Terms and Conditions for Enterprise Bulk Messaging Service

The Bulk Messaging Service is made available by Progresif to the Customer subject to these terms and conditions for the Service (“Terms and Conditions”). This Agreement shall come into effect on the date of execution of the Service by the Customer and shall continue to be in force until terminated or expires in accordance with these Terms and Conditions. By using our Enterprise Bulk Messaging Service, the Customer acknowledges that they have read, understood, and agreed to these terms and conditions.

• Definitions

In these Terms and Conditions, unless the context otherwise requires, the capitalized terms have the meanings assigned to them below:

• “Agreement” means these Terms and Conditions for the Enterprise Bulk SMS service, the application form, the terms and conditions of services of any chosen bundling set plan and any other documents, which are to be construed to be part of this Agreement. This Agreement forms a contractual obligation and shall be legally binding on the parties.

• “Commencement Date” means the date of commencement of the Services as specified in Service Acceptance Form (“SAF”)

• “Bulk SMS” means the short messaging service (“SMS”) disseminated in large numbers via short codes specified in the SAF for delivery to Subscribers’ mobile devices or terminals which will be used by the Customer for the purpose of mobile marketing and notifications only.

• “Charges” means the charges for the provision of the Bulk SMS by Customer to Subscribers as prescribed in the SAF and which are payable by the Customer to Progresif.

• “Enterprise Bulk SMS” means an SMS broadcast service which allows the Customer to communicate with a list of contacts within their database using SMS messages via a dedicated short code. 

• “Monthly Report” means monthly report produced by Progresif for the purpose of payment of Charges, fees or any other charges as may be determined by Progresif from time to time.

• “Spamming” shall mean (i) a situation where SMS has been sent to recipients without their prior consent and/or (ii) any unlawful or fraudulent SMS.

• “Scamming” shall mean (i) providing misleading information in any manner which may infringe the copyright, patent, trademark, trade secret or other proprietary rights or any; third party or rights of privacy.

• “Service” means the Enterprise Bulk SMS which enables the Customer to disseminate Bulk SMS to the Subscribers.

• “Subscribers” mean the Customer’s clients who subscribe to the Bulk SMS broadcast from the Customer.

• Customer’s responsibilities

• The Customer agrees not to use the Service:

• To send unsolicited, unlawful, abusive, harassing, threatening or obscene messages to any Subscriber.
• For spamming activities.
• For scamming activities.
• The Customer warrants that:

• they have a commercial relationship with their Subscribers and that their Subscribers have consented to receive marketing communications from the Customer;
• they shall include their own contact details and identifying particulars in their messages to ensure that complaints are directed to them and not at Progresif; and
• agree that they shall not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of the Subscribers.

• Where the Customer signs up for a contract, the Customer agrees to subscribe to the Service for a minimum subscription period as specified on the SAF commencing from the Commencement Date.

• In respect of the Service, the Customer agrees that:

• the limit for any SMS scripts shall be a maximum of 160 characters per SMS.
• only a maximum three (3) sender names on the SMS Portal is permitted.
• For one-off non-contract purchases of the Service and where the Customer requests for Progresif to carry out the SMS coordination, there will be a maximum of three (3) SMS coordination shootouts per BND500.00 activation fee. Illustration: Company A opts for 1000 SMS package and wants Progresif to do the SMS coordination, it will be done on Day 1, Day 4 and Day 21 only.

• The Customer agrees that Progresif exercises no control whatsoever over the Bulk SMS and is a passive conduit in transmitting and handling the Bulk SMS. The Customer shall bear sole responsibility for: (a) the Bulk SMS transmitted using the Service; and (b) the acts, omissions or breaches of the Subscribers with respect to the use of the Service.

• The Customer shall indemnify Progresif and keep Progresif indemnified and hold us harmless from and against any breach by Progresif of these terms of business and any claim brought against Progresif by a third party resulting from the provision of Service by Progresif to the Customer and the Customer’s use of the Service, including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.

• The Customer’s account cannot be transferred or used by anyone other than the Customer.

• Service availability & SMS Delivery

• The Customer acknowledges that the distribution of SMS is via third party mobile network providers and, therefore, Progresif cannot control certain factors relating to SMS delivery.

