1.1 You wish to use Our Service as a paying customer (“Customer”).
1.2 You wish to use the Service and We are willing to make the Service available to You subject to and in accordance with the terms and conditions of the Agreement.
1.3 The terms and conditions of this Agreement:
1.3.1 are the only terms and conditions upon which We are prepared to make the Service;
1.3.2 shall govern your use of any Service made available to You as a Customer; and
1.3.3 shall govern Your access to, and use of, the Service to the exclusion of all other terms and conditions.
2.1 The Service enables You to do one or more of the following:
2.1.1 send and receive SMS, voice and / or other format messages;
2.1.2 any service that We make available to You during the term of the Agreement,
as more particularly defined as part of Your online registration.
2.2 Any such message and any other Service that we may make available to You, shall be referred to in these Terms and Conditions as a “Transaction”.
3.1 The Service is made available to You as an account, to which a unique 11 digit virtual mobile number or a unique combination of shared short code and keyword may be allocated.
3.2 Some or all elements of the Service may be accessed via a web application, an email gateway, a software tool and / or a web service, the APIs of which You may embed in Your technology offerings, all as more particularly described on Our website at www.textmarketer.co.uk
3.3 We will make the Service available to You as either a Customer using reasonable skill and care. You do however acknowledge and agree that the availability of the Service, Your ability to access and / or use the Service and the conducting of any given Transaction may depend upon factors beyond Our reasonable control, including (but not limited to):
3.3.1 factors affecting the operation of the Service and / or preventing Transactions from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions; or
3.3.2 factors preventing end-users from receiving messages by way of example, the terms and conditions of an end-user's service provider.
3.4 We cannot therefore guarantee:
3.4.1 that the Service will be available to You at all times or free from faults or interruptions;
3.4.2 the receipt by any intended recipient of any message sent using the Service (as applicable);
3.5 We may, at Our sole discretion, alter or improve the Service We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Service.
3.6 It may be necessary from time to time for Us to suspend the Service that We provide to You for routine or emergency maintenance and / or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.
3.7 We may at Our sole discretion suspend Your access to the Service and / or cease to allow any Transactions to be conducted by You if:
3.7.1 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 competent body or authority (“Regulator”) relating to the Service that may be introduced or made from time to time during the continuation of the Agreement and with which You must comply or to which You have agreed to be bound (“Codes”), including (but not limited to) those issued by PhonepayPlus and the Industry Code of Practice for the use of mobile phone technology;
3.7.2 You are doing or have done anything unlawful in the course of using or relating to Your use of the Service;
3.7.3 a Network Operator or a Regulator requires it;
3.7.4 We are entitled to terminate the Agreement for any reason, in which case We will give You appropriate notice as soon as is reasonably possible.
4.1 Our employees are never allocated to the management of Your account or to the provision of the Service under the Agreement. Both You and We therefore 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.
5.1 We acknowledge that certain public bodies are subject to the Freedom of Information Act 2000. If you are a public body then We will assist and co-operate with You (at Your expense) to enable You to comply with any information disclosure requirements.
5.2 We will, at Our sole discretion, and without liability determine whether any of the information requested by You is confidential, commercially sensitive and / or exempt from disclosure under the Freedom of Information Act 2000.
6.1 We will at all times keep confidential all information acquired as a consequence of the Agreement in respect of You or Your business, except for information already in the public domain or information which We are required to disclose by law, requested by any Regulator or reasonably required by Our professional advisors for the performance of their professional services.
6.2 You will at all times keep confidential all information acquired as a consequence of the Agreement in respect of Us, the Service or any Network Operator, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by Your professional advisors for the performance of their professional services.
6.3 Each of us will comply with the Data Protection Act 1998 (the “Act”) and all regulations made under that Act in the processing of any personal data, including the mobile telephone numbers of Your end-user who will be sent messages or voice calls (as applicable) as a consequence of making the Service available to You (such personal data referred hereto collectively as “End-User Data”), under or in connection with 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 in relation to the End-User Data and at all times to comply with obligations equivalent to those imposed 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 services 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 with terms no less stringent than the terms of this Agreement.
