Last Updated: 21.02.2023
1.1 These Terms and Conditions and all other applicable terms and policies that are incorporated by reference as described below (the “Terms”) establish the terms and conditions upon which MF MANAGEMENT Ltd., a limited liability company duly organized and existing under the laws of the Republic of Cyprus, Registration Number HE325492, VAT Number CY 10325492X, with its registered office at Parni 10, 3117, Limassol, Cyprus (the “Licensor”/”Contractor“/”edna”), invites legal entities (the “Licensee / Customer”/”You”) to use the edna software (the “System / Software”).
1.2 You or the Licensor may also be referred to individually as a “Party” and together as “Parties” in these Terms.
1.3 These Terms include edna’s email sent from the email address using @edna.io domain containing a unique link to register You in the Dashboard (hereinafter – the Letter). The unique link is valid for a limited time period. These Terms are addressed to the person indicated in the Letter.
1.4 After registration in the Dashboard under Section III of the Terms or the first payment under Section IV of the Terms, whichever occurs first (hereinafter – acceptance of the Terms):
(i) You are considered to have read and understand these Terms, accepted these Terms in full, without reservations or exceptions;
(ii) You represent and warrant that You have the right, power, and authority to enter into these Terms;
(iii) You are legally bound by these Terms, which form the legal agreement between You and the Licensor from the moment of acceptance of the Terms;
(iv) If You disagree with any terms hereof, You are not entitled to use the License and use the Services.
1.5 The acceptance of these Terms shall provide You with the opportunity to use the System features which you may have access by acquiring Licenses/Services under the Terms. The list of the System features that the You may acquire under the Terms is available at: https://edna.io/edna-system-features-list/ .
1.6 From the moment of acceptance of the Terms, all subsequent transactions between the Parties, including but not limited to the acquisition by You of additional Licenses and (or) Services, shall be carried out under the terms hereunder (including all its subsequent changes and additions in accordance with Section X of these Terms).
For the purposes of establishing the terms hereof, the following basic definitions shall apply:
2.1. Affiliates shall meanYours or edna’sparent companies or subsidiaries that You or edna controls.
2.2. System shall mean edna Software, to which the copyright holder has granted MF Management Ltd. (Licensor hereunder) the right to sublicense edna Software.
2.3. Dashboard shall mean a graphical interface of the System used by You (after registration under Section III of the Terms) to interact with the any features of the Software by acquiring Licenses/Services under the Terms.
Actions in the Dashboard. You guarantee that the actions aimed at registration in the Dashboard were performed by the Yours representative having the appropriate authority. From the moment of acceptance of the Terms, the actions performed through Your Dashboard are considered to be performed by You. From the moment of acceptance of the Terms, the actions of the Parties committed using the Dashboard are recognized by the Parties as having legal force. You guarantee that You have not shared and will not share data for logging into the Dashboard to unauthorized persons. The Dashboard may contain data about You, data on payments and settlements, granted Licenses and provided Services.
Right to use the Dashboard. Your Dashboard is not Your property and cannot be transferred to third parties. The graphical interface of the Dashboard is the intellectual property of the copyright holder. The Licensor grants You the right to use the Dashboard for the duration of the Terms. If, You do not accept the Tariffs/Pricing for more than 60 calendar days from the date of registration in the Dashboard, the Licensor has the right to block the Dashboard.
2.4. License shall mean the right granted to You in accordance with the License Rules to use the System with the Licensor retaining the right to issue licenses to other persons (a simple (non-exclusive) license) without granting You the right to sublicense the System; Depending on the set of services (the Services) required by Licensee, the Licensee will have to purchase one or more License. The License gives the Licensee the opportunity to use the Services that the Contractor provides using the System. Unless otherwise specified in the License Rules, the License is granted by providing the Licensee with remote access to the System via the Internet. The list and terms of the Licenses are set out in clause 2.5 hereof.
2.5. Acceptance of the Tariffs/Pricing. List and terms of Licenses
2.5.1. In order to acquire Licenses/ Services You need to accept the Tariffs/Pricing in Your Dashboard. By pressing the “Accepted /Accept pricing” button in Your Dashboard You are considered to have read and understand the Tariffs/Pricing, accepted the Tariffs/Pricing in full, without reservations or exceptions (hereinafter – acceptance of the Tariffs/Pricing).
In the event of a delay in acceptance of the Tariffs/Pricing the Licensor has the right to change the Tariffs/Pricing established after Your registration in the Dashboard.
2.5.2. Initial term of Licenses:
2.5.3. The License for the System with SMS functionality is granted to the Licensee for the first time from the moment of acceptance of the Tariffs/Pricing until the end of the month in which the Tariffs/Pricing were accepted.
2.5.4. The License for the System with VB functionality is granted to the Licensee for the first time from the moment of acceptance of the Tariffs/Pricing until the end of the month in which the Tariffs/Pricing were accepted.
