The ‘Agreement ‘ as entered into from the beginning is that which binds ‘ you ‘ hereinafter called the ‘ Customer,’ while ‘ we ‘ or ‘ us ‘ refers to ourselves SMS Send as being the Supplier of ‘ Service ‘ or ‘ Services ‘ sometimes also hereinafter termed ‘ Service(s) ‘ these being send and receive SMS voice and / or any other format messages. Notwithstanding any such message and any other future Service(s) that we may make available to you are referred to in these Terms and Conditions as a ‘ transaction,’ including all its variant word forms as aforementioned in that context. SMS Send is a child (sole trader) of the (sole trader) parent GHI Digital.
You enter into this Agreement on the understanding that you accept the terms and conditions, and that these are the sole provisions by which we will supply this Service or Services to the exclusion of all other terms and conditions.
1 The Service(s) – Any Service(s) that we make available to you during the term of the Agreement are more particularly detailed as contained in your online registration.
2 Availability and Interruption of the Service(s)
2 (a) The Service is made available to you as an account, using your own mobile number or a unique eleven digit virtual mobile number or a unique combination of shared short code or codes and keyword or keywords, names, as may be allocated.
2 (b) Some or all parts and/or elements of the Service(s) may be accessed via web application, email gateway, software tool and / or web service, the APIs of which you may embed in your technology offers, all as more particularly described on our website at www.smssend.co.uk
- We will make the Service(s) available to you as a customer using reasonable skill and care. You however acknowledge and agree that the availability of the Service(s) and your ability to access and / or use the Service and the conducting and operation of any transaction may depend upon factors that lay beyond our reasonable control, including but not limited to factors affecting the operation of the Service(s) and / or preventing transactions from being successfully carried out such as, but not limited to geographical or topographical shortfalls or failures in the network of all or any telecommunications network operator, network capacity, changing or unusual atmospheric conditions, or physical obstruction(s). Also accounting and/or credit issues preventing end users from receiving messages such as the terms and conditions of an end-user’s service provider, termination of the provider’s contract (by either party) and so forth. We cannot therefore guarantee, nor do we provide any warranty that the Service(s) will be available to you continuously at all times or free from such faults or interruption(s) nor the physical receipt by any intended recipient of any message sent using the Service(s) as used, and by way of the aforementioned and other similar financial circumstances, you accept that interruptions can occur in such situations.
- We may, at our sole discretion, alter or improve the Service we supply to you at any time, on the proviso that any type of alteration does not materially affect the nature or detract away from the functionality of the Service(s).
4 (a) It may be necessary from time to time for us to suspend the Service(s) that we provide to you for routine or emergency maintenance and / or repairs and we will, insofar as reasonably possible provide you with some form of reasonable period of notice prior to any such necessary suspension.
- We may at our sole discretion suspend your access to the Service(s) and / or cease to allow any further transactions to be conducted by you if:
5 (a) you are in material breach of the Agreement and / or any applicable codes of practice, guidelines, rulings or regulations of any national telecommunications regulatory authority or other authorised body or authority or regulator relating to the Service(s) that exist or new or made periodically during the continuation of the Agreement which you must comply with or which you are agreed as bound including but not limited to those issued by PhonepayPlus and the Industry Code of Practice for the use of mobile phone technology.
FURTHER INFORMATION CAN BE FOUND HERE REGARDS CODE OF PRACTICE: http://www.mobilebroadbandgroup.com/social.htm and http://consumers.ofcom.org.uk/phone/mobile-phones/safety-and-security/mobile-location-based-services/
5 (b) you are currently or have been engaged in anything unlawful in the course of using or relating to using the Service(s);
5 (c) a network operator authority or a regulator requires it;
5 (d) we are entitled to terminate the Agreement for any reason, in which case we will provide you with appropriate and suitable notice as soon as reasonably possible.
6 (a) Our employees are never delegated to manage your account or the provision of the Service(s) under the Agreement. Both you and ourselves thus recognise that there is no grouping of our employees and that the Transfer of Undertakings (Protection of Employment) Regulations 2006 do not apply to the Agreement.
