the State of Israel shall apply to this agreement and that it will be interpreted by them.
9.8. It is hereby agreed that the court that will exclusively discuss any matter relating to this agreement or arising from it, is the Tel-Aviv-Jaffa Court, and that no other court will have jurisdiction over this matter.
9.9. The addresses of the parties are as specified in this agreement or on the order form. Any message sent by registered mail via this address will be considered as if accepted by the other party within 72 hours of delivery. Each message sent to the other party email address, or fax, as specified above, will be seen as sent in the date of deliverance.