We supply Services to you under your Customer Contract. You should read your Customer Contract including all parts that relate to the Services provided to you to understand your rights and obligations. If you do not agree to these terms, you should not proceed to sign an order form, create an account or use our Services.
Our Services are intended for your legitimate business or commercial use only and you must comply with our Acceptable Use Policy.
Your Customer Contract comprises, in order of precedence:
(a) your Order Form;
(b) the terms of your Plan;
(c) the Product Terms;
(d) the following Parts:
These terms will apply:
If you have a separate agreement with us for the use of our Services, these terms will not apply unless we have a right to update those terms from time to time.
Unless otherwise agreed to in writing with us, your Customer Contract will be between you and:
The terms below will continue to apply until 11 October 2023, following which they will be removed from this webpage.
Your Contract with Us
(a) We supply Services to you under your Customer Contract. Your Customer Contract comprises, in order of precedence from highest to lowest:
(b) The parties to your Customer Contract are the Customer (you) and the Supplier (we, us).
(a) The Customer Contract will continue until the end of the Minimum Term and thereafter on a month to month basis until it is terminated in accordance with this Customer Contract.
(b) If your Plan or Application Form states that there is no Minimum Term or is described as month-to-month, casual or no contract or similar, either party may terminate it on 30 days’ notice at any time without penalty.
(c) Your Customer Contract will commence upon our acceptance of your Application Form or when we commence providing the Services to you, whichever happens first (the “Commencement Date”).
Provision of Our Services
(a) We will provide to you a non-exclusive, non-transferable, licence for the Services subject to the terms of your Customer Contract.
(b) We may provide the Services using such facilities and such Carriers as we choose from time to time.
(c) We may provide the Services using Our Facilities and/or third party Provider Facilities. Together, we call those Facilities our Network.
If your Application Form states:
(a) that we are to be your preferred supplier then you must not engage a third party to provide to you more than 10% of your total requirements for the Messaging Services or services substantially similar to the Messaging Services; or
(b) that we are to be your exclusive supplier then you must not engage a third party to provide to you any Messaging Services or services substantially similar to the Messaging Services.
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5(a) or clause 5(b).
(a) If your Plan or Application Form states that you are required to pay a Monthly Access Fee:
(i) you will receive Message Credits as stated in your Plan or Application Form, which may be redeemed by you against Message Fees incurred during that month (also called “Periodic Entitlements); and
(ii) the Monthly Access Fee is billed in advance for the applicable month for all Plans, including Plans where Charges are payable in arrears.
(b) Unused Periodic Entitlements are not refundable, do not carry forward and are not redeemable for cash or other credit.
(c) If you exceed your Periodic Entitlements, extra Charges may apply or a Service may be limited in some way. Your Plan or Application Form will give details.
(a) You must comply with any applicable Acceptable Use Policy or any Anti-Spam Policy we publish on our website or make available to you.
(b) You must comply with any policy we publish on our website or make available to you directed to ensuring that the use of a Service complies with all Laws.
(a) Acting reasonably, we may give Operational Directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(b) You must comply with any applicable Operational Direction.
You promise that you are not a Carrier or a Carriage Service Provider.
(a) Telecommunications Services, including many of our Services, are commonly provided by means of Provider Facilities, provided by third party Providers.
(b) A Provider may only permit us to provide Service to you subject to certain requirements (Provider Requirements).
(c) You must comply with any applicable Provider Requirements we notify.
(d) Where a Provider Requirement states that a Provider has a certain right or power:
(i) the Provider itself may exercise that right or power; or
(ii) we may exercise the right or power on behalf of the Provider.
(a) Unless your Application Form states that we have appointed you as a Reseller, you must not share, resell or resupply a Service for remuneration or reward.
(b) The acts and omissions of your Staff and End Users with respect to a Service are deemed to be your acts and omissions.
(c) You must ensure that your Staff and End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.
Using a Service may depend on you having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. You are solely responsible for the costs of all third party goods and services you acquire.
(a) When using a Service, you must comply with:
(i) your Customer Contract (including any applicable Acceptable Use Policy or Anti-Spam Policy); and
(ii) any applicable Laws.
(b) You must not use a Service, and you must Ensure that your End Users do not use a Service:
(i) to send Restricted Content;
(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose;
(iii) to defame any person;
(iv) to breach the rights of any person;
(v) to infringe copyright;
(vi) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;
(vii) to host or transmit Content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(viii) to send, allow to be sent, or assist in the sending of Spam;
(ix) in a way that is misleading or deceptive, where that is contrary to Law;
(x) in a way that results, or is likely to result, in damage to property or injury to any person;
(xi) to transmit, store or process Cardholder Data; or
(xii) in any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.
(c) You are solely responsible for all acts or omissions that occur under your Account including any password provided to you by us, and the Content of any Messages transmitted through the Service. You acknowledge and agree that any Messages sent using your Account are deemed to have been sent and/or authorised by you.
(d) If you integrate or request us to integrate your account with a third party application or platform, you are solely responsible for such integration. We have no control over any third party application or platform and we are not liable for any transaction you enter into with them. You are responsible for ensuring you comply with any terms of service relevant to the third party and we are not liable for any suspension or termination of the service resulting from your use of the Services. You warrant that your use of the Messaging Services will not infringe the terms and conditions of any third party applications or platforms.
(e) From time to time third parties may recommend our services to new customers. If a third party has referred you to our services we may pay that third party a commission. Any commission paid will not affect the Charges you pay to us. In order to calculate the commission we pay, we may also provide the third party with information about the number of messages you send in a certain period (we will not give them any other information about your Account, message content or other data) and you consent to us doing so.
(f) You must take steps to prevent unauthorised access to a Service and ensure that best security practices are followed, for example, by using strong passwords, not disclosing your log in credentials, by securing any web APIs, and by implementing multi-factor authentication. You indemnify us against any claim, cost, loss or liability which may arise in connection with your failure to comply with your obligations under this clause 15(f).
(g) If you use or facilitate authentication via any social network in the sign-up and/or sign-in process in the course of using the Services, you indemnify us against any claim, cost, loss or liability which may arise in connection with such use or facilitation.