• Progresif shall provide the Service on an “As Is” and “As Available” basis. Progresif and/or its shareholders, directors, officers and permitted assignees shall not be held liable or responsible for any unavailability, inaccessibility and interrupted use of the Service and security of the data or information transmitted to and from the Subscriber via the Service. Progresif shall not be held responsible or liable for interruptions to the Service including but not limited to failure or downtime in power, base stations, satellite or satellite transmissions, service equipment, signal processing, uplink equipment and such other interruptions of a technical nature.

• Progresif makes no representations or warranties, express or implied with respect to the use of or access to the Service provided.

• Progresif does not provide end-to-end delivery guarantees. Therefore, there are no guarantees that an SMS will be delivered to its recipient. Delay or complete loss of an SMS is inevitable.

• SMS may not be delivered if the recipient’s phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control may interfere with SMS delivery, including the recipient’s equipment, terrain, proximity to buildings, foliage, and weather. The Customer acknowledges that urgent SMS may not be timely received and that Progresif does not guarantee that the SMS will be delivered.

• The Customer has the option to subscribe for an SMS Portal at additional charges. The SMS Portal does not allow non-Latin characters or foreign characters and consists of one-time configuration of user login and sender masking only.

• Fees, Refunds and Payment

• Upon signing of the SAF, the Customer shall pay to Progresif the applicable Charges as stated on the SAF.

• Where the Customer signs up for a contract, the first monthly recurring charge will be prorated if the length of use from the Commencement Date is less than a full month bill cycle.

• Should the Customer exceed their SMS count under their subscribed tiered package, the Customer shall be charged an additional tiered package that is rounded up to the nearest number of SMS sent, based on the number of SMS exceeded.

Illustration: if a Customer on a 10,000 SMS tiered package sends 10,300 SMS, the Customer will be charged for both the 10,000 SMS tiered package and the 500 SMS tiered package.

• The Customer is permitted to upgrade their subscribed tiered package within the contract period. No downgrades are permitted.

• The Customer may be subject to additional charges where the Customer subscribes for the optional SMS Portal.

• SMS OTP anS charges are charged separately at the below rates:
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•  

• Progresif shall issue an invoice to the Customer at the end of every month. The Customer shall make payment of the invoice issued by Progresif within thirty (30) days from the date of receipt of the invoice.

• Any charges for additional usage of the Service as stated in Clause 4.3 will appear in the Customer’s subsequent bill cycle.

• Progresif shall provide monthly reports of the Bulk SMS usage to the Customer within the first (1^st) week of the following month. The monthly reports contain logs generated from Progresif’s data which indicate the volume of any Bulk SMS transmitted by Progresif to the Subscribers, either successfully delivered or unsuccessfully delivered. The Monthly Report shall be final, binding and conclusive and shall be the only report used to settle all payment payable by the Customer to Progresif under the Agreement.

• No refund shall be made to the Customer for the following events:

• for any unused SMS quota in the Customer’s tiered package
• where any mistake caused by the Customer.
• where any SMS was rejected or unsuccessfully delivered.

• Suspension and Termination

• Progresif shall have the right, in its sole discretion and without liability to the Customer, at any time and without compensation, to suspend or terminate the Service and this Agreement under the following conditions:

• if any technical failure occurs in the Service;
• while the Service is being upgraded, modified or maintained;
• if the Customer breaches any clause in these T&Cs;
• if the Customer fails to make payment of the stipulated Charges within the stipulated credit terms;

• if the Customer does anything which may, in the opinion of Progresif, lead to the damage or losses to the Service; or

• if it is in Progresif’s opinion that the Service is or may be used fraudulently or for unlawful purpose. Fraudulent use includes but not limited to resupplying the service or giving access without Progresif’s consent to a third party.

• In the event of suspension, the Customer shall continue to be liable for the accrued and outstanding charges and fees. Progresif in its sole discretion may re-connect the Service which had been previously suspended. Such reconnection may be subject to payment of other charges.

• Progresif has the right to engage in and forward any unsettled bills or charges to its appointed debt collecting agent and/or external legal firms who will then be authorized to collect payment or engage legal proceedings against the Customer on Progresif’s behalf. Any legal or agency costs incurred as a result will be borne solely by the Customer.

