Text Marketer Ltd - Customer's Terms & Obligations

CUSTOMER OBLIGATIONS

The Customer shall ensure that before a User requests SMS Content, the User is provided with:

sufficient information to make the User aware of:

(i) the identity of the Customer as the provider of the SMS Content (details to include a contact address for the Customer in the UK and a non-premium rate customer care helpline); and

(ii) the costs to the User of Short Messages, both sent and received;

(iii) the frequency and number of Short Messages that will be received in response to a request for multiple Short Messages (unless the number of Short Messages is indefinite, in which case this fact should be made clear); and

sufficient information to make Users aware that to cease receiving further Short Messages, they should send the command “stop” to the relevant SMS Short Code.

information sufficient to make Users aware of the arrangements for payment for receipt and sending of Short Messages (i.e. that charges will be made via the User’s mobile phone bill, or deducted from the User’s mobile phone credit as appropriate).

sufficient information to make Users aware of contact details for customer care run by the Customer and that if they have a complaint relating to the provision of the Customer’s service they should contact the Customer. In this regard, the Customer shall have a customer care line charged at no more than UK national rate operational during UK business hours.

The Customer shall ensure that any SMS Content not suitable without age restriction is only provided via SMS Short Codes designated as acceptable for such SMS Content by any relevant Code of Practice.

The provision of the SMS Service is strictly subject to the Text Marketer Ltd Terms and Conditions including, without limitation the requirement to adhere to all Codes of Practice.

The Customer shall ensure that where a User sends a ‘stop’ command to a short code allocated to the Customer, the Customer takes the requisite action to ensure the User does not receive any further messages of the type they wish to unsubscribe from receiving, as determined by and in adherence with the stipulations of the Vodafone Code of Practice.

The Customer shall not convey any Short Message to any User unless such User has requested the same and has agreed by way of requesting such Short Message by a data message sent by the User, the mobile subscriber number of which is provided automatically by the SMS Facility.

Where the Customer utilises any short codes hereunder set at a tariff of 5 GBP or over, each billing message must include the following information:
               
the cost of the SMS (regardless of whether it is a one-off purchase or part of a subscription service); and

the name of the service provider; and

a non-premium customer care number.

The Customer shall, at all times throughout the duration of this Agreement, provide Content and otherwise utilise the Services in accordance with such reasonable conditions as may be notified in writing to the Customer by Text Marketer Ltd from time to time and the relevant provisions of the Communications Act 2003 (“the Act”) .The Customer shall provide services in accordance with any applicable conditions of entitlement of the Act, any direction of OFCOM or other competent authority and any applicable legislation (including but not limited to the Data Protection Act 1998 the Consumer Protection (Distance Selling) Regulations 2000 (SI 2334) and the Privacy and Electronic Communications (EC Directive) Regulations 2003, law or Codes of Practice regulating the provision of the services contemplated by this Agreement. Under no circumstances may the Customer directly advertise or market any of its services where the services have not been solicited by the recipient. The Customer shall at all times throughout the duration of this Agreement provide Content which complies with the PhonepayPlus Code of Practice and all Network Codes of Practice and which is not likely to bring the Networks (at their sole discretion) or Text Marketer Ltd (at its reasonable discretion), into disrepute.

In any publicity or other promotional activity the Customer shall not state or imply any approval by any of the Networks or by Text Marketer Ltd (or any associated company of the Networks or Text Marketer Ltd) of any Content nor refer to the Networks or Text Marketer Ltd without the express written approval of a duly authorised officer of Text Marketer Ltd.

The Customer shall not at any time provide any Content the provision of which is or may be a criminal offence or which infringes or may infringe any third party intellectual property rights or is or may otherwise be unlawful under or by virtue of any rule of common law or equity or under any enactment for the time being and from time to time in force or involves a wrong actionable at the suit of any person.

The Customer will immediately cease to provide, at Text Marketer Ltd’s written request, any Content which Text Marketer Ltd considers may have been provided in breach of this Agreement.

The Customer shall ensure that before any Content is made available by the Customer all such rights, authorisations, licences, consents and permissions have been obtained or granted and all such requirements of law or of any Regulatory Body or any other competent authority or public body have been complied with as may be necessary and sufficient to enable Text Marketer Ltd to provide access to the Services. Text Marketer Ltd shall have no obligation whether under this Agreement or otherwise to make available to the Customer any equipment, facilities or Services until such time as the Customer has complied with all of its obligations under this Clause 3.6 to the satisfaction of Text Marketer Ltd.

The Customer shall indemnify and keep fully and effectively indemnified Text Marketer Ltd and all members, officers, servants and agents of Text Marketer Ltd against all liabilities (including damages, expenses and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever arising directly or indirectly out of or in consequence of the use by the Customer of the Services and/or the associated services of the Customer (other than in respect of any errors in or omissions from any Customer use of the Services caused by a fault in the Services). Text Marketer Ltd shall, as soon as reasonably possible give notice to the Customer of any such proceeding, claim or demand. Where a Network makes any refund to a User in respect of a service provided by the Customer (whether on an ex-gratia basis or otherwise) or obliges Text Marketer Ltd to make a refund to a User or a Regulatory Body imposes a fine, the Customer shall reimburse Text Marketer Ltd for all such monies paid by Text Marketer Ltd to the Network, User or the Regulatory Body as applicable and Text Marketer Ltd shall be entitled to deduct any such reimbursement from monies payable by Text Marketer Ltd to the Customer. Such reimbursement shall amount to the actual amount of monies paid by Text Marketer Ltd to the Network, User or Regulatory Body as applicable.