(h) If you use Alpha-tags and Sender IDs in the course of using the Services, then you warrant and represent that you have a verifiable use case for such use in accordance with applicable Law and you indemnify us against any claim, cost, loss or liability which may arise in connection with your breach of your warranty and representation under this clause 15(h).
(i) If we incur costs (including but not limited to increased Carrier fees and charges, surcharges or taxes) in connection with your failure to comply with your obligations under this clause 15, you acknowledge and agree that you are responsible for these costs and that we may pass these costs onto you by increasing the amount of the Charges in our sole discretion.
(a) We must comply with the Numbering Rules
(b) You must not knowingly and deliberately:
(i) do anything that causes us to breach the Numbering Rules or which makes it more difficult for us to comply with such rules; or
(ii) relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
(a) Messaging Services are not a portable service.
(b) A number we use in association with your Account:
(i) is not a portable number; and
(ii) is not subject to number portability.
(c) Any Shared Number or Dedicated Number used in association with your Account has not been issued to you. You acknowledge that we retain ownership of any Dedicated Number used in association with your Account and you have no right to retain a particular number when your Customer Contract ends.
(d) We retain all rights, obligations and liabilities under the Numbering Rules and other legislation relevant to such numbers.
(e) If your Application Form states that we will provide you with a Dedicated Number/s (inbound or outbound) we will provide you with use of those Dedicated Numbers in accordance with clauses 16 and 17.
(a) If, despite clause 17, we agree to transfer a Shared Number or a Dedicated Number to you; or a mobile service number from you for use in connection with an Account, then as far as the law allows, you release us and our third party supplier/s from all liability to you, and you indemnify us and them against all costs, expenses, liability, loss or damage incurred or suffered by us or them in conjunction with any claims, actions or proceedings against us or them (including third party claims or claims by you) arising out of the following:
(a) our inability to transfer-in or transfer-out the number; or
(b) the fact that the number is not, or ceases to be, available for use in connection with an Account.
(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
(b) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(c) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by equipment, which is not part of the Network.
(d) You must not report a fault directly to one of our Providers unless we ask you to do so.
(e) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
(f) We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.
(g) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.
(h) You are responsible for maintaining and repairing your own equipment.
(i) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.
(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
(b) You acknowledge that we or a Provider may be required to:
(i) intercept communications over the Service, and
(ii) monitor usage of the Service and communications over it.
(iii) retain and store data, including metadata,
as required to comply with all applicable Laws and you consent to such action being taken.
Confidentiality, Intellectual Property, Electronic Communications and Privacy
(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:
(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of your Customer Contract;
(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of your Customer Contract, if that person undertakes to keep confidential the Confidential Information;
(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(iv) with the prior written approval of the Disclosing Party; or
(v) as otherwise required by law to disclose such information.
(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
(c) Despite anything else contained in this Customer Contract and in particular in this clause 21 but subject always to compliance with the Data Protection Legislation, we retain the unconditional and irrevocable right to disclose your identity and address and those of any of your Staff or End Users if we are compelled to do so by any regulatory or Government body or Carrier, in connection with this Customer Contract, and by entering into this Customer Contract you hereby warrant that you have obtained the relevant consent of your Staff and End Users to permit such disclosure.
(d) Nothing in this clause 21 prevents us from naming you as a customer and user of our Services in our marketing materials.
(a) The parties agree that other than as provided in this clause 22, nothing in your Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of your Customer Contract (Pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free licence to use, during the term of your Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under your Customer Contract.
(a) You warrant and undertake at all times to comply (and to ensure that your Staff and End Users also comply) with your obligations under the Privacy and Electronic Communications Regulations and the Ecommerce Regulations, in particular, you:
(i) warrant and represent that End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages as required by any applicable Law or regulation.
(ii) agree that you will include clear opt-out/unsubscribe information on your Messages when required to do so by any applicable Law or regulation; and
(iii) will adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages
(b) You indemnify us for any Claim which results from your breach of paragraph (a) above.
(c) We warrant and represent that the Services include the maintenance of a functioning and effective unsubscribe process that complies with the Privacy and Electronic Communications Regulations.
(a) If a party is provided with, or has access to Personal Data in connection with the Services, it must comply with the Data Protection Legislation and any other applicable law in respect of that Personal Data, whether or not it is an organisation bound to comply with the provisions of the Data Protection Legislation. Details of our privacy policy can be found on our website.
(b) The subject matter of the Processing by us shall be the performance of this Customer Contract. The nature and purpose of the Processing shall be the provision of the Services. The duration of the Processing shall be the duration of this Customer Contract.
(c) With effect from 25 May 2018, we shall:
(i) only Processing Personal Data on your behalf in accordance with, your instructions and for the purposes set out in this Customer Contract;
(ii) implement appropriate technical and organisational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing.
(iii) ensure that any of our personnel engaged in the Processing are subject to a duty of confidentiality.
(iv) co-operate with you if you are required to deal or comply with any assessment, enquiry, notice or investigation by the Information Commissioner, to assist you in complying with such assessment, enquiry, notice or investigation.
(v) notify you if we receive a request from a Data Subject for access to Personal Data, and shall provide you with reasonable co-operation and assistance in relation to any such request.
(vi) inform you without undue delay if at any time any Personal Data is or is suspected to be, lost, corrupted, used or disclosed to a third party except in accordance with this Customer Contract and provide reasonable assistance to you in relation to your obligation to notify Data Subjects or a supervisory authority.
(d) You acknowledge that in providing the Services, Personal Data may be transferred outside the European Economic Area under your Customer Contract and each party undertakes to comply with its obligations under the Model Clauses.
(e) You hereby consent to the sub-processing of Personal Data by a Provider. We shall only appoint additional sub-processors where we have your prior consent to do so and where we have written terms in place with the sub-processor which reflect these terms.
(f) You warrant that you have provided a fair processing notice to End Users that notifies them of our Processing activities and that where our Processing of Personal Data on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.
(g) On termination of this Client Contract, we shall delete all Personal Data that you have provided to us, unless we are required by law to retain it (in which case, we will not actively process it after the termination date).
(h) You may, not more than once in any 12 month period and on giving at least 30 days’ written notice, conduct an audit of our Processing of Personal Data under this Client Contract. We shall mutually agree on the scope, timing and duration of the audit. The audit shall exclude any personnel records and any data, systems and facilities which are subject to confidentiality obligations to third parties. You shall not be entitled to take copies of any information.