6.4 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 available to You and providing any technical support required. We will make no further use of Your End-User Data without Your specific authorisation.
7.1 Unless We otherwise agree in writing, We will provide online and telephone support in respect of the Service from 09:00 to 17:00 UK time, Monday to Friday (except for Bank Holidays in England and Wales), but outside such hours You may log a fault online at any time and We will use reasonable efforts to provide support in respect of the Service.
8.1 Each time any given Transaction is conducted, You will incur a corresponding Charge. Alternatively, You may wish to pre-purchase Transaction credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding number of Transaction credits for that period, 1 SMS message Transaction, for example, costing 1 corresponding unit Charge in pence (subject to any variation thereof) and allowing You to send 1 SMS message using the Service to UK handsets. Each Transaction that You conduct using the Service will therefore reduce the value of the Transaction credits available to You by 1 corresponding unit Charge in pence (subject to any variation thereof) to UK handsets. International messages use 2 SMS message Transactions, costing 2 corresponding unit charges in pence.
8.2 Text Marketer operate a policy of not expiring credits on live accounts. However, to keep our systems functioning as efficiently as possible, we will archive accounts that have been inactive for 12 months. We will notify customers via email 30 days in advance of this action. In the event that an account holder has been notified by email of an intent to archive the account and Text Marketer have received no response from the account holder any credits held will also be expired and cannot be reinstated.
8.3 You shall be solely responsible, by (i) seeking adequate Transaction credit allocation(s), (ii) negotiating and agreeing an appropriate level of credit with Us and (iii) checking Your remaining available Transaction credit level by logging in to your account on Our website at www.textmarketer.co.uk or contacting Us, for ensuring that You have enough Transaction credits and/or sufficient available credit(as applicable) to meet Your requirements from time to time. We shall not be in any way responsible or liable in the event that You have insufficient Transaction credits and/or sufficient available credit (as applicable) to meet Your requirements, and / or have exceeded Your Transaction credit allocation(s) and/or credit limit, for any period.
8.4 For the avoidance of doubt, a Charge will be incurred for every Transaction conducted by You regardless of whether the Transaction is successfully transmitted and/or received.
9.1 You warrant that You will not:
9.1.1 use the Service or permit the Service to be used to send messages or voice calls (as applicable) to any end-user for marketing purposes without that end-user’s explicit request for or prior consent to receiving them. If You are sending any messages for commercial purposes to any of Your end-users , You must give those end-users the right to opt out of receiving any further messages sent by You for commercial purposes (and You shall promptly process any end user’s election to opt out);
9.1.2 use the Service or permit the Service to be used to convey messages to any end user, the frequency and number of which is excessive in Our reasonable opinion;
9.1.3 use the Service or permit the Service to be used for any improper, fraudulent, immoral or unlawful purpose;
9.1.4 use the Service or permit the Service to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature;
9.1.5 use the Service or permit the Service to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
9.1.6 use the Service or permit the Service to be used in a manner that may injure or damage any person or property or cause the quality of the Service to be impaired.
9.2 You will at all times during the continuation of the Agreement:
9.2.1 send only messages or voice calls (as applicable) that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offence in view of the generally prevailing standards of decency and propriety from time to time;
9.2.2 comply with all reasonable directions and instructions issued by Us from time to time in relation to the Service;
9.2.3 comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
9.2.4 not act in any manner likely to bring Us, the Service or any Network Operator into disrepute.
9.3 You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Service that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete.
9.4 You will not state or imply any approval by Us of any particular message or voice call (as applicable) that You send using the Service or refer to Us in any way without Our prior written approval.
