Tencent Cloud SMS Services Terms of Service
最終更新日:2025-12-08 16:24:31
Welcome, and thank you for your interest in our short messaging services (“SMS”), known as Tencent Cloud SMS Services, which includes the international verification code messaging services, industry notification messaging services, platform messaging services, member marketing message services, voice verification codes, voice notifications and other functions, and APIs and gateways for sending messages, gateway operation support and other services (collectively, the “Services”).
These Terms of Service are a legally binding contract between you and Tencent regarding your use of the Services, and are governed by and incorporate the Tencent Cloud Terms of Service. In the event of any inconsistency or conflict between any provision of these Terms of Service and the Tencent Cloud Terms of Service, these Terms of Service shall prevail.
If you use any other products or services offered by Tencent Cloud, please refer to the Tencent Cloud Terms of Service instead.
For the purposes of these Terms of Service, the defined terms shall have the same meanings as set forth in the Tencent Cloud Terms of Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING the Terms of Service, and the SMS Service Level Agreement and any other region-specific terms (collectively, the “Terms”). The Terms do not include the Privacy Policy or the Cookies Policy (both of which are also available here). Please see our Privacy Policy, Cookies Policy and Data Processing and Security Agreement for further information regarding our use of your Personal Data (as defined in the Data Processing and Security Agreement) submitted to or via the Services. If you are not eligible, or do not agree to the Terms, then you do not have Tencent’s permission to use the Services. YOUR USE OF THE SERVICES, AND TENCENT’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY TENCENT AND BY YOU TO BE BOUND BY THESE TERMS.
1. THE SERVICES AND APPLICATIONS
(a)The Services include: (a) the documentation for the Services (as may be updated from time to time) in the form generally made available by Tencent to its customers for use with the Services; and (b) the APIs, SDKs, mobile applications, and Software provided by Tencent in connection with the Services.
2. CONTRACTING ENTITY; GOVERNING LAW
(a) The contracting entity and governing law under the Tencent Cloud Terms of Service is the (i) Tencent entity with which you are contracting under these Terms; and (ii) the governing law that applies to these Terms and your use of the Services, respectively.
(b) The country specified in your registration information may cause additional or differentt terms to apply, as follows. For example, if your use of the Services is subject to consumer protection regulations as determined under applicable laws, additional terms apply, as set forth in other region specific terms. In addition to the above, additional or different terms may apply to your use based on applicable local laws.
3. USE OF SERVICES
(a) Sender ID. If you request to obtain a set number (or numbers, where permitted) to be shown in the sender identification field of the message termination messages (“Sender ID”), you may be required to submit relevant information and documentation. We will review your request for the registration and approval of your Sender ID in accordance with the relevant policies and regulations applicable in your jurisdiction. You may refer to our policy here for further details.
(b) Suspension of Services. If you become aware or reasonably suspect that any use of the Services, any application (including an End User’s use of an application), User Data, or SMSs violate:
(i) these Terms;
(ii) any laws or regulations in your country or jurisdiction; or
(iii) any policies of mobile network operators and/or third party messaging platforms (where you elect for the Services to be provided on such third party messaging platforms),
You will immediately suspend the application, remove the User Data, and suspend access by End Users.
Tencent may also immediately and unilaterally suspend, restrict and/or disable the application and your Account until the violation is remediated to Tencent’s satisfaction in the scenarios set out in Section 3(c)(i)-(iii) above.
(c) In the event that Tencent determines at its sole discretion that your or your End User’s use of the Services could: (1) disrupt the Services; (2) disrupt use of the Services by a third party; (3) disrupt the Tencent network or servers used to provide the Services; (4) allow unauthorized third party access to the Services; (5) otherwise pose a security risk or threat or result in any legal or regulatory liability to Tencent, then Tencent or its Affiliates may immediately and without prior notice to you, restrict or suspend your Account or the offending application or End User account, to the extent required to address such concern. You agree that you are responsible for all Fees incurred or payable during such period of restricted or suspended use.