(i) You indemnify us for any Claim by your Staff, End Users or any other third party that it has suffered Loss as a result of your breach of paragraphs (b), (e) or (g) above.
Credit Management
We may, at any time, make supply of Service conditional on you providing and/or maintaining security and/or third party guarantees to our reasonable satisfaction.
(a) At our discretion, we may obtain a credit report about you to help us decide whether to accept your application for service and to help us collect overdue amounts. In the course of a credit check, we may disclose Personal Information about you to a credit reporting agency or other credit information provider. We may receive a credit report and other information about you, including Personal Information. A credit reporting agency may include the fact that we obtained a credit report about you in its credit information file on you.
(b) We may disclose to a credit reporting agency: information in your application, details of your account, that you have applied for credit with us, that we are a current credit provider to you, payments that are more than 60 days overdue and are subject to collection processes, any cheque of yours for £100 or more which has been dishonoured more than once, any serious credit infringement you have committed or that payments are no longer overdue.
(c) We may disclose information about you and any debt you owe us to:
(i) a debt collection service we engage; and
(ii) anyone who takes, or is considering taking, an assignment of any debt you owe us.
(d) Your consents
(i) If you are an individual, you agree that we can conduct a credit check and verify your personal details, in accordance with this clause.
(ii) If you are self-employed, you agree that we can:
(A) obtain and use any report or information from a credit reporting agency, which contains information about your commercial activities or commercial credit worthiness;
(B) exchange with your other credit providers, any credit report or other report about your credit worthiness or history, or personal information contained in those reports –
in accordance with this clause.
(e) You acknowledge that credit and other information about you may be used:
(i) to assess your application,
(ii) to assist you to avoid defaulting on your credit obligations,
(iii) to notify other credit providers of a default by you,
(iv) to assess your creditworthiness.
Prices, Billing and Payment Terms
(a) You agree to pay our Charges in accordance with the terms of your Customer Contract.
(b) Except as provided in clause 26(c), our current prices as published on our website or otherwise notified to you at any time, are referred to as our ‘Price List’. The Price List may be amended from time-to-time without further notice to you.
(c) If the price for a service is not listed in our Price List, for example the price for international SMS, we may charge you a fee equal to the cost to us of providing that service, including without limitation the costs associated with Carrier surcharges plus a reasonable margin. Our international rates change frequently and we reserve the right to adjust our Charges for international services accordingly without notice.
(d) Our Charges may include the charges and costs which we are charged by third parties (including, without limitation, any charges imposed by Providers or by credit card providers or other payment merchants) in connection with the provision of the Services (Third Party Charges). If any such Third Party Charges increase, then we may pass the increased Third Party Charges on to you by increasing the amount of the Charges accordingly.
(e) Unless specifically provided otherwise in your Application Form or elsewhere in your Customer Contract, our Charges are in GBP or Euros. We will calculate any international currency conversions using an exchange rate from a reputable independent provider which we elect to use for currency conversions. Currency conversions will be calculated at or about the time payment of the relevant Charge is made and, as there can be fluctuations in the exchange rates, the amount which you are actually charged may differ to Charge which was previously published or notified to you. If our costs of providing the Services to you are increased due to fluctuations in relevant foreign currency exchange rates, we may pass on those increased costs to you as set out in clause 26(d).
(f) You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. We may make an extra Charge if you send any Messages that are not Standard Rate Messages, equal to the amount charged to us by the Carrier plus a reasonable margin.
(g) You must pay for every Message despatched using the Messaging Services irrespective of receipt by the intended recipient.
(h) On written request received within 30 days of the Message being despatched, we will provide evidence that the Message was delivered to the relevant Carrier or Provider.
(i) Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.
(j) Our Charges for multichannel messaging / messaging on social channels (for example Messenger, Instagram Direct, Google Business Messages or WhatsApp) are charged per Conversation.
Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.
Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:
(a) If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.
(b) If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.
(c) A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.
(d) Each press of a ‘spacebar’ generates a separate character.
(e) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.
(f) Where an SMS is sent to multiple End Users, each one is counted separately.
Charges for an MMS Service will be based on the size and number of MMS you send, calculated in accordance with the following rules:
(a) Content that contains no more than 215kB is charged at the Standard Rate (as defined in your Plan or Application Form).
(b) Content that contains between 216kB and 350kB is charged at the First Tier Premium Rate (as defined in your Plan or Application Form).
(c) Content that contains more than 351kB up to 2000kB is charged at the Second Tier Premium Rate (as defined in your Plan or Application Form).
(d) Where an MMS is sent to multiple End Users, each one is counted separately.
(a) Your ‘Billing Period’ is the period between Bills. Unless your Application Form states otherwise, our standard Billing Period is monthly.
(b) Bills may relate to a part-period eg to align your Billing Period with the first day of each month.
(c) We will issue you with a Bill for each Billing Period. Subject to clause 29(d) and (e), our Bills will be issued within 10 Business Days after the end of a Billing Period.
(d) If your Application Form provides for “Sign-up Date Billing”, then:
(i) you will be issued a Bill on the date that the relevant Service commences and on that same day of each following month while your Customer Contract remains in effect; and
(ii) the Charges in each such Bill will be in respect of the period from the date of the Bill until the same day of the next month.
(e) We reserve the right to issue Bills outside of the usual Billing cycle described above, for example if we see an unusual volume in traffic or if we consider there are other unusual circumstances that warrant an out-of-cycle Bill being issued to you.
(a) We may charge you an extra Charge if:
(i) you request non-standard information about your Bill or Charges, or
(ii) you ask us to deliver a Bill by a method that is not the standard method for a Plan.
(b) If you request a paper Bill when that is not the standard method for a Plan, the extra Charge is GBP5 per Bill, or as otherwise notified in our Price List.
Some Charges in a Bill may relate to a previous Billing Period, if such Charges were not included in any previous Bill or remain unpaid. We do not waive our right to require payment of applicable Charges by not including the Charges in a Bill.
(a) Where a Direct Debit or credit card arrangement applies, we may Extract payment for Charges:
(i) 14 days after they are billed (if we issue a Bill for the Service); or
(ii) 14 days after the end of the current Billing Period (if we do not issue a Bill for the Service).