7 Freedom of Information
7 (a) We acknowledge that certain public bodies, as an example local councils, are subject to the Freedom of Information Act 2000. If you are a public body then we will assist and co-operate with you, albeit that you will bear the liability for all cost and expenses incurred in such an instance to enable you to comply with any information disclosure requirements.
7 (b We will at our sole discretion and without liability, determine whether or not any of that information as requested by you is confidential, commercially sensitive and / or exempt from disclosure under the Freedom of Information Act 2000.
8 Confidentiality and Data Protection
8 (a) We will at all times keep confidential all information acquired as a consequence of the Agreement in respect of you as an individual or your business, excepting information already in the public domain or information which we are required to disclose by law, requested by any regulator body or authority, or reasonably required by our professional advisors for the performance of their professional services.
8 (b) By way of the Agreement you will at all times keep confidential all information acquired from the Service(s) or any network operator, excepting information already in the public domain or information which you are required to disclose by law, requested by any regulator body or authority, or reasonably required by your professional advisors for the performance of their professional services.
8 (c) Each of us will comply with the Data Protection Act 1998 and all regulations made under that Act in the processing and use of any personal data, including any mobile telephone numbers of your end-user who will be sent messages or voice calls as a result of making the Service(s) available to you. Such personal data of thees types is referred to as ‘ End User Data,’ in relation to the Agreement. In respect of the End User Data You appoint us as a data processor in accordance with the Act and we agree to act only on and in accordance with your reasonable instructions regarding End-User Data and at all times to comply with obligations equivalent to those incumbent on a Data Controller by the seventh Data Protection Principle of the Act. We shall not process any End User Data outside of the European Economic Area without Your prior written consent. We shall not disclose End User Data to any third party consultant or professional advisor other than where the disclosure is required for us to be able to provide the Service(s) hereunder or to comply with legal obligations and subject always to us entering or already having in place written contracts with the third party recipient of the End User Data bearing terms no less stringent than the terms of this Agreement.
- (d) We will treat Your End User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purposes of making the Service(s) available to you and providing any such technical support required. We will make no further use of Your End User Data without your specific authorisation.
9 Customer Support
9 (a) Unless We otherwise agree in writing, We will provide online and telephone support in respect of the Service(s) from 09:00 to 17:00 UK time, Monday to Friday excepting Bank Holidays, England and Wales, and outside these hours you may submit an online ticket at any time, whereby we will make all reasonable efforts to provide such support in respect of the Service(s).
10 Customer Transaction Charges and Payment
10 (a) Each time any given transaction is conducted, you will incur a corresponding charge. Alternatively, you may wish to purchase transactions in advance via credits for each month of the Agreement or a extended period as agreed between us, in which case we will allocate to you the corresponding number of credits accordingly for that amount of time. A single SMS message transaction thus using up an agreed tranche will therefore reduce your value of the balance of transaction credits available by that amount to UK handsets. International messages which use a higher amount of credits pro rata will be charged at that higher rate.
10 (b) SMS Message existing credits until used up are continuously active, but will automatically lapse where an account has been seen to be inactive/dormant for 9 months. After that date SMS Send have the right to remove the account from our database and reconnection charges will apply. If there is no further communication from you, that account will deemed to be no longer required and expired thereof.
10 (c) For your account to maintain your required working continuity you must ensure adequate credit to meet your needs and agreeing an appropriate prior level of credit with us. Also to maintain your position through regularly checking your remaining available credit level by logging in with sufficient frequency for this purpose. Alternatively you can contact us periodically to ensure that you have sufficient credits. You are solely liable for maintaing sufficient credits wherein we are not liable whereby your credits have been knowingly or unwittingly exceeded in any period.
10 (d) Under such circumstances a charge will be levied for each transaction and notwithstanding whether conducted by you successfully or otherwise and regardless of whether that transaction or transactions have been successfully transmitted or received.