2.5.5. The License for the System with WA functionality is granted to the Licensee for the first time from the moment of acceptance of the Tariffs/Pricing and from the date of connecting a specific account of the Licensee, whichever occurs later, until the end of the month in which the account was connected.
2.5.6. The License for the System with PUSH functionality is granted to the Licensee for the first time from the moment of acceptance of the Tariffs/Pricing and from the date of connecting a specific account of the Licensee, whichever occurs later, until the end of the month in which the account was connected.
2.5.7. After the expiration of the initial term of the License, the License is automatically granted a similar License for each subsequent calendar month (new term) if the Licensee complies with the terms of payment established by the Terms, and also taking into account the Licensee’s right to refuse automatic provision of the License – in the manner prescribed by Section X hereof.
2.6. License Rules shall meanthe powers and restrictions on the use of the System by the Licensee, the terms of which are unconditionally accepted by the Licensee in the manner specified in Section III hereof.
The current text of the License Rules is posted here: edna.io/company/legal/licensing-conditions
The License Rules are an integral part of the Terms.
2.7. Licensor/Contractor/edna shall mean MF MANAGEMENT Ltd., which has the right to grant the Licenses (sublicense the System) /provide the Services in accordance with the Terms.
2.8. Licensee/Customer/You shall mean any legal entity, who has accepted these Terms with the Licensor/Contractor/edna on the terms set forth herein.
2.9. Tariffs/Pricing shall meanLicense fees, fees for the Services (cost of the Services), subscription fees for connecting User Account hereunder, which are set in Your Dashboard by the Licensor/Contractor. Tariffs/Pricing identify the License (Licenses) chosen by the Licensee and the functionality of the System corresponding to the License, a set of services that make up the- Services for the Customer. The cost of Services and Licenses is indicated without VAT. VAT is paid by the Customer at the rate in accordance with the applicable legislation. Tariffs/Pricing shall be an integral part hereof.
2.10. Term of the License(s) shall mean the terms set in clause 2.5 hereof.
2.11. Services shall mean the services that the Contractor shall provide via the System at the choice of the Customer in the Dashboard in accordance with the Rules for the provision of the Services and Tariffs/Pricing. A specific set of Services that make up the Services for the Customer is defined in the Tariffs/Pricing in the Customer’s Dashboard.
2.12. Rules for the provision of the Services shall mean the rules for the provision of the Services, including Your registration with Services Provider (connecting User Account / signature for sending messages to the messenger), the terms of warranty technical support, the terms of responsibility (liability) for particular Services, which are separately set here:
- Rules for the provision of the message routing service to the WhatsApp messenger – at https://edna.io/company/legal/routing-conditions-whatsapp;
- Rules for the provision of the sending SMS messages services – at https://edna.io/company/legal/routing-conditions-sms;
- Rules, conditions for the provision of the sending messages services to the Viber Messenger – at https://edna.io/company/legal/routing-conditions-viber;
- The terms of warranty technical support – at edna.io/company/legal/licensing-conditions.
The Rules for the provision of the Services shall be an integral part hereof.
III. Registration in the Dashboard
3.1. In order to use the System features, which you may have access by acquiring Licenses/Services under the Terms, You need to accept the Terms by registering in the Dashboard.
Registration shall be carried out by You on Your own as follows:
3.1.1. You shall send a request to edna in free form to the e-mail of Licensee’s responsible employee, indicating the legal address, bank details, and the currency in which the calculations shall be made.
3.1.2. Based on Your request, edna shall create a unique link for providing You with the Terms and registering You, which it then shall send to You.
3.1.3. You shall follow the link to the edna registration window, fill in the required fields. You undertake to familiarize Yourself with the terms hereof, the link to which is in the registration field, as well as with all other documents referred to herein, which are an integral part of the Terms. Note:You won’t be able to change any of Your data in Your Dashboard on Your own after registration. In order to change any of the data You filled in, You should contact edna’s manager and provide all relevant documents (as scans), confirming Your changed data.
3.1.4. Registration is completed by clicking the “Sign in” button, which confirms Yours full and unconditional consent with the terms hereof and all the documents referenced herein. Finishing the registration shall be consideredacceptance of the Terms. You may use limited Dashboard features after finishing registration before accepting the Tariffs/Pricing under the Terms.
3.2. The Licenses/ Services shall be granted/ provided to You after registration and payment of the License fee and the subscription fee for connecting the User Account by You in accordance with the terms of Sections IV hereof.
3.3. The actual provision of the Services shall be carried out by edna after the granting of the relevant License, provided that set up of the Customer to the specific Services shall be carried out after registration with the Operator / Services Provider, the procedure for such registration is established in the Rules for the provision of the Services. edna cannot guarantee Your registration with the Operator /Services Provider; until the registration of the User Account / signature, the Services shall not be provided.