(b) If any Bill is overdue for payment, you must pay that Bill and any other Bill immediately.
(c) You must pay a Bill within 14 days after the date of the Bill, unless your Application Form or Plan states otherwise.
(a) If your Plan or Application Form specifies ‘Direct Debit only’ (or similar) then:
(i) Direct Debit payment is a precondition to supply of Service to you.
(ii) We may suspend Service if Direct Debit arrangements are not maintained. We are under no obligation to provide any notice of a suspension of Service under this clause 33(a)(ii). Our right to suspend Service under this clause 33(a)(ii) is not waived or otherwise affected by any notification we provide to you in relation to your failure to maintain Direct Debit arrangements.
(iii) You must not cause to be reversed any Direct Debit payment to us, unless you have our prior written approval. Otherwise, you must pay our reasonable costs (including legal fees if necessary) of reinstating the transaction.
(b) In any other case:
(i) Direct Debit is our preferred payment method and incurs no surcharges.
(ii) You may pay by MasterCard or Visa or any other card we notify you that we accept.
(iii) Payments made using credit cards may be subject to a surcharge as per our current Price List. Unless the Price List specifies other amounts, non-Direct Debit payments attract a monthly surcharge of GBP5 and, in addition to our usual credit card processing fee, Amex or Diners Club will attract an extra 2% surcharge.
(c) If any payment you make is dishonoured, we may charge you a reasonable payment dishonour fee and recover from you any fees: (i) charged by our bank which result from the dishonoured payment; and (ii) any costs that we incur in engaging debt collection agencies to recover dishonoured payments.
If a Bill is not paid on time:
(a) you are in breach of your Customer Contract;
(b) we may also charge:
(i) interest at the [90-Day Bank Accepted Bill Rate published by the Reserve Bank of Australia] plus 2% from the date of the Bill until it is paid in full; and
(ii) a reasonable late fee; and
(iii) any collection fees and expenses that we incur; and
(c) we will be entitled to charge you any costs that we incur in engaging debt collection agencies to recover unpaid amounts in a Bill
(a) Our records of what you owe us are deemed to be right unless you show them to be wrong.
(b) If you dispute a Bill, you must pay it on time and without set off. We shall credit you if it is later determined that you are entitled to a credit.
(c) You may not raise a billing dispute more than 12 months after a Bill is issued, and we will not pay a refund or give a credit in respect of a period prior to that.VAT
(d) Amounts payable under your Customer Contract are taken to be VAT inclusive unless they are expressed to be ‘VAT exclusive’, ‘+ VAT’ or similar.
(e) Where any amount is VAT exclusive, you shall be responsible for paying the VAT amount in addition to the Charges.
(f) We may recover any VAT payable under this clause in the same manner as our Charges.
Warranties and Indemnities
(a) we are only liable for the remedy or rebate specified by the SLA (if any); and
(b) subject to the express terms of the SLA, our liability for breach of the SLA is limited to such remedy or rebate; and
(c) you agree we are not liable for any failure, for any reason, to supply the Services in accordance with the SLA.
You agree and acknowledge that:
(a) any representation, warranty, condition, guarantee or undertaking that would be implied in your Customer Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Customer Contract to the fullest extent permitted by law;
(b) we do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
(a) Subject to clause 44, you must indemnify us for any loss or damage we suffer arising from or in connection with:
(i) your breach of your Customer Contract;
(ii) all Content sent or received on your Account;
(iii) any wilful or negligent act or omission by you, your employees, agents or contractors;
(iv) a Claim against us by your Staff, any End User or any third party arising out of or in relation to your use of the Services and/or Equipment;
(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and
(vi) acts or omissions of End Users;
except to the extent that we are negligent or caused or contributed to the loss or damage.
(b) Your obligations under this clause survive termination of your Customer Contract.
(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) If we incur any expenses under paragraph (a), you must reimburse them on request.
(c) Your obligations under this clause survive termination of your Customer Contract.
(a) Subject to clause 44, we must indemnify you for any loss or damage you suffer arising from or in connection with:
(i) our breach of your Customer Contract;
(ii) any wilful or negligent act or omission by us, our employees, agents or contractors;
(iii) a Claim against you by any End User in relation to a Service we supply to you arising out of our negligence in supplying the Services to you; and
(iv) our supply of the Services in a way that breaches any Law or infringes the rights of any third party;
except to the extent that you are negligent or caused or contributed to the loss or damage.
(b) Our obligations under this clause survive termination of your Customer Contract.
(a) To the maximum extent permitted by law, the parties agree:
(i) that the maximum cumulative liability of a party under or in connection with this Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under this Customer Contract in the 12 months preceding the incident or event giving rise to the liability;
(ii) that neither party will be liable to the other party for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of your Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.
(iii) without limiting clause 42(a)(i) or (ii) above or any other liability limitation or exclusion applicable under your Customer Contract, we and our Related Bodies Corporate disclaim all liability whatsoever that may arise from your use of any third-party products and our licensors will have no liability of any kind whatsoever under your Customer Contract; and
(iv) that a party may only bring a claim against the other in its individual capacity, and not as plaintiff or class member in any purported class action or representative proceeding.
(b) Nothing in this document limits or excludes the liability of a party for claims relating to:
(i) personal injury or death directly arising from that party’s negligent acts or omissions;
(ii) fraud or fraudulent misrepresentation;
(iii) infringement of intellectual property rights;
(iv) fees and Charges payable;
(v) or for which liability may not otherwise lawfully be limited or excluded.
Termination and Suspension
We may, by written notice to you, terminate your Customer Contract:
(a) at any time (except during the period of the Minimum Term), on 30 days’ written notice to you;
(b) immediately if you are in material breach of your Customer Contract (including but not limited to a failure to pay us on time, a breach of the Acceptable Use Policy or a breach of the Anti-Spam Policy) and you fail to remedy such breach within 14 days of being served notice to do so;
(c) immediately if you breach clause 5(a) (preferred supplier) or 5(b) (exclusive supplier) and you fail to remedy such breach within 14 days of being served notice to do so;
(d) immediately if you suffer an Insolvency Event;
(e) immediately if we become entitled to suspend the Service, and the suspension continues for more than a month;
(f) immediately if we reasonably suspect that you, your Staff or your End User has infringed or attempted to infringe our Intellectual Property Rights;
(g) immediately if you cause to be reversed any Direct Debit or credit card payment to us (except with our prior written agreement);
(h) immediately if it is necessary to do so in order to comply with a warrant or other court order, or as otherwise required or authorised by law;
(i) immediately if we reasonably suspect fraud or attempted fraud involving the Service;
(j) immediately if you are, or become, a Carrier or Carriage Service provider; or
(k) in any other circumstances stated elsewhere in your Customer Contract.