(d) Mobile Networks and Third Party Messaging Platforms. You agree and acknowledge that our system is connected to (i) mobile network operators’ networks through their SMS centers, mobile switching centers or other similar networks; and (ii) third party messaging platforms, where you elect for the Services to be provided on such third party messaging platforms. Such networks and platforms are not within our control. We shall provide such Services on an as-is basis, pursuant to applicable conditions and policies of such mobile network operators and/or third party messaging platforms, as applicable.
(e) Service Modification or Discontinuation. Tencent may discontinue or make any changes to the Services (or any portion thereof) at any time without incurring liability to you. Tencent may choose to, without limitation, discontinue, limit, restrict, change or remove the Services, any Service component, or availability of the Services (or any portion or component thereof) in any specific Service Region, territory or industry sector or field of business. The Services also involves working with mobile networks worldwide and is subject to applicable laws, guidelines, regulations and/or codes of practices that are applicable from time to time by regulators or mobile network operators in the various Service Regions. In the event of introductions or changes to such applicable laws, guidelines, regulations and/or codes of practices, Tencent may also, and its sole discretion, discontinue or make any changes to the Services (or any portion thereof) at any time without incurring liability to you.
(f) If Tencent discontinues or makes any changes to the Services that would materially decrease the functionality of those Services, Tencent will use commercially reasonable efforts to inform you of the change with reasonable advance notice before it goes into effect, provided that you have subscribed to be informed about those changes. Tencent may make the change, and will not be obligated to provide notice, if the discontinuation or change is necessary to address an emergency or threat to the security or integrity of the Services or Tencent, comply with or respond to litigation, address Intellectual Property Rights concerns, or comply with the law or government requests. Tencent may provide periodic updates to the Software or Services from time to time (“Updates”). Tencent may also make new features or functionality available from time to time through the Services and add new services to the Services from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon your agreement to additional requirements.
(g) Security and Privacy. Tencent’s security and privacy practices are available in the Additional Terms, the Privacy Policy and the Cookies Policy. You shall configure and use the Services in a way that meets your security requirements. By using the Services, you also agree that we retain the right to review, audit, scan and redact messages as part of the Services in order to identify and remove any illegal or sensitive content, including but not limited to content classified as such under applicable laws and regulations and as set out in our Acceptable Use Policy, as part of the messages you have drafted to be delivered to End Users. We also have the right to reject the sending of any messages which we deem to be illegal, contain any sensitive content, or which we view may pose regulatory or legal risks.
4. TECHNICAL SUPPORT AND SERVICE LEVELS
(a) SLAs. Tencent will use commercially reasonable efforts to provide the Services in accordance with the service level agreement (“SLA”) set forth here: https://www.tencentcloud.com/zh/document/product/301/30451. The parties acknowledge and agree that, regardless of anything to the contrary in these Terms, your sole and exclusive remedy for a breach of an SLA is the remedy as set forth and pursuant to the SLA.
(b) Support for Services. Except to the extent required by applicable laws with respect to consumers, Tencent is under no obligation to provide technical support or other services unless you have purchased support services. You acknowledge and agree that technical support or other services may require you to pay additional costs and other Fees.
(c) Support for Applications. You are responsible for the operation, integration and technical support of your applications.
5. YOUR OBLIGATIONS
(a) Compliance.
(i) You are solely responsible for your applications and User Data and for making sure your applications and User Data comply with these Terms (including the Additional Terms) and that use of the same in connection with the Services complies with applicable laws and regulations, including but not limited to any telecommunication and telemarketing laws, such as the United States Telephone Consumer Protection Act of 1991 (“TCPA”), including as applicable to the use of automatic dialing systems and transmission of SMS text message. You are responsible for obtaining and maintaining any prior consents as may be necessary for the sending of SMS messages in the United States, or elsewhere as applicable.
(ii) You represent and warrant that you have obtained all requisite licenses, permits, consents, qualifications, authorization and complied with all applicable laws and regulations in sending and receiving SMS to End Users, and shall provide evidence of such compliance to Tencent if Tencent requests for this.
