Terms of Service
Welcome to www.fortumo.com and thank you for your interest. These Terms of Service contain the terms and conditions that govern all use of the Service (as defined below). The Service is offered to you subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies, and any future modifications, and procedures that may be published from time to time on the Website or otherwise made available to you on or through the Service. When accepted by you, these Terms of Service form a legally binding contract between you and Fortumo. If you are entering into these Terms of Service on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN PLEASE DO NOT ACCESS, BROWSE OR OTHERWISE USE THE SERVICE. CLIENTS AND/OR USERS WHO VIOLATE THESE TERMS MAY HAVE THEIR ACCESS AND USE OF THE SERVICE SUSPENDED OR TERMINATED, AT FORTUMO’S DISCRETION.1.This agreement ("Agreement") is between You ("You") and Fortumo OÜ, a private limited company established under the laws of the Republic of Estonia, located at Ülikooli 6a, 51003 Tartu, Estonia, and registered in Estonian Commercial Register under code 11378397 ("Fortumo"). These Terms of Service are an inseparable part of the Agreement. Fortumo provides the service ("Service") to You on an "AS IS" basis, subject to the terms and conditions of the Agreement. The original language of the Agreement is English. Fortumo is entitled to make available the translations of the Agreement in certain other languages. In case of conflicts between the original English version and the translations into other languages, the English version shall prevail.
2. You represent and warrant that You are: (i) at least 18 years old and that You have the adequate legal capacity to enter into the Agreement, if You are a natural person; (ii) duly incorporated and have full legal capacity, if You are a legal person; not Estonian resident. You also represent and warrant that You will use the Service only for lawful purposes and in accordance to the Agreement and the instructions provided on the Fortumo website http://fortumo.com ("Website").
3. As part of the Service, Fortumo is granting You limited access to the Service, Website and servers. Fortumo is permitted to limit, deny, create different priorities for different users, update or cancel some or all of the functionality of the Service at any time, without prior notice.
4. Fortumo reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms of Service at any time by notifying you in advance via the contact details You have provided on the Website and/or by publishing the changes at the Website. Continuing to use the Service indicates that You fully accept the changes to the Agreement.
5. You create mobile services ("Mobile Service") using the Service provided by Fortumo. The Service and any part or element thereof is allowed to be used only in the scope, with the means and for purposes, which their functionality has been created for and made available to You. Any such use must be done in compliance with the Agreement and applicable law. For avoidance of doubt, this also means that (i) You are solely responsible for the Mobile Service and its content including but not limited to the compliance of the content and any parts thereof with applicable laws and regulations, mobile operator regulations, consumer protection or industry association guidelines in the countries of distribution of such content, (ii) the content shall not infringe any third party intellectual property rights, (iii) no content is discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age. You are also responsible for adherence of your Mobile Service to the terms of this Agreement and other terms and conditions provided on the Website. Fortumo reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. Fortumo explicitly excludes any responsibility for your Mobile Services and its content.
6. You shall not use the Service or any part or element thereof (i) for committing a crime, conducting some other breach of applicable law or for calling up for others to carry out such illegal actions, or (ii) to provide or support any sexual or sexually related content including any sexual behaviors that have a violent context, gambling or lottery services, or any content that brings Fortumo, in its reasonable judgment, into disrepute or damages the reputation or goodwill of Fortumo. Your Mobile Services shall not include any such content.
7. You shall not, and shall not encourage any third party, to use your Mobile Service without paying the price of it. You shall not engage in any action or practice that reflects poorly on Fortumo or otherwise disparages or devalues Fortumo’s reputation or goodwill.
8. In any marketing of your Mobile Service, You are responsible for giving all the information specified on the Website, including price references with the retail price that the end users will have to pay for using your Mobile Service.
9. You ensure that no false or misleading information, viruses or any other harmful, damaging or destructive programs, or any content which infringes or may infringe any third party intellectual rights are distributed with your Mobile Service, related websites or other promotional materials. For the avoidance of doubt, Fortumo will have no liability to You arising from or relating to any hardware, software, firmware or materials supplied under another agreement or by third parties (“Third Party Intellectual Property Material”), including but not limited to the selection thereof of failure of such Third Party Intellectual Property Material to perform in accordance with specifications or any defects therein. Responsibility for the selection of the Third Party Intellectual Property Material and any performance of functionality issues of defects therein will lie solely with You and/or the supplier(s) thereof.
10. You may terminate this Agreement at any time and for any reason (or no reason at all) by sending notice of termination to firstname.lastname@example.org. Fortumo may investigate any activity that may violate this Agreement. Fortumo may at any time, in its sole discretion, terminate the Service or terminate this Agreement for any reason. Fortumo reserves the right to terminate without notice any Mobile Service that has not generated sufficient number of valid uses for a period of 30 days or more.
11. Fortumo makes no guarantee regarding the performance of Fortumo’s systems, mobile operators’ billing systems, or the amount of any payment to be made to You under this Agreement.
12. In no event shall Fortumo be liable under this Agreement for any consequential, special, indirect, exemplary, or punitive damages, including indirect losses such as loss of earnings, financial or commercial loss, or loss of brand image. Fortumo’s total liability to You under this Agreement for any claim is limited to the net amount paid by Fortumo to You during the 3 month period immediately preceding the date of the claim.