You may terminate your Customer Contract:
(a) at any time (except during the period of the Minimum Term) on 30 days’ written notice to us;
(b) immediately, by giving us written notice, if we are in material breach of your Customer Contract and we fail to remedy that breach within 14 days of being served notice to do so;
(c) immediately, by giving us written notice, if we suffer an Insolvency Event;
(d) by giving us 14 days’ written notice, if an Intervening Event occurs and you are unable to use the Service for more than 30 days;
(e) by giving us 14 days’ written notice, if you reasonably suspect that we have infringed or attempted to infringe your Intellectual Property Rights; or
(f) in any other circumstances stated elsewhere in your Customer Contract.
45 Consequences of Termination
If your Customer Contract ends:
(a) if your Customer Contract ends during the period of the Minimum Term then you will be required to immediately pay us the Early Termination Fee (other than if you terminate your Customer Contract pursuant to clauses 46(b), 46(c), 46(d), 46(e) or 46(f)). You acknowledge and agree that any liability to pay us an Early Termination Fee does not prejudice any other right we may have to claim damages as a result of the termination.
(b) our obligations to you under your Customer Contract are at an end;
(c) you must immediately cease use of any of our Services supplied under that Contract;
(d) we may bill you for any Services we have not yet invoiced and all other amounts we are entitled to under your Customer Contract;
(e) all Bills are payable immediately;
(f) you authorise us to recover any outstanding Charges and Early Termination Fees from any overpayment you have made, or Direct Debit them from your credit card or bank account if you normally pay by Direct Debit;
(g) it does not affect the accrued rights or liabilities of either party; and
(h) it does not affect the provisions which expressly or by implication are intended to operate after termination including, without limitation clauses 21, 22, 23 and 24 and the limitations of liability and rights of indemnity.
46 Suspension of Service
(a) We may suspend a Service or all Services at any time, without liability and without any requirement to provide notice to you, if:
(i) there are problems with the Network, or we or our Providers need to suspend the Services to conduct operational and maintenance work on the Network;
(ii) you fail to pay any amount owing to us in respect of the Service under your Customer Contract (which is not the subject of a bona fide dispute) by the due date, and you fail to pay that amount within the period specified in any subsequent notice we send you;
(iii) you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy or any Data Protection Legislation;
(iv) there is an emergency;
(v) there is a threat or risk to the security of the Service or integrity of the Network;
(vi) the Service may cause death, personal injury or damage to property;
(vii) we are required to do so to comply with any Law or direction of any Regulator;
(viii) an Intervening Event occurs;
(ix) your Account remains inactive for a period of 12 months or more;
(x) we exercise discretion to block a Service in relation to a specific overseas territory, for any reason that we consider appropriate;or
(xi) we are otherwise entitled to do so under your Customer Contract.
(b) Whilst we are under no obligation to provide any notice of a suspension of Service under clause 47(a), our right to suspend Service under clause 47(a) is not waived or otherwise affected by any notification we provide to you in relation to the circumstances or events that rise to our right to suspend Service.
47 Charges during a period of suspension
If we suspend Service:
(a) because of your fault or breach of your Customer Contract – you remain liable for all Charges payable under your Customer Contract during the period of suspension;
(b) otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.
General
48 General power to vary your Customer Contract
Subject to clause 49 and without limiting our rights under clauses 27(b) – (e):,
(a) we may vary your Customer Contract from time to time on 14 days’ written notice to you; and
(b) any variations that have been deemed to be accepted pursuant to clause 49 will take effect 15 days after the date of any notice.
49 Customer Right to terminate on Receipt of Notice of Variation
If you do not accept the variation set out in a notice from us pursuant to clause 48 you must notify us in writing within 14 days. If you fail to do so, you will be deemed to have accepted the variation. If you notify us that you do not agree to the variation, then we must discuss the proposed variation in good faith. If no agreement on the variation is achieved within 10 Business Days either party may terminate this Customer Contract by providing 30 days’ written notice to the other party and no Early Termination Fee will be payable.
50 Acknowledgments
You acknowledge that:
(a) there has been no reliance by you on our skill or judgement or written or oral representations in deciding whether our Service is fit for a particular purpose or meets particular criteria;
(b) the internet is not an inherently secure system and you undertake responsibility for the protection of your information and data;
(c) internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within your system, and that we have no control over these viruses; and
(d) we do not provide any filtering or checking of data to eliminate these viruses, and you agree to provide your own mechanism for checking your system for viruses, and to indemnify us against any damage caused by viruses obtained through the Service.
51 Assignment
(a) We may assign or novate all or part of our rights and obligations under your Customer Contract without your consent.
(b) You cannot assign or novate all or part of your rights and obligations under your Customer Contract unless we agree in writing.
52 Governing law
Your Customer Contract is governed by and must be construed in accordance with the laws of Victoria. You and we submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.
53 Entire agreement
Your Customer Contract is the entire agreement between you and us regarding its subject matter, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
54 Delays
(a) Time is not of the essence in the performance of our obligations, including the provision of Services, under your Customer Contract.
(b) We are not liable to you for any delay in the provision of any Service.
(c) You may not cancel or amend an order for a service on the grounds of any delay in providing it.
55 No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Customer Contract (such as a right that we have due to your breach of your Customer Contract) does not operate as a waiver of the power or right.
56 Commercial Electronic Messaging
(a) Subject to this clause, we may send you unsolicited commercial electronic messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.
(b) You consent under clause 57(a):
(i) applies while your Customer Contract is in force and for a year afterwards; but
(ii) terminates if you give us reasonable written notice that it is withdrawn.
(c) This clause 57 survives the termination of your Customer Contract.
Interpretation and Dictionary
57 Interpreting your Customer Contract
(a) If an expression is defined in the Dictionary in clause 59, that is what it means.