3.4. You shall have the right to request the provision of the Services in a demo (limited) mode. The provision of the Services in demo (limited) mode, as well as the scope of the tested capabilities of the System, remains at the discretion of edna.
3.5. Your Affiliates are not permitted to use the License or the Services under these Terms that You accepted. Each of Your Affiliates that wants to use the License and the Services must accept these Terms individually and create (register) its own Dashboard.
IV. Fees and payment terms.
4.1. The initial Tariffs/Pricing, which are provided to the Customer in the Dashboard after its registration, are accepted under Section II of the Terms. After the acceptance of the initial Tariffs/Pricing, when changing the Tariffs/Pricing and (or) the procedure for their payment at the initiative of the Licensor/edna/Contractor, Your approval is not required, the change is made by notifying You by the Licensor/edna/Contractor in the manner prescribed by Section X hereof.
4.2. The cost of Services and Licenses is indicated without VAT. VAT is paid by the Customer at the rate in accordance with the applicable legislation.
4.2.1. As part of the functionality of the System the Customer has the ability to track the amount of funds (in the USD/EUR) corresponding to the amount of funds transferred from the Client to the Contractor minus the funds spent by the Contractor as part of the provision of the Services/granting of the Licenses under the Terms (hereinafter referred to as the “Balance“). The Parties consider one calendar month as a Reporting period.
The funds on the Balance that remain unused at the beginning of the next reporting period are transferred to the next Reporting Period automatically.
4.3. The procedure and principles of replenishment and debiting funds from the Balance:
4.3.1. Debiting funds for granting of the Licenses takes place before debiting funds for provision of the Services unless otherwise stipulated in clauses 4.3.2 and 4.3.3 hereof.
4.3.2. The order of debiting funds from the Balance:
a) Cost of License for the System with VB functionality;
b) Cost of License for the System with SMS functionality;
c) The fixed part of the license fee for the System License with Push functionality;
d) The cost of connecting an account for message routing service to WhatsApp messenger;
e) The fixed part of the license fee for the System License with WA functionality;
f) The cost of the service of sending messages to Viber messenger in terms of the cost of message routing;
g) The cost of the service of sending SMS messages in terms of the cost of SMS messaging;
h) Cost of message routing service to WhatsApp messenger;
i) The cost of the service of messaging to Viber messenger in terms of the cost of the Minimum fee;
j) The cost of the service of sending SMS messages in part of the cost of the Subscription fee;
k) The variable part of the license fee for the System License with Push functionality;
l) The variable part of the License Fee for the System License with WA functionality.
4.3.3. If the Customer has no relevant License, the corresponding debiting does not take place; in case the Customer simultaneously has a debt for the License for the System with WA functionality, as well as for the Service of sending SMS-messages and/or messages to the messenger VB, the Customer’s debt for SMS messaging services and/or messages to VB messenger shall be repaid (debited from the Balance) on a priority basis.
4.3.4. Debiting funds from the Balance in accordance with clauses 4.3.2 and 4.3.3 hereof, shall take place: at the moment granting of License(s), provision of a Service unit (sending a message, connecting the corresponding account, etc.), for example: when sending an SMS message, the debiting occurs at the moment the «sent» status is reflected in the Dashboard); on the last day of the payment period set forth in the Terms; on the date set forth for paying for the automatic provision of the relevant License for a new period; on the last day of the Reporting Period. Two or more charges for the same billable event are excluded.
4.3.5. Balance replenishment: The Customer replenishes the Balance on the basis of the independently generated invoice by the Customer in the Dashboard, with (but not necessarily) prior receipt of the corresponding automatic notification in the Dashboard of the requirement to replenish the Balance/about forthcoming debiting of funds from the Balance if the funds on the Balance are enough for payment for Licenses/Services, in which the Customer setting in the amount of payment considering the amount of his obligations to pay the Licenses/Services. Payment for the invoice, generated by the Customer, regardless of the payment purpose, is made in relation to the payment required by the Customer (his debt), according to the procedure for debiting the Balance under the Terms.
4.3.6 The System automatically notifies the Customer notifications in the Dashboard of the requirement to make a payment and/or replenish the Balance, to independently track the spending of the Balance and timely replenish the Balance to avoid its exhaustion. The Customer bears the full risk of untimely replenishment of the Balance, and the Customer has no right to refer to non-receipt of the notification about the necessity of payment and/or replenishment of the Balance as a justification for untimely replenishment of the Balance.
4.3.7 If the funds on the Balance are insufficient and/or the Customer has missed the payment deadline, the Licensor shall have the right to suspend providing Services and/or block Licenses under Section X of these Terms until the Customer credits the unpaid portion of the funds to the current account of the Licensor in accordance with the procedure stipulated in this Section of the Terms.