(iii) You shall not send, or permit your End Users to send any commercial or marketing SMS messages without the recipient’s explicit consent. Tencent will, in accordance with the Data Processing and Security Agreement, notify you, upon becoming aware, of any instruction received from you in relation to Personal Data processed on your behalf, which in the discretion of Tencent may breach any applicable laws, including any Data Protection Laws. Tencent shall have the right to suspend processing, including the right to stop or refuse delivery or receipt of any commercial or marketing SMS messages, under these circumstances. You acknowledge and agree that you are responsible for all use of the Services by End Users, End Users’ access to applications and User Data, activities under Accounts, and for otherwise ensuring that each End User complies with these Terms. All contents of SMS transmitted is your sole responsibility.
(iv) You represent and warrant that you have the right and authority to use such Sender ID for the sending our of the relevant messages, and that the use of the Sender ID for such purposes do not infringe any third party intellectual property rights, or other right, title and interest.
(v) Tencent reserves the right to review all relevant SMSs to ensure your compliance with these Terms and applicable laws, and has the right to prevent the sending of any unapproved SMSs. This does not exempt you from your responsibilities for the SMS content, and Tencent does not assume any responsibility or liability for your SMS Content. You hereby irrevocably release us and our officers, directors, employees, representatives and affiliates from all and any liability arising out of or relating to the contents of the SMS or any part thereof.
(b) Unsubscribe. You shall provide a free, convenient and easy way for End Users to unsubscribe from or reject the receipt of the Services at all times.
(c) Restrictions.
(i) You warrant and undertake that you will not, and will not allow your Affiliates, employees, and contractors and any third parties under your control, management, supervision, or otherwise to transmit any SMS to End Users via Tencent Cloud which:
(2) contains any spyware, viruses, worms, Trojan horses, malware or exposes End Users to such malware, either directly or indirectly;
(3) corrupts or otherwise destroys data or software contained on Tencent Cloud’s system;
(4) copies, modifies, creates a derivative work of, reverse engineers, decompiles, translates, disassembles, or otherwise attempts to extract any or all of the source code of the Services (except to the extent such a restriction is expressly prohibited by applicable law, and where you are permitted by law to so reverse engineer, you will contact Tencent to obtain the desired information prior to such reverse engineering);
(5) infringes upon the intellectual property rights of a third party;
(6) contains a Promotional SMS (as defined in Section 5(f) below), except in accordance with Section 5(f) below;
(7) contains any misrepresentation or commits any fraudulent activity, such as but not limited to any messages that does the following or attempts to do the following:
a. deceive, mislead, defraud or misrepresent any fact or circumstance;
b. impersonates someone and/or their identity;
c. create a false mobile phone number or identity;
d. falsify the origination details or data on any electronic communications; or
e, solicits or induces any one to participate in any non-commercial or commercial activities such as pyramid schemes, ponzi schemes, fake prize notifications, emergency scams, banking scams, job offer scams, subscription scams, loan scams, delivery scams, etc.; or
(8) could lead to death, personal injury, or environmental damage.
(ii) You warrant and undertake that you will not, and will not allow your Affiliates, employees, and contractors and any third parties under your control, management, supervision, or otherwise:
(1) use the Services as benchmarking or in any manner that is competitive with the Services;
(2) sublicense, resell, or distribute any or all of the Services separate from any integrated application; or
(3) access the Services in a manner intended to avoid incurring Fees or otherwise avoiding usage limitations.
To the extent you choose a Service Region that includes the United States, you will not, and will not allow your Affiliates, employees, and contractors and any third parties under your control, management, supervision, or otherwise to: (i) process or store any User Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State; and/or (ii) process or store any User Data that is subject to the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, or any regulations issued under it.
(d) Your Disclosures to End Users. You represent and warrant that you require End Users to acknowledge a privacy notice before End Users can access our features and functionalities or User Data is otherwise processed by the Services, and such privacy notice: (i) is prominently displayed and easily accessible to End Users at all times; (ii) notifies users that you use the Services; (iii) clearly and comprehensively explains to End Users what User Data we process and how we process the same as the Services involve the processing of User Data by us as envisaged in our Privacy Policy (as updated from time to time) and/or relevant Modules under the Privacy Policy (as updated from time to time); (iv) clearly and comprehensively explains to End Users what User Data you access, collect, store and otherwise use, including User Data as disclosed in the Data Processing and Security Agreement (as updated from time to time) and/or the relevant Modules under the Data Processing and Security Agreement (as updated from time to time) for the specific Service(s) you are using; (v) clearly and comprehensively explains how you share User Data to us, to enable us, mobile network operators, and/or third party messaging platforms to provide the Services and process such data in accordance with the Terms, Privacy Policy and Data Processing and Security Agreement (as updated from time to time); and (vii) otherwise complies with any requirements prescribed by Data Protection Laws.