• Where the Customer is under an obligation to subscribe or use the Service for any stipulated or minimum period and the Customer wishes to terminate the Service before expiry of that period, the Customer shall pay the amount prescribed by the Service Provider for the termination or cancellation of the Service before the end of that period.

• Limitation of Liability

• Progresif shall not be made liable for any loss or damage in contract or in tort (whether direct, indirect, incidental or consequential) suffered by the Customer, or for loss of business, revenue, or profits of the Customer, or any damages, death or injuries sustained by the Subscriber or damage to the Subscriber’s property resulting from the use or inability to use the Service, any malfunctioning of the Service or any act, omission, error or default by Progresif in respect of the Service.

• Progresif shall not be liable to the Customer for any claims or for any additional costs incurred by the Customer in obtaining substitute services, nor shall Progresif be held liable for any legal claims for libel, slander, infringement of any intellectual property rights as a result of the Customer’s use of the Service.

• Without prejudice to the foregoing, the liability of Progresif to the Subscriber in contract, or tor or otherwise shall not at any time exceed the limit of liability sum specified in the SAF. Nothing in the Agreement will limit or exclude the Customer’s liability in relation to (a) Customer’s fraud, fraudulent misrepresentation, gross negligence, violation of applicable laws, or willful default; (b) Customer’s breach of its obligations under this Agreement; (d) Customer’s indemnity obligations; and (e) Customer’s payment obligations.

• Progresif’s Rights

• Progresif shall its reasonable endeavours to make available to the Customer at all times the Service but we shall not, in any event, be liable for interruptions of Service.

• Progresif is entitled to amend, revise, discontinue, alter the Service, the terms and conditions of this Agreement or any payment terms, and may suspend, terminate, discontinue or substitute the Service, at any time in its sole discretion. For the avoidance of doubt, the latest terms and conditions of this Agreement shall be posted on Progresif’s website and shall supersede any previous terms and conditions of this Agreement

• Progresif reserves the right, at any time and without notice to the Subscriber to: (1) add, delete or make changes to the Service; (2) add or substitute alternative service; (3) terminate or discontinue any services provided. Continued usage of the Service pursuant to any of the above-mentioned revisions and alterations shall be deemed to be acceptance by the Subscriber.

• Progresif reserves the right, at any time and with appropriate notice to the Subscriber, to amend and vary any rates, fees, charges as filed by the Authority for Info-communications Technology Industry of Brunei (AITI) or otherwise. Such amendments and variations may be informed to the Subscriber by way of advertisement or publication in local newspapers, leaflets, website or other form of communication for which the Subscriber shall then be responsible for payment on any such amendments and variations.

• Progresif shall be under no liability whatsoever to the Customer in the event any of the rights reserved herein are exercised by Progresif. Progresif shall also reserve the right to amend the terms and conditions of this Agreement with one (1) month prior notice to the Customer.

• Force Majeure

Progresif shall not be liable for any interruption or discontinuation of service due to acts of God, emergencies, military operations, civil disorder, industrial disputes of any kind, fire, flood, lightning, rain, weather, outages, explosion, acts or regulation by the governmental agencies (including the withdrawal of consents, permits or licenses) or omission, failure, termination or cessation by third parties and relevant authorities beyond the control of Progresif.

• General

• All correspondences, requests and notices by Progresif to the Customer shall be sent via post or other means communicated at that relevant time to the last known address provided by Subscriber to Progresif and shall be deemed to be duly served at the time of delivery. Progresif in its discretion may also put up notices via any other form of communication channels such as email, SMS, newspapers, social media pages, websites etc.

• Progresif shall be permitted to transfer any of its rights, ownerships or obligations under this Agreement. The Customer shall not be entitled to assign any of its rights or obligations under this Agreement.

• If any of the terms contained in these Terms and Conditions are held to be invalid or unenforceable in whole or in part, the validity, legality and enforceability of the remaining terms and conditions shall not be affected or impaired thereby.

• Failure to enforce any powers, rights or remedies under this Agreement by Progresif shall not operate as a waiver of them nor shall any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.

• These Terms & Conditions shall be subject to and construed in accordance with the laws of Brunei Darussalam and the Customer hereby submit to the exclusive jurisdiction of the courts of Brunei Darussalam.

Last updated: 16 January 2024