11 Your Liabilities and Obligations
You warrant that you will not:
11 (a) either use the Service(s) or permit the Service(s) to be wholesaled transferred on or sold on to other parties for your own commercial gain, and that the Service(s) are to be used to send messages or voice calls only to your end-user for marketing or sales purposes and not without that end-user’s explicit prior consent or request to receive them. If you are sending any messages for sales or commercial purposes to any of your end-users, you must provide those end-users the right to request to opt out of receiving any further messages sent by you for commercial purposes. Such opt out procedures to be promptly processed.
11 (b) use the Service(s) or permit the Service(s) to be used to convey messages to any end user excessively in our reasonable opinion;
11 (c) use the Service or permit the Service(s) for the use of any improper, fraudulent, immoral or unlawful purpose(s);
11 (d) use the Service(s) or permit the Service(s) to be used with or for the transmission of any material which is defamatory, offensive, threatening, abusive, obscene or menacing in nature or intent;
11 (e) use the Service(s) or permit the Service(s) to be used in a way that infringes the intellectual property rights or any other proprietary rights of any third party;
11 (f) use the Service(s) or permit the Service(s) to be used in a form that may injure maim or damage any person or property or cause the quality of the Service(s) to be impaired in any way.
11.1 You will at all times while under this Agreement:
11.1 (a) send only messages or voice calls that comply with all applicable laws, regulations and statutes not containing content which is likely to offend in respect of acceptable general standards of decency;
11.1 (b) comply with all reasonable directions guidance and instructions issued by us periodically in relation to the Service(s);
11.1 (c) comply with and observe at all times all applicable laws, regulations and statutes and any directions, recommendations and decisions of any regulator or regulatory body;
11.1 (d) not act in any manner inviting objection and/or that likely to bring us, the Service(s) or any network operator into disrepute.
11.1 (e) You will, upon request, provide us or any network operator or regulator or regulatory body, with any information relating to your use of the Service(s) that the requesting party requires as reasonable. You are responsible for ensuring that any information relating to your end users, including but not only your end-user Data, is accurate and complete as far as is reasonably possible..
11.1 (f) You will not state explicitly or or by way of implication any approval by us of any particular message or voice call that you send using the Service(s) or refer to us in any way without our prior written approval.
12 We may, at our sole discretion:
12 (a) cease to transmit on, and by this action you will promptly cease to transmit at our request, any message or voice call considered inappropriate in any way; or
12 (b) cease to enable, and you will promptly cease to carry out at our request, anything which we reasonably consider to be in breach of the Agreement.
12 (c) You will not seek to acquire or indeed acquire in any manner any title or other proprietary right to any intellectual property, including but not only any patents, theoretical or practical knowledge, registered or unregistered trademarks, design rights or copyright, relating to the Service(s). Nor will you cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. Moreover, you will notify us of any suspected infringement of our intellectual property of which you become directly or indirectly aware and will take all reasonable steps, as we may direct, of such suspected infringement(s) where it is directly and specifically related to the service(s) that we provide to you.
13 You warrant that you will not:
13 (a) modify copy or create similar or derivative works of the software, programs, and other applications underlying the Service;
13 (b) sublicense the Software, lease it, rent it, assign it, distribute or repackage it, nor rebrand, re-market or otherwise transfer or disclose this Software or any portion thereof or any documentation to any third party; Note: the restrictions in this clause do not prohibit you from embedding in your own technology by way of the offerings of the APIs that we make available to you for purposes of accessing the Service(s).
13 (c) cause, assist or permit any third party whatsoever to do any of the aforementioned.
13 (d) You warrant that you are the sole owner or licensor of all rights in your end-user Data or you have obtained all necessary rights, licences and consents from all relevant third parties to enable you, us and our sub-contractors to use the end user Data for the purposes of the Agreement.
14 Our Liability to You
14 (a) Nothing in the Agreement will be construed or will in any way exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraudulent misrepresentation or concealment or for breach of data protection obligations herein or for any other liability that cannot be excluded or limited at law.