(e) Consent from End Users. You represent and warrant that you have obtained any necessary consents from End Users in accordance with, and such consents are obtained in the manner, if any, prescribed by, applicable laws (including Data Protection Laws) to enable your, our, our Affiliates’, our Sub-Processors’, mobile network providers’, and third party messaging platforms’ processing of User Data in accordance with applicable laws (including Data Protection Laws), including but not limited to: (i) freely given, specific, informed, explicit, and unambiguous consents from End Users to receive SMS Message Termination (“MT”) prior to any attempted transmission of the SMS MT to such End User by us. You shall not send any SMS to anyone that has explicitly refused to receive SMSs (including any phone numbers registered on a Do Not Call Registry in your jurisdiction), unless you have obtained explicit prior authorization. You are solely responsible for any breaches of this obligation; and (ii) freely given, specific, informed, explicit, and unambiguous consents from End Users to the extent our Privacy Policy (as updated from time to time) and/or relevant Module under the Privacy Policy (as updated from time to time) stipulates that the legal basis of processing any End User’s Personal Data is consent.
(f) Promotional Messages. You are prohibited from sending any SMS that is of a direct marketing, promotional, unsolicited, spamming, unsolicited broadcast or similar nature (“Promotional SMS”) to any End Users except in accordance with this Section 5(f).
(i) You agree that prior to sending any Promotional SMS to an End User, you must obtain the express consent of such End User to receive such Promotional SMS. You shall keep relevant records of such express consent, and where required by Tencent, you shall provide evidence of this express consent received from the End User to Tencent. Where an End User has not consented, you shall not send them any Promotional SMS.
(ii) If Tencent receives a complaint from an End User of a Promotional SMS regarding such Promotional SMS, or if Tencent is of the view that the contents of any Promotional SMS may breach applicable laws and regulations, then Tencent has a right to:
(1) notify you in writing of the complaint received;
(2) request for you to cooperate with Tencent to handle such complaint, if necessary;
(3) prevent your Account from sending further Promotional SMS until the complaint has been addressed and/or resolved;
(4) request you to stop sending Promotional SMS;
(5) suspend the relevant Services; and/or
(6) charge you for any costs and fees associated with the handling of such complaints or enquiries.
(g) Audit and Review. Tencent may, in its discretion, audit any SMS messages transmitted through the Service by you or your End Users and Tencent may edit, remove or refuse any SMS message or content that, in its discretion, violates these Short Message Service Terms of Service, the Tencent Cloud Terms of Service or applicable laws, regulations, industry codes and practices.
6. INTELLECTUAL PROPERTY RIGHTS AND USER DATA
(a) Tencent Cloud Intellectual Property Rights. You agree that all Intellectual Property Rights in and to the Services, as between you and Tencent, will be owned by Tencent, or Tencent’s licensors, as the case may be. Except as expressly set forth in these Terms and to the extent permissible under applicable law, Tencent does not grant to you any licenses or other rights, implied or otherwise, in or to Tencent’s Intellectual Property Rights. “Intellectual Property Rights” means all current and future worldwide rights under patent, copyright, trade secret, trademark, or moral rights laws, and other similar rights.