4.3.8. If the Customer has not acquired the License within 60 days from the date of expiration of the last term of the License then the Terms as related to the granting of the rights to use the System shall be terminated.
4.4. License fees.
4.4.1. Payment of the License fee shall be made by replenishing the Balance under Section III of the Terms. The Licensee shall pay the license fee within the following terms:
4.4.2. The License fee for a License for a System with WA functionality consists of a fixed or fixed and variable parts.
184.108.40.206. After obtaining a License for the System with WA functionality, the Licensee has the right to use the System automatically in an amount not exceeding that established for the fixed part of the License fee, in which case it will be obliged to pay only the fixed part of the License fee.
220.127.116.11. After obtaining a License for the System with WA functionality, the Licensee has the right to use the System automatically in an amount exceeding that established for the fixed part of the License fee. In this case, the Licensee undertakes to pay a License fee consisting of a fixed and a variable part:
- a fixed part of the License fee shall be paid within 5 calendar days from the beginning of the License period;
- a variable part of the License fee shall be paid based on the results of the Reporting period (calendar month), calculated based on the cost of each additional unique active user (AMAU) in excess of the number of unique monthly active users (MAU) established in the fixed part of the License fee — not later than the 5 (fifth) day of the month following the Reporting Period.
4.4.3. The License fee for a License for a System with PUSH functionality consists of a fixed or a fixed and variable parts.
18.104.22.168. After obtaining a License for the System with PUSH functionality, the Licensee has the right to use the System automatically in the amount not exceeding that established for the fixed part of the License fee. In this case, it will be obliged to pay only a fixed part of the License fee.
22.214.171.124. After obtaining a License for the System with PUSH functionality, the Licensee has the right to use the System automatically in an amount exceeding that established for the fixed part of the License fee. In this case, the Licensee undertakes to pay a License fee consisting of fixed and variable parts:
- a fixed part of the License fee shall be paid within 5 calendar days from the beginning of the License period;
- a variable part of the License fee based on the results of the Reporting Period (calendar month), calculated based on the cost of each additional unique active device (AMAD) in excess of the number of unique monthly active devices (MAD) established in the fixed part of the License fee — not later than the 5 (fifth) day of the month following the Reporting Period.
4.4.4. The License fee for a License for a System with SMS functionality shall be within 5 calendar days from the beginning of the License period.
4.4.5. The License fee for a License for a System with VB functionality shall be paid within 5 calendar days from the beginning of the License period.
4.4.6. The Reporting Period when granting the License is equal to the term of the License (specified in clause 2.5. hereof). The license fee for the first incomplete month is calculated in proportion to the actual number of days of the License term.
4.5. Fees for connection of the User Account. You shall pay the subscription fee for connecting the User Account before connection of the User Account by replenishing the Balance under Section IV hereof. In case of Your failure to fulfil the obligation to pay for connection of the User Account, the Licensor grants the License, but has the right to block the License until the obligation to pay for connecting the User Account is fulfilled.
4.6. Fees for the Services
4.6.1. Payment of the Service fee (cost of the Services) shall be made by replenishing the Balance under Section IV hereof. The cost of the Services may include mandatory advance payments, including subscription fees, as well as other cost of the Services.
4.6.2. The Services shall be provided to the Customer only if the funds on the Balance are enough to pay for the Services.
4.6.3. The billing of the Services shall be carried out separately for each User Account/signature allocated to the Customer and shall start from the date of registration of the corresponding User Account/signature.
4.6.4. The subscription fee for an incomplete billing period shall not be subject to recalculation and shall be paid by the Customer in full.
4.7.1. All fees hereunder are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You shall pay all Taxes associated with the Terms, excluding any taxes based on edna’s net income, property, or employees. If You are required by applicable law to withhold any Taxes from payments owed to edna, You shall reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by edna. You shall provide edna with proof of payment of any withheld Taxes to the appropriate authority. Taxes shall be shown as a separate line item on an invoice.
4.7.2. If You are exempt from paying certain Taxes, You shall provide the necessary exemption information as requested by edna or a valid exemption certificate issued by the appropriate authority via e-mail to [email protected]. You shall be exempt on a going-forward basis once edna approves Your exemption request. If the appropriate authority determines, at any time, that You are not exempt from paying any Taxes, You shall promptly pay such Taxes to us, plus any applicable interest or penalties.
4.7.3. The date of fulfilment of Your payment obligation hereunder is the date the funds are credited to the edna’s account. In case of receipt on the basis of edna’s invoice an amount that does not correspond to the size and / or the purpose of the payment specified in edna’s invoice from You, edna has the right to demand You to provide a written clarification, which You must provide no later than within 3 (three) working days from the moment of receipt of edna’s request.
