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1 |
Introduction |
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1.1
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You wish to use DataSMS's SMS Services (the “Service”) and we are willing to make the Service available to you, subject to the terms and conditions contained or referred to in this Agreement. |
1.2 |
The Service enables SMS messages to be sent to a GSM mobile phone, and for SMS messages to be received from a GSM mobile phone. |
1.3 |
The Service is made available as an Account. A unique code is allocated to the Account. |
1.4 |
The Service is accessed via a web application known as Desktop Messenger, Communication Engine or a web service. |
1.5 |
By signing the Agreement and returning it to us or when purchasing our silicone wristband you agree to be bound by these terms and conditions. |
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2 |
Availability And Interruption Of The Service |
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2.1 |
We will use all reasonable efforts to make the Service available at all times. |
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2.2 |
Subject to any suspension of the SMS Services under clause 2.5, we will use best efforts to make the Service available to you during Service Hours, where Service Hours are defined as UK business hours (09:00 GMT to 17:00 GMT, excluding Bank Holidays in England and Wales). |
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2.3 |
Receipt of messages by a third party cannot be guaranteed |
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2.4 |
We will use reasonable efforts to inform you without undue delay through email, and/or our web site(s) and other channels if any part of the Service is not available. |
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2.5 |
It may be necessary from time to time to suspend all or any part of the Service for routine or emergency maintenance and we will in so far as it is possible provide you with a reasonable period of notice prior to the suspension. |
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3 |
Confidentiality |
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3.1 |
Your data will only be used for the purposes of making the Service available to you and to provide any technical support required under clause 4 in relation to the Service. |
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3.2 |
No further use of data will be made without your specific written instructions. |
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4 |
Technical Support |
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4.1 |
On-line support is provided during UK business hours (09:00 GMT to 17:00 GMT). |
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4.2 |
Support outside these core hours is provided on a reasonable endeavours basis. |
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4.3 |
We will make all reasonable efforts to maintain the following service levels: |
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4.3.1 |
No single period of down-time shall exceed 8 business hours (except for emergency reasons or other circumstances beyond our reasonable control); |
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4.3.2 |
Response to support issues within 4 business hours; and |
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4.3.3 |
Prompt notification via our website of any system or support issues. |
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5 |
Fees, Billing, and Payment |
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5.1 |
You agree to pay all undisputed charges within the payment terms detailed in this Agreement. |
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5.2 |
If you do not pay these charges within the agreed payment terms we reserve the right to: |
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5.2.1 |
Use any deposit that you have provided to us as full or part payment of these charges. |
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5.2.2 |
Suspend your use of the service until full payment is received. You will continue to be liable for any regular charges during the period of suspension. |
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5.2.3 |
Charge you an additional administration fee for every month that the charges have been outstanding, calculated at 10% of the outstanding value. |
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5.3 |
We may vary our charges on giving you not less than 90 days' notice. If you do not agree to any charge variation you have the right ‘to terminate this Agreement on giving us at least one week's written notice to take effect on the effective date of the tariff change.’ |
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6 |
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6.1 |
The maximum liability of DataSMS Limited and its licensors arising out of any claim related to the products whether in contract, tort or otherwise shall be limited to the total amount of fees received by DataSMS Limited from you for the product at issue up to the time the cause of action giving rise to such liability occurred. In no event shall DataSMS Limited or its licensors be liable to you for any lost profits, or any other indirect, incidental, consequential, punitive or special damages related to the use of the products or DataSMS's failure to perform its obligations under this agreement, regardless of whether DataSMS or its licensors are deemed negligent, even if it is advised of the possibility of such damages. |
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6.2 |
Save as expressly set out in this Agreement, we will not be liable to you for any other loss or damage arising out of your use of the Service, including those circumstances where such loss or damage is indirect, consequential, or special. |
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6.3 |
You are responsible for the content of any messages that you send and/or receive via the Service, according to the generally applicable laws. We accept no liability for the content of the messages transmitted on the Service. You undertake to indemnify us for any claims by third parties arising as a result of the content of messages sent or received by you via the Service. |
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7 |
Contract Period And Termination
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7.1 |
Save as expressly set out in this Agreement, this Agreement shall be for an initial minimum 12 months (the “minimum contract period”) and shall continue thereafter, unless otherwise agreed. |
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7.2 |
If you wish to terminate this Agreement, you must give 30 days' written notice to expire on or any time after the expiry of the minimum contract period. |
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7.3 |
Either party may also terminate this Agreement with immediate effect by notice to the other party, if the other party commits a material breach of this Agreement or becomes insolvent under the laws of any applicable jurisdiction. |
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7.4 |
If you use (or we suspect that you are using) the Service to send or receive messages which contain sexual, racist or discriminatory references or to send any messages which the receiver does not agree to receive or by which they are illegally molested, we reserve the right to suspend the Service or terminate this Agreement immediately. |
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7.5 |
You have the right to terminate this Agreement immediately by notice in writing and without liability if we fail to meet the service levels specified in clause 4.3 in any two consecutive months. |
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8 |
Forces Majeure |
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8.1 |
Neither party will be liable for any failure to perform any of its obligations under this Agreement that is caused by circumstances beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of telecommunications, data communications and computer services. |
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9 |
General |
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9.1 |
This Agreement contains the entire understanding between the parties with respect to the subject matter, supersedes all previous agreements and understandings between the parties and may only be modified in writing in accordance with the terms of this Agreement. |
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10 |
Notices |
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10.1 |
All notices to be served in accordance with this Agreement must be served by pre-paid first class post or facsimile. All invoices and notices served by post will be sent to the address given by you on registration unless we are notified of a change to this address. |
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10.2 |
Notices will be deemed served 48 hours after they are sent, or on earlier proof of delivery. |
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11 |
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11.1 |
A party that is not a party to this Agreement has no right to enforce or rely on any provision of this Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise. |
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12 |
Choice of Law |
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12.1 |
This Agreement is governed by and shall be construed in accordance with the laws of England and the parties agree to the exclusive jurisdiction of the English courts. |
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