(b) Tencent Confidential Information.“Tencent Confidential Information” means information that Tencent (or an Affiliate) discloses to you under these Terms, and that is marked as confidential or should reasonably be considered confidential based on the nature of the information and the circumstances of its disclosure. You will not disclose Tencent Confidential Information except to those of your Affiliates, employees, and contractors who need to know the Tencent Confidential Information for the purposes of exercising your rights and performing your obligations under these Terms, and who have agreed in writing to confidentiality obligations that are at least as protective as these Terms. You will, and will take appropriate measures to, ensure that your Affiliates, employees, and contractors: (i) take at least reasonable care to protect the confidentiality of the Tencent Confidential Information; and (ii) do not use the Tencent Confidential Information for any purpose other than to exercise your rights and perform your obligations under these Terms. However, you may also disclose Tencent Confidential Information to the extent required by applicable laws, regulations, or government orders, provided that you use commercially reasonable efforts, if legally permitted, to: (i) promptly notify Tencent of those disclosure requirements before disclosing the Tencent Confidential Information; and (ii) provide to Tencent any information reasonably requested to assist Tencent in seeking a protective order or other confidential treatment for that Tencent Confidential Information.
(c) Feedback. If you provide Tencent or its Affiliates with any suggestions, ideas, comments, or other feedback about the Services (“Feedback”), Tencent and its Affiliates may use and otherwise exploit that Feedback without restriction and without obligation to you.
(d) User Data.
(i) “User Data” means any data, information, media or other content submitted by or on behalf of you or your End Users to the Services, including but not limited to phone numbers, SMS content, and any Personal Data, but excluding any data provided to Tencent or its Affiliates as part of your general Account.
(ii) You hereby grant to Tencent a non-exclusive, sublicensable license to access, copy, use, transfer, and process User Data to provide the Services, and/or otherwise use such User Data in accordance with these Terms, including but not limited to transferring User Data to mobile network operators and/or third party messaging platforms (where you elect for the Services to be provided on such third party messaging platforms) for the provision of the Services.
(iii) You acknowledge and agree that Tencent may disclose User Data to third parties with or without notice to you: (1) to comply with applicable laws or protect Tencent’s rights; or (2) to comply with court orders, a lawful government or law enforcement request, or other legal processes. Tencent may also block or remove User Data as required by applicable laws, in which case Tencent will make reasonable commercial efforts to promptly notify you if legally permissible.
(iv) You are responsible for maintaining and backing up User Data. We will only store SMS content and message records for the duration of six (6) months. Prior to the expiry of this time period, you may request for copies of backups of such SMS content and message records; upon expiry of this time period, we shall not retain any copies of your SMS content and messages.
(v) You represent and warrant that: (1) you have all rights required to provide User Data to Tencent, for Tencent to use the User Data as provided for in these Terms, and for you to use in connection with your use of the Services; and (2) User Data, and your use of User Data through the Services does not violate any laws or rights of any person. You retain any Intellectual Property Rights you may have in User Data.
7. TERM AND TERMINATION; SUSPENSION
(a) Term. These Terms will commence when you accept these Terms or first download, install, access, or use the Services and continue until terminated as set forth below (“Term”).
(b) Termination, Suspension and/or Modification by Tencent. To the extent permitted under applicable laws, Tencent may, at its sole discretion, terminate these Terms, or suspend, modify, restrict or terminate your access to or use of the Services or any aspect of the Services, in whole or in part, or with respect to a Service Region or territory immediately upon written notice to you if:
(i) you violate any provisions of these Terms;
(ii) you have not paid any Fees or other amounts owed by you to Tencent within 30 days after the applicable due date;
(iii) you have no remaining credits or balance in your account or under your existing plan;
(iv) Tencent reasonably believes that you or an End User have violated any applicable laws, or engaged in any fraudulent or deceptive activity, in connection with the use of the Services;
(v) you enter into liquidation, administrative receivership, bankruptcy or make any voluntary agreement with your creditors or are unable to pay your debts as they fall due;
(vi) Tencent is required to by applicable laws, court orders or requirements imposed by government bodies, or if Tencent otherwise determines that it is reasonable to do so in order to ensure that Tencent does not violate or risk violation of the same; or
(vii) any current or future regulatory or other requirement (1) subjects Tencent to an obligation not generally applicable to businesses operating in a Service Region; (2) would result in difficulty for Tencent to continue offering the affected Service(s); (3) would, in our opinion, result in difficulty for mobile networks that collaborate with Tencent in provision of the Services to continue partnering with Tencent in your Service Region; or (4) Tencent reasonably believes may conflict with these Terms or the Services.
You will not be entitled to any refund of any fees or credits in the event that the Services are terminated under any of the above circumstances.
