360dialog Terms of Service

1. WABA MSISDNs

1.1 Client hereby requests WABAs for the following MSISDN

1.2 The approval of each WABA is at the discretion of WhatsApp.

2. Compliance with WhatsApp Terms and Statutory Law

2.1 Client hereby warrants and represents to use the WABAs strictly in accordance with the applicable WhatsApp Business Solution Terms https://www.whatsapp.com/legal/business-solution-terms, the Facebook Client Terms for WhatsApp
https://app.360dialog.io/lp/consent/facebook-client-terms-for-whatsapp
Meta Hosting Terms for Cloud API
https://www.facebook.com/legal/Meta-Hosting-Terms-Cloud-API
as well as all other applicable WhatsApp terms, guidelines and policies, most importantly
https://www.whatsapp.com/legal#terms-of-service,
https://www.whatsapp.com/policies/business-policy,
https://www.whatsapp.com/policies/commerce-policy/,
https://www.whatsapp.com/privacy and
https://www.whatsapp.com/legal/#privacy-policy , altogether the “WhatsApp Terms”.

2.2 Client acknowledges and agrees that WhatsApp may modify the WhatsApp Terms and/or release additional terms, guidelines, and policies, and upon their release, such additional terms, guidelines, and policies shall become part of the WhatsApp Terms.

2.3 WABA(s) are for use by Client only. Client represents and warrants that Client will not distribute, sell, resell, rent, or otherwise grant access to the WABA(s) to any third party for any purposes outside the scope of this Agreement.

3. Scope of Services

3.1 360dialog grants Client the right to use 360dialog’s Services for the purposes of this Agreement.

3.2 360dialog has no influence over the WhatsApp network and the services provided by WhatsApp. Therefore, 360dialog assumes no liability regarding the operations, availability, and available features of the WhatsApp Network and the WhatsApp Business Services.

4. Prices and Billing

4.1 The license fee for hosting the WhatsApp Business API is fixed per number per month. The price is selected when registering the number.

4.2 Payment responsibility (Partner or Client) is defined at the moment of registering a license.

4.3 For all licenses, the following conditions apply:

4.2 License fees will be billed based on calendar month; pro rata where the provision of Services starts on a day other than the first day of a month.

4.3 All license fees are invoiced at the beginning of the corresponding month and charged immediately. License fees will not be billed before deployment of client’s hosting stack.

4.4 Each License may be terminated by either Party to the end of a calendar month by giving 30 days prior notice in text form (email or online cancellation form), counted from the end of the current term.

4.5 All fees are stated net and may be subject to statutory VAT.

4.6 On premise license fees include 5 Gigabyte (GB) of data storage. Once the 5GB are surpassed an extra charge of 0,10 EUR/USD may be charged.

4.7 All storage fees are invoiced at the beginning of the corresponding month and are stated net and may be subject to statutory VAT.

4.8 WhatsApp's Conversation costs are not included in the monthly license fee and are charged according to the WhatsApp price list for your region as stated under
https://developers.facebook.com/docs/whatsapp/pricing/conversationpricing/
Such conversation costs may be subject to prepayment.

4.9 In case of partner-paid model, the Client acknowledges its obligation to pay for the conversation costs incurred. This obligation applies directly to 360dialog.The partner is responsible for the processing of these payments, however, in the event of non-payment by the Client to the partner, 360dialog reserves the right to claim the costs incurred directly from the Client.

4.10 Payment processing fees apply to all usage charges and may vary by payment method and country.

4.11 360dialog reserves the right to use a third party provider to provide payment processing services or to supplement services and transactions. More info can be found in the DPA.

4.12 360dialog reserves the right to adjust the prices to cover increased or decreased staff costs and other operational costs, if reasonable not more than once per year. Such increases will be announced with at least six-weeks’ notice in writing or text form. If Clientdoes not agree with a fee adjustment, Client may terminate the Agreement to the day of the increased prices becoming effective

4.13 If and insofar as prices include the applicable fees and remunerations charged by WhatsApp (the "WhatsApp Fees"), and if and insofar such WhatsApp Fees be increased or reduced by WhatsApp, 360dialog may reduce or increase the prices accordingly. Upon request by Client, 360dialog will prove to Client such increase or reduction of the WhatsApp Fees.

4.14 According to the WhatsApp Terms, Clientis entitled to migrate WABA(s) to a different WABA Business Solution Provider. Any efforts required by 360dialog in connection with such request are subject to the 360dialog Pricelist, which Client may request at any time.