V. Provision of he Services
5.1. The Services shall be provided in accordance with the relevant Rules for the provision of the Services.
5.2. The cost of the Services shall be determined in accordance with the Tariffs/Pricing of the Contractor and shall be set in the Dashboard.
5.3. The fact of Your consent to the terms of payment / changes in the conditions of the cost of the Services shall be confirmed by pressing the “Accept” button in Your Dashboard. In the future, if the Tariffs/Pricing and / or the procedure for their payment are/is amended (changed) at the initiative of edna, Your consent is not required, such amendment (change) shall be made in the manner set in Section X hereof.
5.4. The Reporting period for the provision of the Services shall be 1 (one) calendar month.
5.5. At the request of the Contractor sent to the Customer via Dashboard or in any other way provided for hereby, the Customer undertakes to send paper originals of documents within 10 (ten) business days from the date of receipt of such request.
5.6.1 The scope of integration is determined by the Customer, subject to compliance with the Terms. The use of the System through the services of third parties shall be equal to the use of the System under these Terms. At the same time, the Customer may not disclose the content of the Software or its parts to third parties for integration purposes, perform integration in violation of the Terms without the consent of the Licensor.
VI. Ownership, Customer Data, and Confidentiality
6.1.1. As between the Parties, edna exclusively owns and reserves all right, title, and interest in and to the Services, the documentation, edna’s Confidential Information (as defined below), and any data that is derived from the use of the Services that does not directly or indirectly identify You, or any natural person and includes (a) data such as volumes, frequencies, bounce rates and Service performance data and (b) subject to any restrictions under applicable laws, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify You, or any natural person, and any feedback or suggestions provided by You regarding the Services. As between the parties, You exclusively own and reserve all right, title, and interest in and to Your Confidential Information, and Customer Data, subject to edna’s rights to process Customer Data in accordance with these Terms.
6.2. Customer Data
6.3.1. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
6.3.2. Except as otherwise authorized by Disclosing Party in writing, Receiving Party shall not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in edna’s case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfil its obligations under these Terms. Receiving Party is responsible for its Representatives’ compliance with this clause 6.3 hereof. Representatives shall be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this clause 6.3. Receiving Party shall protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
6.3.3. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party shall provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
6.3.4. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this clause 6.3 hereof and that, in the event of an actual or threatened breach of the provisions of this clause 6.3 hereof, the non-breaching party shall be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6.4. Use of Marks
6.4.1. You grant edna the right to use Your name, logo, and a description of Your business activities to refer to You on edna’s website, earnings releases and calls, or marketing or promotional materials, subject to Your standard trademark usage guidelines that You expressly provide to edna.
VII. Representations and Warranties
7.1. You represent and warrant that You have provided, and shall continue to provide, adequate notices and have obtained, and shall continue to obtain, the necessary permissions and consents to provide Customer Data to edna for use and disclosure pursuant to clause 6.2 hereof (Customer Data).
7.2. edna represents and warrants that the Services perform materially in accordance with the applicable Rules for the provision of the Services and relevant documentation. edna’s sole obligation, and Your sole and exclusive remedy, in the event of any failure by edna to comply with this clause shall be for edna to, at its option, (a) remediate any material non-conformity.
7.3. Edna represents and warrants that it shall take reasonable commercial efforts to ensure that the System will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, Your sole and exclusive remedy, and edna’s sole obligation, is to fix System promptly upon notice.
7.4. Each party (a) warrants that it shall conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You shall promptly notify edna in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the License/Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by edna. You represent that You have obtained and warrant that You shall continue to obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it is not on any government prohibited, denied, unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You shall (a) immediately discontinue Your use of the License/Services if you are placed on any Sanctions List. You represent that You have not and warrant that You shall not export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in these Terms, either party may terminate these Terms immediately upon written notice to the other party if the other party is in breach of its obligations in this clause.
The scope of integration is determined by You, taking into account compliance under these Terms. The use of the Licensor’s System through third-party services is equivalent to the use of the System and Services. At the same time, You have no right to disclose the content of the edna Software or its parts to third parties for integration purposes, to integrate in violation of these Terms without the consent of the Licensor.
8.1. Indemnification by edna
8.1.1. Scope of Indemnification. edna shall defend You from and against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that edna’s granting of License or provision of the Services infringes or misappropriates such third party’s intellectual property rights (“Infringement Claim”). edna shall indemnify You from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against You or for settlement amounts approved by edna for an Infringement Claim.
8.1.2. Infringement Options. If edna’s granting of License or provision of the Services has become, or in edna’s opinion is likely to become, the subject of any Infringement Claim, edna may at its option and expense: (a) procure the right to continue granting the License or providing the Services as set forth in these Terms; (b) modify the License/Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the License/ Services that are the subject of any Infringement Claim.