9.5 We may, at Our sole discretion:
9.5.1 cease to convey, and You will promptly cease to transmit at Our request, any message or voice call (as applicable); or
9.5.2 cease to enable, and You will promptly cease to carry out at Our request,
which We reasonably consider to be in breach of the Agreement.
9.6 You will not acquire any title or other proprietary right to any intellectual property, including (but not limited to) any patents, know-how, registered or unregistered trademarks, design rights or copyright, relating to the Service, nor will You cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services We provide to You.
9.7 You warrant that you will not:
9.7.1 modify or create derivative works of the software, programs, and other applications underlying the Service (the “Software”);
9.7.2 sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the Software, any portion thereof or any documentation to any third party; or
9.7.3 cause, assist or permit any third party (including an end-user) to do any of the foregoing. For the avoidance of doubt, the restrictions in this clause 9.7.3 do not prohibit You from embedding in Your own technology offerings the APIs that We make available to You for purposes of accessing the Service.
9.8 You warrant that You are the sole owner or licensor or 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.
10.1 Nothing in the Agreement 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.
10.2 We will not be in any way liable to You for any liabilities, losses, damages, costs and / or expenses incurred or suffered by You as either a Customer and / or a Non-billable Customer as a result of Your use of the Service, except to the extent that such liabilities, losses, damages, costs and / or expenses directly result from breach of this agreement, Our negligence or wilful misconduct.
10.3 We will not be in any way liable for the content of any messages and / or voice calls (as applicable) sent or transmitted using the Service, nor will We be in any way liable for any failure to make the Service available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control.
10.4 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 connection 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 are pre-purchasing Transaction credits, five (5) times the total value of Transaction credits pre-purchased by You under the Agreement (excluding any additional Customer Charges paid) in the preceding 12-month period.
10.5 Subject to any express provision to the contrary in the Agreement, neither You (as either a Customer or a Non-billable Customer) nor We will in any circumstances be liable in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable.
10.6 Each of us acknowledges that neither You (as a Customer) nor We have entered into the Agreement on the basis of or in reliance upon any representation (save for 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 to the greatest extent permitted by law.
10.7 We shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations and rules having equivalent effect.
11.1 Notwithstanding anything to the contrary herein, You expressly acknowledge and agree that:
11.1.1 Your use of the Service is at Your sole risk. The Service is provided on an “as is” 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;
11.1.2 We and Our licensors make no warranty that (i) the Service will meet your requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any information or other material obtained by you through the Service will meet your expectations, or (v) that any errors in the software associated with the Service will be corrected;
11.1.3 any material downloaded or otherwise obtained through the Service is done at Your own discretion and risk, and You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such material; and
11.1.4 no advice or information, whether oral or written, obtained by you from Us or through or from the Service shall create any warranty not expressly stated in this agreement.
12.1 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 limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and / or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion.
13.1 Any failure by either party to enforce any of the terms or conditions of the Agreement at any time will not be 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.
13.2 In the event that any of the terms or conditions of the Agreement are held to be invalid or unenforceable, this will not affect the validity or enforceability of all remaining terms and conditions.
13.3 The Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, arrangements, representations and understandings between the parties relating to the subject matter of the Agreement, provided that We may, from time to time:
13.3.1 make a change to any terms of the Agreement to take account of a change in the law, in which case we will, wherever possible, notify you in advance of any such change;
13.3.2 make a change to any material term of the Agreement to take account of any commercial or financial grounds outside of Our control (for example a change in the terms of the network providers or the provision of services by such network provides) provide that we shall notify you of any change to any material term of the Agreement and You shall within 30 days of the date of Our notice be entitled to terminate the Agreement; and
13.3.3 make a change to any term of the Agreement, which does not materially affect the Services by publishing notice of the change on Our website at www.textmarketer.co.uk and making the revised terms and conditions available on Our website.
These Terms and Conditions and any Contracts based upon them shall be governed by and construed in accordance with the laws of England and both parties irrevocably submit to the exclusive jurisdiction of the courts of England.