5. Use of the Services; Limitations; Prohibited Use

5.1 Client's access to the 360dialog API and the WhatsApp APIs is limited to the ways described in the applicable API documentation. This includes to always use the client IDs that were assigned to Client (as well as any other assigned developer credentials), and to never mask identity. Developer credentials (such as passwords, access keys, and client IDs) are intended to be used only by Client. It is Client’s responsibility to keep credentials confidential and to make reasonable efforts to prevent other API clients from using Client’s credentials. Developer credentials may not be embedded in open source projects.

5.2 Client agrees to, and will not attempt to circumvent, the limitations documented. Any use of the Services beyond these limits will be subject to a prior and separate agreement with 360dialog.

5.3 Client must not modify the Services in any way, particularly, without limitation, Client must not reverse engineer, adapt, decompile, disassemble, or otherwise attempt to access or discover the source code of the 360dialog API.

5.4 Client particularly acknowledges and agrees to comply with the following requirements of WhatsApp (whereas the term "Company" refers to Customer, and "we" refers to WhatsApp): "Our Business Services are not intended for distribution to or use in any country where such distribution or use would violate local law. We reserve the right to limit our Business Services in any country at any time. Company will comply with all applicable U.S. and non-U.S. export control and trade sanctions laws ("Export Laws"). Company will not, directly or indirectly, export, re-export, provide, or otherwise transfer our Business Services: (a) to any individual, entity, or country prohibited by Export Laws; (b) to any individual or entity, or anyone owned or controlled by any individual or entity, on U.S. or non-U.S. government restricted parties’ lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications, without the required government authorizations. Company will not use or download our Business Services: (i) if it is located, or owned or controlled by anyone located, in a restricted country; (ii) if it is currently listed, or owned or controlled by anyone listed, on any U.S. or non-U.S. restricted parties’ list; (iii) for the benefit or on behalf of a restricted country or anyone listed on any U.S. or non-U.S. restricted parties’ list; or (iv) for any purpose prohibited by Export Laws. Company will not disguise its location through IP proxying or other methods."

5.5 360dialog provides, with every 360dialog API account, access and login credentials to the 360dialog Hub to administrate all WhatsApp and 360dialog API messages.

5.6 360dialog may make available or provide to Client updated versions of Services. Client agrees to integrate and apply the then current version of the Services. 360dialog shall not be responsible for any issues that are caused by use of outdated versions of the Services.

5.7 360dialog reserves the right to monitor compliance with the Terms. Client agrees not to interfere with such monitoring.

5.8 360dialog reserves the right to refuse Client’s registration in case of suspected fraud.

5.9 Some of the software required by or included in the 360dialog WhatsApp API may be offered under an open-source license. Open-source software licenses constitute separate written agreements. To the limited extent the open-source software license expressly supersedes these Terms, the terms of the open-source license sets forth Client’s agreement with 360dialog for the use of the applicable open source software.

6. Content

6.1 All texts, music, videos, images, software, and other media ("Content") that may be transmitted through the 360dialog WhatsApp API is the sole responsibility of the party making it available. Before using such Content, it is Client’s responsibility to secure sufficient rights. 360dialog does not act as a licensor of such Content unless expressly agreed otherwise in writing as part of a separate agreement.

6.2 Likewise, Client is responsible for all Content that Client transmits using the Services. Client grants 360dialog the irrevocable, royalty-free right to use the Content limited to the purpose of performing under this Agreement.

7. Technical Integration and Data Processing

7.1 360dialog only processes but does not store or back up data after the data is handed over through the 360dialog API. 360dialog cannot be held responsible for any loss of data due to Client’s failure to receive, store or backup the data.

7.2 Client will always have in effect and maintain administrative, physical and technical safeguards that: (i) meet or exceed industry standards given sensitivity of user data, (ii) are compliant with applicable Law (including data security and privacy laws, rules and regulations), and (iii) are designed to prevent any unauthorized access, use (including any use in violation of this Agreement), processing, storage, destruction, loss, alteration or disclosure of user data (each, an "Unauthorized Data Use"). Following the discovery of any suspected or actual Unauthorized Data Use, Client will: immediately notify 360dialog of such incident, and promptly take appropriate actions in compliance with applicable laws to address and remedy such incident (including notifying the affected users in compliance with applicable laws and taking any other actions reasonably requested by 360dialog or WhatsApp). Such notice must describe the nature of the Unauthorized Data Use, when the Unauthorized Data Use occurred, the effect on us and/or our users, and Client’s corrective action to respond to the Unauthorized Data Use. Client acknowledges and agrees that all information provided will be shared with WhatsApp, and Client expressly approves of such data sharing.