(b) If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if ‘to colour’ means ‘to paint blue’, then ‘coloured’ means ‘painted blue’.)
(c) Expressions like ‘includes’, ‘including’, ‘eg’ and ‘such as’ are not words of limitation. Any examples that follow them are not to be taken as an exhaustive list.
(d) Headings are only for convenience. They are to be ignored when interpreting our Customer Terms.
(e) A schedule to a document is part of that document.
(f) A reference to the singular includes the plural and vice versa.
(g) There is no significance in the use of gender-specific language.
(h) A ‘person’ includes any entity which can sue and be sued.
(i) A ‘person’ includes any legal successor to or representative of that person.
(j) A reference to a law includes any amendment or replacement of that law.
(k) Anything that is unenforceable must be read down, to the point of severance if necessary.
(l) Anything we can do, we may do through an appropriately authorised representative.
(m) Any matter in our discretion is in our absolute and unfettered discretion.
(n) A reference to a document includes the document as modified from time to time and any document replacing it.
(o) The word ‘month’ means calendar month and ‘year’ means 12 months.
(p) The words ‘in writing’ include any communication sent by letter or email or any other form of communication capable of being read by the recipient.
(q) A reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time.
(r) Money amounts are stated in Euros or GBP unless otherwise specified.
58 Dictionary
The expression: | means: |
Acceptable Use Policy | a policy so titled and issued under clause 9 |
Account | the Customer’s entitlement to Messaging Services subject to your Customer Contract and, where relevant, includes any Service features, associated usernames or passwords |
Anti-Spam Policy | a policy so titled and issued under clause 9 |
API | an application programming interface |
Application or Application Form | your application to us to access Messaging Services, in a form we specify from time to time which may also contain features, entitlements, Charges and special conditions in connection with a Service |
Automatic Direct Debit | a periodic payment that is automatically deducted by us from your nominated financial institution account |
Bill | an invoice from us which advises you of the total of each Charge that is due for payment |
Billing Period | see clause 30(a) |
Business Day | a week day on which trading banks are open for the transaction of banking business in Melbourne, Victoria |
Cardholder Data | cardholder name, expiration date, and/or service code and such other cardholder data included in the applicable definition of Cardholder Data in the PCI Security Standards from time to time |
Carriage Service | a service for carrying communications by means of guided and/or unguided electromagnetic energy |
Carrier | an entity that operates a telecommunications network |
Charges | fees and/or charges applicable under your Customer Contract |
Claim | any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim) |
Commencement Date | is defined in clause 3(c) |
Confidential Information | in relation to each party (for the purposes of this definition, the Discloser):
|
Content | the content of a Message you send or receive |
Conversation | for the purposes of clause 27(j) in the context of multichannel messaging / messaging on social channels, means a 24-hour session of unlimited two-way messaging with one End User on one social channel, commencing with the first business-initiated message sent in reply to an End User message |
Customer | the customer named in the Application Form |
Customer Contract | see clause 2 |
Customer Terms | the terms and conditions set out in Part A of this document |
Data Protection Legislation | in the UK: the Data Protection Act 1998, the Data Protection Directive (95/46/EC), with effect from 25 May 2015: the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SE 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications Regulations; and in Australia: the Privacy Act 1988 (Cth) and any other Laws relating to the processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by Regulators |
Dedicated Number | a digital mobile service number provided by us to you under your Customer Contract for exclusive use by you as part of your Messaging Service |
Design Services | the design and creation of text and/or images used in an SMS and/or MMS and includes, without limitation, concepts, ideas, innovation and development work to further enhance the Messaging Services. Design Services may also include the management of the delivery or execution of a process or campaign on behalf of the Customer |
Direct Debit | a payment that is deducted by us from your nominated financial institution account, including an Automatic Direct Debit |
Early Termination Fee | is calculated as a genuine pre-estimate of our loss of net profits and wasted costs as a result of any early termination within the Minimum Term under clause 44(a), following our reasonable steps to mitigate our loss, which is calculated in accordance with the following formula – (45% of the average monthly amount we have invoiced you from the commencement of your Customer Contract until the date of termination) multiplied by (the number of remaining months (or any part thereof) of the Minimum Term) |
Ecommerce Regulations | the Electronic Commerce (EC Directive) Regulations 2002 |
Privacy and Electronic Communications Regulations | the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) |
End User | a person who receives a Message you send using your Account, and a person who sends you a Message via your Account |
Equipment | a handset, modem, router or other hardware |
Extract | deduct an amount by Direct Debit |
Facilities | systems, software, computers, equipment and network infrastructure of all kinds used to provide or in connection with the provision of a Service |
Group Company | any subsidiary and parent undertaking of either party and any subsidiary undertaking of any such parent undertaking (as such terms are defined in the Companies Act 2006) |
Insolvency Event | includes an event where a receiver or receiver and manager is appointed over a party’s property or assets, an administrator, liquidator or provisional liquidator is appointed to the party, the party enters into any arrangement with its creditors, the party becomes unable to pay its debts when they are due, the party is wound up or becomes bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction |
Integrations | is defined in Part D |
Intellectual Property Rights | Includes all right, title and interest wherever subsisting (now or in the future) throughout the world, and whether registered or not, in and to:
and includes the right to apply for registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other rights generally falling within this term |
Intervening Event | an event beyond our reasonable control which interferes with and prevents us from providing the Services to you. Such events include any act or omission of our Providers, any disruption to our or our Providers’ networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, industrial action and acts of God including but not limited to lightning strikes, earthquakes, floods or other natural disaster |
Law | laws, Acts of Parliament, regulations, mandatory standards and industry codes and including the requirements or directions of any Regulator |
Message | an SMS, MMS or OTT Message |
Message Credits | a credit equal to your Monthly Access Fee that may be applied to your Messaging Fees for that month, subject to clause 6 |
Messaging Fee | a Charge per Message sent or received on your Account |
Messaging Service | a Telecommunications Service for sending and/or receiving and/or processing Messages |
Minimum Term | the period specified in your Plan or Application Form, or if your Plan or Application Form does not so specify, means 12 months |
MMS | a message including text and/or multimedia content carried by the multimedia messaging service developed by the Open Mobile Alliance, whether it originates or terminates on a mobile phone or another kind of computer |
MMS Service | a Messaging Service for MMS |
Monthly Access Fee | the charge identified as such in a Plan or Application Form |
Network | see clause 4(c) |