(c) Termination by you. You may terminate your Account and these Terms at any time by following the instructions provided within the Services. Unless you have any existing breaches of these Terms at the time of termination, we will refund to you any prepaid fees which have not been utilised, after deducting any Service charges, costs, expenses and administrate charges.
(d) No Liability for Termination. Except as expressly required by law, if either party terminates these Terms in accordance with the foregoing, neither party will be liable to the other because of the termination, for expenditures or commitments made in connection with these Terms or damages caused by the loss of prospective profits or anticipated sales. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
(e) Effects of Suspension. If Tencent restricts or suspends your access to any or all of the Services, or otherwise modifies the Services under these Terms: (i) where Services are suspended, you remain responsible for all Fees accrued through the date of suspension (including where the charges were incurred before suspension date but performance of the relevant obligations were after the suspension date); (ii) you remain responsible for any applicable charges for any part of the Services (including any modified portions thereto) to which you have access; and (iii) you will not be entitled to any service credits under the applicable SLA for any period of suspension, modification or restriction.
(f) Effects of Termination.
(i) Upon termination or expiration of these Terms: (1) you will pay Tencent any Fees or other amounts owed under these Terms within 30 days of termination or expiration; (2) you will delete any Software and remove from the Services and User Data; (3) your rights under these Terms shall immediately cease; and (4) upon Tencent’s request, you will use commercially reasonable efforts to return or destroy all Tencent Confidential Information. Tencent has no obligation to make accessible to you any User Data after the termination of these Terms.
(ii) In addition, the following provisions will survive any termination of these Terms: Sections 1, 2, 5, 6, 7(d)-(f), 8 and 9.
8. DISCLAIMER
Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NEITHER TENCENT NOR ANY OF ITS LICENSORS OR AFFILIATES, PROVIDERS OR DISTRIBUTORS, MAKE, AND TENCENT HEREBY DISCLAIMS ON BEHALF OF ITSELF AND SUCH PERSONS, ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING TENCENT CLOUD, THE SERVICES, OR ANY MEDIA OR OTHER CONTENT SUBMITTED, UPLOADED, STORED, TRANSMITTED OR DISPLAYED BY OR THROUGH THE SERVICES, INCLUDING ANY REPRESENTATION, WARRANTY OR UNDERTAKING:
(a) THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS;
(b) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE;
(c) THAT USER DATA WILL NOT BE SUBJECT TO LOSS OR DAMAGE;
(d) OF NON-INFRINGEMENT;
(e) THAT THE SERVICES OR SOFTWARE WILL BE SECURE OR COMPATIBLE WITH YOUR OR YOUR END USERS’ NETWORKS, SYSTEMS, APPLICATIONS, HARDWARE, OR DEVICES; OR
(f) THAT THE SERVICES WILL BE OF MERCHANTABLE OR SATISFACTORY QUALITY OR FIT FOR ANY PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Cap on Liability. SUBJECT TO SECTION 9(C) BELOW, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL AGGREGATE LIABILITY OF TENCENT AND ITS AFFILIATES, ON THE ONE HAND, AND YOU ON THE OTHER, FOR ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS, THE SERVICES, AND THE SOFTWARE, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, WILL NOT EXCEED THE TOTAL FEES THAT YOU HAVE PAID TO TENCENT FOR THE RELEVANT SERVICE GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT. HOWEVER, NOTHING LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR ANY MATTERS FOR WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAWS.
(b) Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, NEITHER TENCENT, NOR ITS AFFILIATES OR THEIR LICENSORS WILL BE LIABLE TO YOU UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, FOR: (i) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES; (ii) UNAVAILABILITY OF THE SERVICES (EXCEPT AS PROVIDED UNDER SECTION 4(a)); (iii) YOUR APPLICATIONS OR INTELLECTUAL PROPERTY RIGHTS; OR (iv) LOSS OF DATA, LOST PROFIT, GOODWILL, REVENUE, CUSTOMERS OR OPPORTUNITIES; IN EACH CASE, RELATING TO THE SERVICES AND THESE TERMS.