7.3 If, under any circumstances, personal data would be provided for the purpose of processing to 360dialog, then 360dialog will act as a data processor. Such processing of personal data will be subject of a separate data processing agreement between the data controller and 360dialog (the "DPA"). With the registration the Client accepts our DPPagrees to conclude the DPA.

7.4 Data transmissions via the internet cannot entirely be protected from access by third parties. While 360dialog does apply industry standard measures to safeguard data, 360dialog does not assume any liability for access by third parties outside the control of 360dialog.

8. Agreement with Partner

In case Client uses services of a third-party system integrator or independent software vendor or provider of messaging services ("Partner"), Client agrees and acknowledges that 360dialog will have to conclude a separate contractual relationship with such Partner. Client agrees and acknowledges that 360dialog may decide to terminate such contractual relationship with Partner in cases of breach of such agreement by Partner. 360dialog shall inform Client of such termination. In such cases, Client will have to migrate to another Partner and transfer necessary data (API keys) to such new Partner or remigrate the messaging services in-house. Should Client not be willing or able to do so, this Agreement shall be subject to termination by 360dialog effective to the effective date of the termination of the contract with Partner.

9. Term and Termination

9.1 This Agreement is effective from the date the Parties concluded the Agreement (“Effective Date”). Either Party may terminate this Agreement with thirty (30) days' notice to the end of a month.

9.2 This Agreement shall supersede all previous contractual relationships of similar nature between Partner and 360dialog and only this Agreement applies.

9.3 360dialog reserves the right to suspend or terminate this Agreement at any time, (a) if Meta revokes the status of 360dialog as a SP; or (b) at the request of Meta such requests being at the discretion of Meta; or (c) if due to a breach or repeated breaches by Partner or its clients of the applicable terms the status of 360dialog is at risk. (d) payment delays of more than 30 days.

10. Limitation of Liability

10.1 The liability of 360dialog is unlimited in cases of damages
(1) resulting in a loss of life, bodily injury, or bodily harm due to a breach of duty by 360dialog, a legal representative, or agent;
(2) caused by the absence of any condition guaranteed; or
(3) caused intentionally or through gross negligence.

10.2 In cases of slight negligence, 360dialog shall only be liable if a Material Obligation (as defined below) was breached. “Material Obligations” means all obligations (a) whose fulfilment is essential to the proper implementation of the Agreement and (b) on the fulfilment of which a contractual party is regularly able to rely. In such cases, the liability of 360dialog shall be limited to foreseeable damages that can typically be expected to occur within the scope of the contractually agreed services.

10.3 The liability of 360dialog for loss of data shall be limited to those costs and efforts that a party would typically incur in connection with the recovery of the data when having regularly and reasonably created backups of its data.

10.4 In cases of Force Majeure, i.e. events beyond a party’s reasonable control which a party cannot overcome by the exercise of reasonable diligence, the Agreement including the affected Fees will be suspended to the extent they are affected. This shall particularly apply to fires, explosions, floods, war, mutinies, blockades, embargos, and labor disputes. The hindered party will inform the other party accordingly without any undue delay.

10.5 In the event of property or financial damages due to slight negligence, 360dialog’s maximum liability under this Agreement shall be equal to the value of all Fees paid to 360dialog in the three (3) months preceding the claim.

11. Indemnification

Client will defend and indemnify 360dialog, and its affiliates, directors, officers, employees, and users, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:
(1) Client’s misuse of the 360dialog APIs;
(2) Client’s violation of these Terms or the WhatsApp Terms; and
(3) any Content or data routed into or used with the 360dialog API by Client or those acting on Client’s behalf;
(4) infringement of any rights of any third party and/or applicable laws and regulations.

12. Miscellaneous

12.1 360dialog may at any time transfer this Agreement to any affiliated company by notifying Client in writing 10 (ten) business days prior to the date of such transfer.

12.2 This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the UN Convention on Contracts for the International Sale of Goods and conflicts-of-laws rules being excluded.

12.3 The place of performance and venue is Berlin, Germany. However, 360dialog reserves the right to use any other legally admissible venue.

12.4 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to applicable laws, then the remaining provisions of this Agreement, if capable of substantial performance, shall remain in full force and effect.

12.5 These Terms can be updated by 360dialog at any time. Changes become effective upon the date that we publish such changes. To the extent that we are required by applicable law to notify the Partner in advance of implementing these changes, we will provide sufficient advance notice. Continued use of our Service means acceptance of the changes.