Numbering Rules | the rules and regulations issued by the Regulator in the relevant jurisdiction in which we provide the Services for issuing, transferring and changing telephone numbers |
Operational Directions | Any direction we give you in relation to the Services or your Account in accordance with clause 10 |
OTT Message | is an instant message that uses the internet for transmission |
Our Facilities | Facilities we own and/or operate |
Personal Data | has the meaning set out in section 1(1) of the Data Protection Act 1998 |
Periodic Entitlements | see clause 6 |
Plan | a particular set of features, entitlements, term of contract, Charges and special conditions in connection with a Service. Many of our Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions. The terms of your Plan form part of your Customer Contract |
Price List | see clause 27(b) |
Processing | has the meaning given to it in the Data Protection Legislation |
Product Terms | terms and conditions which are available on our website which apply to additional MessageMedia products. |
Provider | a third party that, under a contract with us, provides (a) access to Facilities they manage or maintain or (b) content or (c) a service that we resupply to you |
Provider Facilities | Facilities that are managed or maintained by a Provider |
Provider Requirements | see clause 12 |
Regulator | includes the UK Information Commissioner, Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Telecommunications Industry Ombudsman and any other relevant government or statutory body or authority |
Reseller | a Customer whose Application Form states that they are appointed as a reseller of our Services |
Restricted Content | Content that:
|
SDK | a software development kit |
Services | a service (including any Equipment) which we provide to you, including but not limited to (a) any Carriage Service for voice telephony, data transmission, tone signalling, or a live or recorded information service ; or (b) ancillary goods or service provided in connection with (a) above. |
Service Level Agreement | a written service quality assurance titled as such, as updated by us from time to time |
Shared Number | a digital mobile service number that we associate with multiple Accounts |
SLA | a Service Level Agreement |
SMS | a text message carried by the short message service that was originally developed for use on the GSM mobile telephone network, whether it originates or terminates on a mobile phone or another kind of computer |
SMS Service | a Messaging Service for SMS |
Spam | an unsolicited commercial electronic message |
Staff | any person, whether your employee, contractor or otherwise, who uses your Account |
Standard Contractual Clauses | the EU Standard Contractual Clauses between controller to processor and between processor to processor approved by the European Union, as set out in Part E. |
Standard Rate Messages | Messages that are billed by Carriers at standard rates, and in particular are not premium rate Messages, which are billed by Carriers at premium rates |
Supplier | the entity described as such in the Application Form and/or your Plan and/or on the website on which these Customer Terms are published |
Telecommunications Service | a Carriage Service between a point in Australia and one or more other points in Australia or outside of Australia, or any service we supply in connection with that service |
Unrestricted Content | Content that is not Restricted Content |
Use-by Date | see clause 7(b) |
VAT | Value Added Tax |
59 About this Part
This Part applies when we supply you with Design Services.
60 Quote and Specifications
Prior to providing any Design Services we will agree:
(a) the specifications and requirements for the Design Services; and
(b) total estimated cost of the Design Services.
61 Deposit for Services
We may require you to pay a deposit for any Design Services that you have asked us to provide to you.
62 Approval of Design Services
Where we undertake Design Services or any form of professional services, you must not unreasonably withhold signoff and approval of the completed project, where we are able to reasonably demonstrate that we have met the agreed specifications or requirements.
63 Customer Warranty
You warrant that all Content provided to us in relation to the provision of the Design Services is duly licensed or authorised and not in breach of any law, third party rights or trademarks. You further accept without limitation that any fees, royalties or other payments for use of Content are to be paid by you.
64 Payment
Upon completion of the Design Services you agree to pay the total cost of the Design Services within 14 days of receipt of an invoice for such services.
65 About this Part
This Part C applies if your Application Form states that you are a Reseller.
66 Reseller Rights
We grant you the non-exclusive right to market and resell the Services to your customers.
67 Reseller Independence
Your business is an independent business. Accordingly:
(a) you are not, and must not (in any circumstances) hold yourself out as our agent, associate or affiliate;
(b) you must not represent that we are in any way the owner or operator of the business;
(c) your acts or omissions do not bind us;
(d) this Customer Contract does not constitute either you or us as a joint venturer, partner, agent, employee or fiduciary of the other.
68 Provision of Services to Others
You:
(a) will enter in to separate legal agreements with your customers to whom you resell the Services which contain terms and conditions substantially similar to these Customer Terms (but you must not appoint any sub-seller or partner);
(b) expressly acknowledge that we will not, at any time, be responsible for or liable for the Content or the destination of any Content conveyed by or to you;
(c) agree that, if you become aware that any End User does not wish to continue to receive Messages, you will take all necessary steps, including notifying us, to ensure that the End User does not continue to receive Messages;
(d) must ensure that your customers do not do anything that, if done by you, would breach your Customer Contract;
(e) must comply with any applicable developer terms, including security terms, in relation to your use of developer APIs; and
(f) indemnify us against any claim against us by your customer or a Regulator arising out of or in connection with your business or the Services you resell.
69 90 Day Notice of Termination
If you are a Reseller, then the reference to “30 days” in clause 46(a) is deleted and replaced with “90 days”. For the avoidance of doubt this means that you may terminate your Customer Contract at any time (except during the period of the Minimum Term) on 90 days’ written
This Part C applies to all Customers and Resellers who use our API for integrations, including integrations with the Customer’s or Reseller’s systems or other applications and/or to build integrations (“Integrations“).
(a) In relation to your use of our API in Integrations, without limiting any other obligation you have under your Customer Contract and/or Reseller arrangement, you agree as follows:
(i) you will implement and maintain in place appropriate administrative, physical, and technical data security safeguards and controls, in accordance with best industry standards, that are designed to prevent unauthorized access, use, processing, storage, destruction, loss, alteration, disclosure of Personal Information and other sensitive data and confidential information;
(ii) you will comply with all applicable Laws (including the Privacy Act and all other applicable data security and privacy laws and regulations);
(iii) you will keep all credentials that we issue to you strictly confidential and not disclose them to any third party;
(iv) if you become aware of any data breach or other security deficiency or we notify you of any such breach or deficiency, you will:
(A) follow our reasonable instructions to immediately correct any security deficiency, and will immediately disconnect any intrusions or intruders; and
(B) not release any public statements (including, without limitation, any press release, blog post or social media.) without our prior written approval to the proposed statement;
(b) We do not accept responsibility or liability for any loss or damage arising from your failure to maintain the security of your Integration or login, password or other security or identification credentials.