14 (b) We will not be in any way liable or indemnify you for any liabilities, losses, damages, costs and / or expenses incurred or suffered by you as an Invoiced or billable Customer or either a non-billable or yet un-Invoiced Customer as a result of your use of the Service(s), except to the extent that such liabilities, losses, damages, costs and / or expenses directly result from breach of this agreement, or on the part of our negligence or wilful misconduct.
14 (c) We will not be held liable in any way for the content of any messages and / or voice calls sent or transmitted using the Service(s), nor will we be in any way liable for any failure to make the Service available to you as a result that such failure originates or is attributable to a technical or other failure on the part of any network operator or any other occurrence which is beyond our reasonable control.
14 (d) Where you are a Customer, except as otherwise expressly provided in the Agreement, either party’s aggregate liability to the other party in contract, tort, negligence or otherwise arising under or in conjunction with the Agreement shall be limited to five (5) times the total Customer Charges paid by you under the Agreement in the preceding 12 month period or, where you have made an advance-purchase of transaction credits, five (5) times the total value of transaction credits pre-purchased by you under the Agreement and not including any additional Customer charges paid in the preceding 12-month period.
14 (e) Subject to any express provision to the contrary in the Agreement, neither you as either a Customer or a non-billable customer we will not under any circumstances be liable in contract, tort, negligence or otherwise for any economic loss including, but not only any loss or profits, business, contracts, revenue, turnover or anticipated savings, or for any indirect subsequent and/or consequential losses, whether or not they were foreseen or foreseeable.
14 (f) Each of us acknowledges that neither you the Customer nor we have entered into the Agreement on the basis of or in reliance upon any representation excepting any representation made fraudulently, warranty or other term except as otherwise expressly provided in the Agreement and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded as far as the law permits.
14 (g) We shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations statutes and rules having equivalent effect.
15 Disclaimer of Warranties
Notwithstanding anything to the contrary herein, you expressly acknowledge and agree that:
15 (a) your use of the Service is at your sole risk. The Service or Service(s) is/are provided ‘ as seen ‘ and ‘ as available ‘ basis. We and our licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement;
15 (b) We and our licensors make no warranty that the Service will meet your requirements, or that the Service(s) will be uninterrupted, timely, secure, or error-free, or that the results that may be obtained from the use of the Service(s) will be accurate or reliable, or that the quality of any information or other material gathered by you via the Service(s) will meet your expectations, or that any errors in the software associated with the Service(s) will be corrected;
15 (c) any material downloaded or otherwise obtained through the Service(s) is done at your own discretion and risk, and you will be solely responsible for any damage to your computer system including any equipment containing that system or loss of data that results from the download of any such material;
15 (d) no advice or information, whether oral or written, obtained by you from us or through or take from the Service(s) shall create any warranty not expressly stated in this agreement.
16 Force Majeure
16 (a) Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not only the failure, malfunction or unavailability of vital telecommunications, data communications and/or computer services, power supply failures or power shortages, acts or omissions of third parties including, but not only network operators, acts of government or regulators, regulatory bodies or telecommunications network overload or congestion.
17 (a) Any failure by either party to enforce any of the terms or conditions of the Agreement at any time will not be deemed a waiver of those terms or conditions or of the right to subsequently enforce those or any other terms and conditions of the Agreement at any time.
17 (b) Should any of the terms or conditions of the Agreement be held to be invalid or unenforceable, this will not affect the validity or enforceability of all the remaining terms and conditions.
17 (c) The Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, arrangements, representations and understandings and any undertakings between the parties relating to the subject matter of the Agreement, provided that we may, from time to time:
17 (d) make a change to any terms of the Agreement in taking account of any change in the law, in which case we will take measures as reasonably possible notify you in advance of any of the change or changes;
17 (e) make a change to any material term of the Agreement to take account of any commercial or financial bases outside of our control where we are in any way p[art or fully dependent on other third party or third parties, but provide that we shall notify you of any change to any such material term of the Agreement whereby you will be entitled to terminate the said Agreement within 30 days of the date of this notice;
17 (f) make a change to any term of the Agreement, which does not materially affect the Service(s) by publishing notice of the change on our website at www.smssend.co.uk making the revised terms and conditions readily available on our website.