8.1.3. Limitations. edna shall have no liability or obligation under clause 8.1 hereof with respect to any Infringement Claim (a) arising out of Your use of the License/Services in breach of these Terms; (b) arising out of the combination, operation, or use of the License/Services with other licenses, applications, portions of applications, products, or services where the License/Services would not by themselves be infringing; or (c) arising from License/Services for which there is no charge.
8.2. Indemnification by You
8.2.1. You shall defend edna, edna’s officers, directors, employees, and Affiliates (collectively, “edna Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against an edna Indemnified Party by a third party alleging or arising out of Your breach of Your obligations hereunder. You shall indemnify edna from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against an edna Indemnified Party.
8.3. Conditions of Indemnification.
8.3.1. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) shall promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice shall not relieve Indemnifying Party of its obligations under this Section VIII except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party shall have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party shall reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section VIII at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defence of any Claim. Notwithstanding anything to the contrary in this Section VIII, Indemnifying Party shall not settle any Claims for which it has an obligation to indemnify pursuant to this Section VIII admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
8.4 Exclusive Remedy
8.4.1. This Section VIII states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
IX. Limitation of Liability
9.1. LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE LICENSE/SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN CLAUSE 9.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND CLAUSE 9.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN CLAUSES 9.1 AND 9.2 HEREOF DO NOT APPLY TO (a) YOUR BREACH OF YOUR OBLIGATIONS HEREUNDER; (b) YOUR BREACH OF SECTION IV (FEES AND PAYMENT TERMS. ACCEPTANCE OF THE TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION VIII (INDEMNIFICATION).
9.4. THE PROVISIONS OF THIS SECTION IX ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION IX IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
X. Modification, termination and survival of the Terms
10.1. These Terms could be amended, updated or changed from time to time. edna reserves the right to unilaterally change the terms hereof, including but not limited to, payment procedure, Tariffs/Pricing as well as the functionality of the System. In case of any amends, updates or changes edna shall notify You of any changes to the Terms in electronic form in any way, including but not limited to through the Dashboard and / or e-mail specified in the Dashboard (“change notification”). The Terms can be amended in whole or in part. You undertake to independently monitor any amendments in the Terms.
10.1.1. Any amends, changes or updates hereto shall come into force as follows:
10.1.1.1. When the text of the Terms is amended, gets updated – from the date of amended, updated Terms are uploaded, unless another date of entry into force of such changes, updates not defined additionally in the Terms or the change notification;
10.1.1.2. When the Tariffs/Pricing are amended – from the date specified in the change notification;
10.1.1.3. When the Rules for the provision of the Services are amended – from the moment the changed relevant Rules for the provision of the Services are uploaded to the sections specified in clause 2.12. hereof, unless another date for the entry into force of the changes is additionally determined in the Terms or the change notification;
10.1.1.4. When the License Rules are amended – from the moment their amended text is uploaded at https://edna.io/company/legal/licensing-conditions, unless another date for the entry into force of the changes is additionally determined in the Terms, those Rules or the change notification.
10.1.2. You can request edna’s manager to provide You with the old version of the Terms by contacting edna’s manager via email.
10.2. You have the right to initiate the suspension of the provision of Services for a specific Reporting period by contacting the Contractor through the Dashboard, but the Contractor reserves the right to refuse suspension.
10.3. In the event that the Licensee shall not pay the License fee in the manner and terms established in the Terms, the Licensor has the right at any time to unilaterally block / suspend the term of the provided License, with notifying the Licensee in electronic form in any way, including but not limited to through the Dashboard and / or e-mail specified in the Dashboard (“License suspension notification”) from the date specified in License suspension change notification. The term of the License shall be suspended until the date following the date of fulfilment of the Licensee’s obligation to pay the License fee in full, while the Licensee undertakes to pay the License fee, including for suspended days as if for the days of the License validity (days of actual use of the granted License) and after the renewal of the License, its general term shall not be extended for the period of suspension.
10.4. If You violate the terms of payment of the License fee and / or payment of the subscription fee and the Licensor suspends the License, the provision of the Services shall be suspended as well, regardless of Your proper fulfilment of payment obligations for provision of the Services, from the date of the License suspension, unless another date is set in the License suspension notification. The License shall be suspended until the date following the date on which the Licensee fulfils the obligation to pay the License fee in full, while the Licensee undertakes to pay the License fee, including for the days of suspension as for the days of the License validity (days of using the granted License) and after the License is unsuspended, the total period of its validity shall not be extended for the period of suspension.
10.4.1. In case of violation by You of the terms of payment of the License fee and suspension of the License by the Licensor, the provision of the Services shall be suspended, regardless of the fact of the proper fulfilment by You of the payment terms for the cost of the Services, from the date of suspensions of the License, unless another date is set in the License suspension notification.
10.5. edna reserves the right to unilaterally terminate the Terms due to Your violation of the terms hereof.