13. DISCLAIMERS: (I) UNLESS OTHERWISE EXPRESSLY STATED BY FORTUMO, THE SERVICE AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FORTUMO AND ITS AFFILLIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY, (II) UNLESS OTHERWISE EXPRESSLY STATED BY FORTUMO, FORTUMO AND ITS AFFILIATES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14. This Agreement shall not be considered breached if Fortumo temporarily restricts or suspends some of its activities or fails to fulfill some of its obligations owing to an event of force majeure such as emergency, natural disaster, military conflict, epidemic, etc. for the duration of the effects of such force majeure. Fortumo must take steps that might be rightfully requested from it in order to minimize the consequences of the force majeure.
15. You shall receive a payment related to the number of valid uses of your Mobile Services, as determined by Fortumo. The exact amount of the revenue share for each type of Mobile Service use is specified at the Website.
16. Fortumo reserves the right to unilaterally change its pricing, revenue sharing and/or payment structure at any time, as defined on the Website. Fortumo will inform You about such change via e-mail or the Website. If You do not agree with the change, You may terminate the Agreement. Continuing to use the Service after the changes have become effective is considered an agreement with the changes.
17. Unless otherwise agreed to by the parties in writing (including by electronic mail or via Website), your earnings will become available for paying out to You within time period (specified at the Website) after the end of each calendar month that your services were used. The payments to You can be sent by Fortumo within this time period, if Your total unpaid earnings converted to Euros is at least €100, using currency conversion rates provided by Fortumo. Fortumo can change currency conversion rates at any time, without prior notice.
18. In the event the Agreement is terminated, Fortumo shall pay Your earned balance to You within approximately seventy five (75) days after the end of the calendar month in which the Agreement is terminated by You or by Fortumo. In no event, however, shall Fortumo make payments for any total earnings converted to Euros less than €100.
19. For accounting purposes, Fortumo reserves the right to reset your account balance when your services have not received any new messages during the last 6 months and the account balance is below 100€.
20. Fortumo will not be obliged to make any payments to You before Fortumo has received the corresponding invoicing data and payment from mobile operators.
21. You are aware that in case mobile operator’s billing system is not available, no transaction will be registered. Fortumo cannot guarantee continuous access to operator’s billing system.
22. You are aware that mobile operators disclaim their payment liability for transactions that the operator has failed to collect from the end users. In such event Fortumo has no payment obligation towards You.
23. Fortumo reserves the right to withhold payment or charge back Your account due to any breach of this Agreement by You, pending Fortumo's reasonable investigation of the breach. In the event that in Fortumo’s opinion the terms of this Agreement are breached, and as a consequence Fortumo has been charged by mobile operators or refunded payments to end users, Fortumo is entitled to invoice You for such refunds, charges and all costs incurred by Fortumo.
24. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account with Fortumo.
25. You agree to pay all applicable taxes or charges imposed by any government entity or mobile operator in connection with Your Mobile Services. In case it is required by any government entity or mobile operator, Fortumo has the right to withhold applicable taxes and charges from the payouts to You.
26. If You wish to dispute any payment, You should do so within 30 days of the date of receipt of such payment. Failure to do so in this period shall You be deemed to have accepted the correctness of the payment.
27. Payment shall be calculated solely based on records maintained by Fortumo. No other measurements or statistics of any kind shall be accepted by Fortumo or have any effect under this Agreement.
28. You agree that Fortumo may use Your name and logo in presentations, marketing materials and customer lists. If You wish to use Fortumo's trade names, trademarks, service marks, logos or domain names, You may do so, as long as such use is in compliance with this Agreement.
29. You agree to indemnify, defend and hold Fortumo, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (collectively "Indemnified Person(s)") harmless from and against any and all losses, damages, costs, expenses, claims, proceedings, liabilities and third party claims incurred at or brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Service or the Website, Your Mobile Services and its content, and/or Your breach of any term of this Agreement.
30. Fortumo may retain and use all information You provide, including but not limited to service usage details, contact and billing information. You agree that Fortumo may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your usage of the Service. Fortumo may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Fortumo disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. Fortumo may share non-personally-identifiable information about You, including service details, usage statistics and similar information collected by Fortumo, with advertisers, business partners, sponsors, and other third parties
31. Any end user information is owned by respective mobile operator, and You can only use this information for providing your Mobile Services. In case You abuse this rule and operator judges so, the penalties in force at the time will be charged to You and You undertake to pay any such penalties. This clause will remain in force after the termination of this Agreement.
32. You must assure that (i) You do not create, transmit, display or make otherwise available any data that violates the rights of Fortumo and/or third persons, or is harmful (for example viruses, worms and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful, (ii) You have the necessary rights to use the data, (iii) Fortumo is allowed to further process the data, acting as an authorised processor of data on behalf of You for the purposes of performing under the Agreement.
33. This Agreement shall be governed by the laws of Estonia, without regard to its conflict of law principles. Any dispute, controversy or claim arising out or in connection with the Agreement shall be finally settled by Harju County Court. Terms of service for estonian residents