The Customer shall, throughout the duration of this Agreement provide Text Marketer Ltd with such information relating to any Content or use of the Services and associated services by the Customer as Text Marketer Ltd may reasonably request in order to verify to its satisfaction the Customer’s compliance with the terms of this Agreement. Text Marketer Ltd shall be entitled to pass such information (or any part thereof) to any Regulatory Body or any other competent authority or public body who may require the same. Additionally, the Customer shall directly provide to all Regulatory Bodies (including without limitation PhonepayPlus) such information or material relating to any service or future service the Customer may provide as the Regulatory Body may request (from either Text Marketer Ltd or the Customer) in order to carry out any investigation in connection with (i) such service; or (ii) the Customer’s relationship with any other entity with whom it may contract in relation to such services. In the event that PhonepayPlus launches an investigation into the use of the Services by the Customer, the Customer shall confirm to PhonepayPlus, upon Text Marketer Ltd’s request, that it is responsible for the service in question and provide all necessary consents to enable PhonepayPlus to deal with the Customer directly in respect of such investigation. The Customer acknowledges that a fee of 75 GBP + VAT per hour may be levied on the Customer as an administration fee for correspondence with each Regulatory Body regarding the Customer’s services.

The Customer shall not at any time assign, transfer or sub-contract this Agreement or any parts thereof to any other person without the written consent of Text Marketer Ltd. Without prejudice to the foregoing and notwithstanding any assignment, transfer, sub-letting or sub-contracting the Customer shall continue to be liable and responsible to perform the obligations of the Customer hereunder and Text Marketer Ltd’s rights shall remain unaffected.

The Customer shall ensure that no person other than the Customer gains access to the Customer’s accounts for the Services.

The Customer shall not send any communication to any User where six months have elapsed since there has been a successful interaction with such User through Text Marketer Ltd’s Services.

CUSTOMER ACKNOWLEDGEMENT

The Customer acknowledges that the transmission and receipt rate of Short Messages may be governed by the Networks’ systems and other factors outside the control of and therefore Text Marketer Ltd gives no warranties or guarantees concerning the transmission or receipt rate of Messages.

FINANCIAL PROVISIONS

Text Marketer Ltd shall be entitled to deduct any amounts due or amounts equal to any invoices issued from any sums payable to the Customer. In the event that any Regulatory Body imposes any fine on the Customer and/or Text Marketer Ltd or requires the Customer and/or Text Marketer Ltd to pay any charge or other sum, which applies or relates to the business or activities of the Customer, then Text Marketer Ltd shall be entitled to withhold or deduct a sum equal to such fine, charge or sum from sums payable to the Customer under this Agreement and to pay the same to the relevant Regulatory Body.

Text Marketer Ltd shall be entitled to review and if it so desires vary from time to time the charges payable for the Services and/or introduce new charges and the varied or new charges shall take effect four weeks after written notice to the Customer of such variation or new charges. Text Marketer Ltd shall be entitled to alter the charges for each of the Services within any one year period commencing from the Start Date for the affected Service.

Text Marketer Ltd’s RIGHTS

Without prejudice to Text Marketer Ltd’s other rights under this Agreement, Text Marketer Ltd shall have the right at any time at its reasonable discretion to:-

require the immediate cessation of the provision of any Content or other data, matter or thing which it may determine to have been or to be in breach of this Agreement and/or the Codes of Practice and it is hereby expressly agreed that any failure by the Customer to promptly comply with any request made by Text Marketer Ltd.

bar access to or cease to provide the Services or any part thereof and/ or withhold payments due to the Customer at any time if:

(i) the Customer is or has been in breach or allegedly in breach of this Agreement and/or any Codes of Practice or is not or has not been providing a bona fide service to the Users; or

(ii) either any Network or Text Marketer Ltd objects to the involvement of any person either any Network or Text Marketer Ltd deems to be unsuitable to be involved in the use of the Services and the Customer does not cease using such person or prevent such person being involved in such use of the Services on written notice of such objection being given to the Customer.

Text Marketer Ltd shall not be liable to the Customer for barring access to the Services or any part thereof or for withholding payment. Text Marketer Ltd’s rights to bar access or to cease to provide the Service and/or withhold payment may be exercised for such period as Text Marketer Ltd at its reasonable discretion see fit. If the period of such withholding, bar or cessation or any other barring, cessation, suspension or delay in providing the Services or any part thereof pursuant to any of its rights under this Agreement exceeds seven days then Text Marketer Ltd shall have the right forthwith upon notice to the Customer to terminate this Agreement.

temporarily suspend access to the Services, if at any time the use of the Services by the Customer is such that it causes congestion to the Services and/ or the Networks or disrupts other services or which are, in the reasonable opinion of Text Marketer Ltd, excessive. In such circumstances Text Marketer Ltd shall not be liable to the Customer for such suspension. Text Marketer Ltd shall inform the Customer as soon as reasonably possible of any temporary suspension of access to the Services.