10.6. You have the right to cancel the Services and/or automatic prolongation of the License for by sending a written notice edna’s e-mail address: [email protected] as follows:
– Cancellation of the Services and / or refusal to renew the License at Your initiative is possible only from the 1st day of the calendar month. You shall be obliged to notify edna about this 10 (ten) days before the start of the new calendar month from which it is planned to terminate the Services and / or terminate the License renewal. If the notification arrives later, the termination of the Services and / or the termination of the License renewal shall be possible only after 1 (One) full calendar month after its receipt, which is payable by the Licensee on general terms and in full in accordance with the procedure established hereby.
10.6.1. Your refusal to renew the License means the simultaneous refusal of the Services (System functionality), the right to which You received when renewing the License, even if this is not indicated in edna’s notification.
10.6.2. Cancellation of the License is not allowed. Only refusal (full or partial) of the Services (System functionality) is possible, the right to which You received with the granting of the License.
10.7. Upon termination of these Terms, the terms of this clause 10.7 hereof, and the terms of the following Sections will survive (i.e. still apply): Section IV (Fees and Payment Terms. Acceptance of the Terms), Section VI (Ownership, Customer Data, and Confidentiality), Section VII (Representations and Warranties), Section VIII (Indemnification), Section IX (Limitation of Liability), and Section XI (General terms).
XI. General terms
11.1. No Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under these Terms shall constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.
11.2. Assignment. You will not assign, delegate, or otherwise transfer these Terms in whole or in part, without edna’s prior written consent. Any attempt by You to assign, delegate, or transfer these Terms without edna’s consent will be null and void. edna may assign, delegate, or otherwise transfer these Terms, in whole or in part, without Your consent. Subject to this clause, these Terms shall be binding on each party and each party’s successors and assigns.
11.3. Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labour costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
11.4. Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
11.5. Notices. Notices to edna under these Terms will be provided via email to [email protected]. Notices to You under these Terms will be provided via email to the email address specified in Your Dashboard.
11.6. Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labour dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of such cause.
11.7. Dispute Resolution. In the event of a dispute, claim, or controversy arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives shall engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence binding arbitration under applicable arbitration rules and procedures. Each party shall be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Cyprus.
11.8. Governing Law and Venue. Unless unenforceable under applicable law, these Terms will be governed by and interpreted in accordance with the laws of Cyprus, without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in clause 11.7 hereof (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to these Terms or the License/Services will be instituted in the courts of Cyprus, and each party consents to the personal jurisdiction of these courts.
11.9. Class Action Waiver. Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other edna’s Licensees/Customers. If a court decides that this clause 11.9 is not enforceable or valid, then this clause 11.9 will be null and void. But, the rest of these Terms will still apply.
11.10. Entire Agreement. Except as provided in these Terms and any exhibits or attachments, or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. The parties agree that clause 6.3 (Confidentiality) hereby supersedes and prevails over all prior, contemporaneous, and future non-disclosure or confidentiality agreements between the parties in their entirety. No oral or written information or advice given by edna, its agents, or edna’s employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms.
XII. Special terms
12.1. These special terms (hereinafter – Special terms) shall come into force from the moment their text is uploaded at: https://edna.io/company/legal/terms-and-conditions and apply only to the Customers, that simultaneously comply with the conditions in clauses 12.2-12.4. of the Special terms (hereinafter referred to as “Current Customers“):
12.2. are Customers under the Agreement/Terms available at: https://im.edna.io/public/docs/wa-usd-agreement.html (hereinafter – Previous Agreement);
12.3. for whom the Previous Agreement was valid at least during the period from the effective date of the Special Conditions (specified in clause 12.1. of the Special terms) until the date of sending to the Customer the notice of termination of services under the Previous Agreement (hereinafter – Termination Notice);
12.4. to whom edna has sent the Termination Notice setting the date of termination of the Previous Agreement. The Termination Notice is an integral part of the Terms for the Current Customers;
12.5. The Terms apply to the Current Customers, subject to the modifications and exceptions set forth in the Special terms. In the event that the Special terms conflict with the Terms, the Special Terms shall prevail.
12.6. The provisions of clause 2.5.1. of the Terms shall not apply to the Current Customers. The Current Customers shall be deemed to have accepted the Tariffs/Pricing from the start of debiting funds from the Balance under the Terms.
12.7. The provisions of clause 3.1. of the Terms shall not apply to the Current Customers. Registration in the Dashboard and access to Dashboard under the Terms shall be provided to Current Customers by transferring Current Customers’ data from the user account (under the Previous Agreement) from the date specified in the Termination Notice or from initial term of the license for the first reporting period under the Terms.