(c) Unlimited Liabilities. NOTHING IN THESE TERMS EXCLUDES OR LIMITS YOUR LIABILITY FOR:
(i) YOUR PAYMENT OBLIGATIONS UNDER THESE TERMS;
(ii) YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9(F);
(iii) YOUR INFRINGEMENT OF OUR, OUR AFFILIATE’S OR LICENSOR’S INTELLECTUAL PROPERTY RIGHTS; OR
(iv) ANY FRAUDULENT ACTIVITIES OR FRAUDULENT MISREPRESENTATION, INCLUDING BUT NOT LIMITED TO THOSE SET OUT IN SECTION 5(C)(i)(7).
(d) Disclaimer of Certain Liabilities. Without limiting Section 9(a) or 9(b), if the Services are interrupted for any of the reasons set forth below, Tencent disclaims liability for any loss or damage to the extent caused by the following:
(i) causes attributable to infrastructure operators, including but not limited to technical adjustments made by telecommunications operators, damage to telecommunications/power lines, installation, modification or maintenance of telecommunications networks/power resources by telecommunications/power operators;
(ii) your use of the Services in a manner not authorized by Tencent;
(iii) improper operation by you or failures in your computer software, systems, hardware, or telecommunications lines;
(iv) any other circumstances not attributable to the fault of, outside the control of, or not reasonably foreseeable by, Tencent;
(v) causes attributable to third party operators and platforms, including but not limited to mobile network operators and third party messaging platforms; and
(vi) any circumstances as set out in Section 4 of the SLA.
(f) Your Indemnification.
(i) You will defend, indemnify and hold harmless Tencent, its Affiliates, and each of their respective agents, licensors, employees, officers and directors from and against any Claims to the extent they arise out of or in relation to:
(1) your product, service or use of User Data, including without limitation, any alleged infringement or misappropriation of the Intellectual Property Rights of any third party;
(2) the Sender ID or your SMS Content is alleged to infringe or misappropriate the Intellectual Property Rights of any third party, violate any applicable laws and regulations, or in relation to any complaints in respect of such Sender ID or SMS Content;
(3) you or your End Users’ use of the Services or Software, including without limitation any (A) alleged violation of Data Protection Laws (as defined in the Data Processing and Security Agreement) by you, your End User(s), Tencent, or its Affiliate(s) in connection with such use; (B) alleged violation of any other applicable laws and regulations by you, your End Users, Tencent, or its Affiliates in connection with such use; (C) alleged violation of third party rights by you, your End Users, Tencent, or its Affiliates; and/or (D) such use that would constitute a violation of these Terms; and/or
(4)the use of any products, services, data, software, hardware or business processes not provided by or on behalf of Tencent or its Affiliates.
(ii) Tencent will provide you with: (1) prompt written notice of any Claims; and (2) reasonable assistance, at your expense, to defend or settle the Claim. Tencent and its Affiliates retain the right to appoint additional counsel of their choice to participate in defending or settling the Claims, in which case the counsel retained by you will consult with the counsel appointed by Tencent or its Affiliates and will give them the opportunity to provide comments on defense and settlement strategies.
(iii) At your option, you may settle any such Claims, provided that any settlement requiring Tencent or its Affiliates or their agents, licensors, employees, officers or directors to admit liability, pay money, or take or refrain from taking any action will require Tencent’s or the Affiliate’s prior written consent (not to be unreasonably withheld, conditioned, or delayed).
(iv) Without limiting the foregoing, you agree to pay any final judgment entered against Tencent or its Affiliates or their licensors, employees, officers and directors including without limitation any damages, costs, penalties, fees, disgorgement, restitution, and interest, or in the event of settlement, any settlement amounts agreed to by you, as a result of those Claims. You also agree to reimburse us for any costs and reasonable attorney’s fees spent responding to any third-party subpoena, legal order or other processes associated with such Claims.
(g) Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN YOU AND TENCENT. THIS ALLOCATION IS REFLECTED IN THE FEES CHARGED BY TENCENT TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TENCENT. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE LIMITED REMEDIES IN THESE TERMS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
(h) Modification of Terms. If Tencent intends to amend the Terms, Tencent will post the updated version herein. Your continued use of the Services after the effective date of the updated Terms constitutes your acceptance of any amended Terms.
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