12.8. The provisions of clause 4.5. of the Terms shall apply to the Current Customers according to the Termination Notice. Unless otherwise specified in the Termination Notice, the provision of the Licenses/Services shall begin without the need to pay the subscription fee for connecting the User Account (specified in clause 4.5. of the Terms). Abovementioned does not release the Current Customers from obligation to pay a subscription fee for connecting the User Account according to the Terms. The billing of the Services shall start immediately from initial term of the license for the first reporting period specified in the Termination Notice or specified in clause 2.5.2. hereof.
12.9. The license to the System shall be granted to the Current Customers on the basis of debiting the funds from the Balance under the Terms in the amount necessary for the first payment according to the Tariffs/Pricing. The license fee for the first reporting period shall not be subject to recalculation and shall be paid by the Current Customers in full.
12.10. Acceptance under the Special terms shall be as follows:
12.10.1. for the Current Customers with not enough funds on the Balance for the first payment according to the Tariffs/Pricing – the date when the Current Customer replenishes the Balance for the amount of funds necessary for the first payment according to the Tariffs/Pricing but not later than March 1, 2023;
126.96.36.199. The debiting may be carried out later than March 1, 2023, with an overdraft, which we may set for Current Customers, then the funds for the first payment according to the Tariffs/Pricing shall be debited from Balance as a post-payment by replenishing the Balance under New Agreement. The acceptance in this case takes place at the moment of the first use of the Services under New Agreement (sending a message, connecting the corresponding account, etc.).
12.10.2. for the Current Customers with enough funds on the Balance for the first payment according to the Tariffs/Pricing – the date of debiting the funds from the Balance under the Terms in the amount necessary for the first payment according to the Tariffs/Pricing but not later than March 1, 2023;
12.10.3. The amount of funds necessary for the first payment according to the Tariffs/Pricing includes both (i) Current Customers’ unspent funds on the balance formed under the Previous Agreement, transferred to the Balance under the terms of the Previous Agreement, and (ii) the funds on the Balance replenished by the Current Customer under Section IV hereof.
12.10.4. After any Current Customer’ actions in accordance with clauses 12.10.1.-12.10.2. hereof, whatever applies, the Terms shall be considered to have been accepted by the Current Customer as follows, whichever occurs first (hereinafter – acceptance of the Terms under the Special terms):
(i) Current Customer considered to have read and understand these Terms, accepted these Terms in full, without reservations or exceptions;
(ii) Current Customer represent and warrant that Current Customer have the right, power, and authority to enter into these Terms;
(iii) Current Customer are legally bound by these Terms, which form the legal agreement between Current Customer and the Licensor from the moment of acceptance of the Terms;
(iv) If Current Customer disagree with any terms hereof, Current Customer are not entitled to use the License and use the Services.
12.11. If, from the termination date of the Previous Agreement specified in the Termination Notice, the funds on Current Customers’ Balance are not enough for payment for Licenses/Services, edna shall be entitled to grant Licenses/provide Services in accordance with the Tariffs/Pricing and the Current Customers shall pay for the Licenses/Services under the Terms on the date specified in the Termination Notice.
12.12. The Balance of the Current customers shall be replenished both: (i) by replenishing the Balance under Section IV hereof; (ii) by transferring Current Customers’ unspent funds on the balance formed under the Previous Agreement on the terms of the Previous Agreement.
12.13. In case the Current Customer fails to pay the license fee for the first reporting period specified in the Termination Notice under the Special terms and the Termination Notice, edna reserves the right to unilaterally terminate or suspend the licenses, block the Current Customer’s access to the Dashboard in the System and suspend the provision of the Services starting from the date specified in the Termination Notice.
12.14. The Special terms shall apply until March 31, 2023, after which they shall cease to apply.
 The License for the System with WA functionality is granted and paid by the Licensee for each Licensee’s User account. The License for the System with PUSH functionality is granted and paid by the Licensee for each Licensee’s User account.
 The Licensor notifies the Licensee about connecting the User Account in any way, incl. but not limited to through the Dashboard and / or e-mail specified in the Dashboard.
 The payment condition for connecting the User Account shall be relevant if the Licensee needs to acquire License for the System with WA functionality or License for the System with PUSH functionality.
 Additional Unique Monthly Active User (AMAU) – MAU in excess of the amount included in the tariff specified in the package.
 Unique Monthly Active User (MAU) shall mean chat communication with a unique user during a calendar month. A unique user is identified by a phone number.
 A device is considered active if it accessed the System at least once during a calendar month. The device on which the Licensee’s Software is installed accesses the System each time it’s started by the Licensee’s Software user / the Licensee’s Client.
 For WhatsApp messenger Services and for PUSH, the Licensee needs registration of User Account.
 For WhatsApp messenger Services and for PUSH, the Licensee needs registration of User Account; for Viber messenger Services, the Licensee needs registration of signature. The requirements are set out in the relevant Rules for the provision of the Services.
 This condition applies only to the Service of sending HSM messages via the WhatsApp messenger and messages via the Viber messenger.