(c) You agree that we may monitor use of the our API in your Integrations to ensure quality, improve our products and services, identify security issues and verify your compliance with this Part C, which may include us accessing and using your Integration and associated applications for any of the foregoing purposes. You agree not to interfere with our monitoring activities under this clause 65(c) and you agree that we may use any technical means to overcome such interference. We may suspend your access to our API without notice if we reasonably believe that you are in violation of any provision of this Part C.
(d) You agree not to use our API in any Integrations that run applications on our servers.
(e) Your networks, operating system and software of your web servers, routers, databases, and computer systems (collectively, “Developer System”) must be properly configured to Internet industry standards so as to securely operate the application(s) associated with use of our API and protect against unauthorised access to, disclosure or use of any information you receive from us. If you do not completely control any aspect of the Developer System, you will use all practicable measures to procure compliance with this Part C by any relevant third party. You must correct any security deficiency as soon as practicable and disconnect immediately any known or suspected intrusions or intruder.
When using our API, you will, and you will ensure that your employees, agents and service providers will:
(i) only use our API (including SDKs) to develop and distribute applications or content for your use with the Services;
(ii) restrict disclosure of the API credentials, or any part thereof, to your agents, employees, or services providers, who must require access to use, maintain, implement, correct or update your application in accordance with this Part C, and who are subject to confidentiality obligations the same as or greater than those contained in clause 21;
(iii) not distribute, sell, lease, rent, lend, transfer, assign or sublicense any rights granted in relation to our API to any third party;
(iv) not use or access our API or a Service in order to monitor the availability, performance, or functionality of our API or any Service or for any similar benchmarking purposes;
(v) not remove or destroy any copyright notices, proprietary markings or confidentiality notices placed upon, contained within or associated with our API;
(vi) not engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner our servers, security, networks, data, applications or our other properties or services or those of any third party;
(vii) not circumvent technological measures intended to prevent direct database access, or manufacture tools or products to that effect;
(viii) not modify, translate, reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of our API or any Service, except to the extent that this restriction is expressly prohibited by applicable law;
(ix) not bypass our API restrictions for any reason, including automating administrative functions;
(x) not, except as authorised by us in writing, substantially replicate our API, a Service or our other products or services or those of any of our Related Bodies Corporate;
(xi) not develop applications that excessively burden our system, distribute spyware, adware or other commonly objectionable programs;
(xii) not develop an application that has the purpose of migrating our customers off our Services;
(xiii) not access or use our API to develop or distribute your application in any way in furtherance of criminal, fraudulent, or other unlawful activity, or otherwise violate the our Acceptable Use Policy;
(xiv) not request more than the minimum amount of data from our API needed by your application to provide the intended functionality of such application, or any data outside any permissions granted by a relevant third party merchant;
(xv) not falsify or alter any unique identifier in, or assigned to your application, or otherwise obscure or alter the source of queries coming from such application; and
(xvi) not include code in any of your applications which performs any operations not related to the services provided by the application, whether or not you have the consent of any relevant merchant or end user to do so. For the avoidance of doubt, this prohibited activity includes, without limitation, embedding or incorporating code into any application which utilises the resources of another computer for the purposes of cryptocurrency mining.
This Part E forms part of your Customer Contract.
If you are located in the European Economic Area or are otherwise subject to the GDPR, the standard contractual clauses approved by European Commission Decision C2021/3972 dated 4 June 2021 (the “Standard Contractual Clauses”) will apply to any transfer of personal data under your Customer Contract, either directly or via onward transfer, to any country outside of the European Economic Area that does not have an adequacy decision under article 45 of the GDPR. For transfers that are subject to the Standard Contractual Clauses, the Standard Contractual Clauses will be deemed entered into, incorporated into your Customer Contract by reference, and completed as set out below.
Three modules of the Standard Contractual Clauses may apply:
Full details of these transfers are set out in the Appendix to the Standard Contractual Clauses.
SECTION I
Clause 1
Purpose and scope
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
Clause 2
Effect and invariability of the Clauses
Clause 3
Third-party beneficiaries
Clause 4
Interpretation
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Not used
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
MODULE ONE: Transfer controller to controller
8.1 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose:
8.2 Transparency
8.3 Accuracy and data minimisation
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation[1] of the data and all back-ups at the end of the retention period.
8.5 Security of processing
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data to a third party located outside the European Union[1] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
MODULE TWO: Transfer controller to processor
8.1 Instructions
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union[1] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
MODULE THREE: Transfer processor to processor
8.1 Instructions
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 Duration of processing and erasure or return of data
8.6 Security of processing
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union[1] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
Clause 9
Use of sub-processors
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Clause 10
Data subject rights
MODULE ONE: Transfer controller to controller
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Clause 11
Redress
Clause 12
Liability
MODULE ONE: Transfer controller to controller
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Clause 13
Supervision
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
[For Module Three: The data exporter shall forward the notification to the controller.]
15.2 Review of legality and data minimisation
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
The Parties agree to submit themselves to the jurisdiction of such courts
APPENDIX
ANNEX I
A. LIST OF PARTIES
Data exporter: Customer as shown on the Application Form
Name: Customer’s name as shown on the Application Form
Address: Customer’s address as shown on the Application Form
Contact person’s name, position and contact details: Customer’s contact details as shown on the Application Form
Activities relevant to the data transferred under these Clauses: Using Supplier’s services to send SMS or other messages to data subjects
Signature and date: By entering into the Customer Contract, the data exporter is deemed to have signed this Annex I on the date it entered into the Customer Contract
Role (controller/processor):
Module One and Two: Controller
Module Three: Processor
Data importer: Supplier entity name as shown on the Application Form
Name: Supplier entity name as shown on the Application Form
Address: Supplier address as shown on the Application Form
Contact person’s name, position and contact details: Supplier contact name as shown on the Application Form
Activities relevant to the data transferred under these Clauses: Sending SMS or other messages to data subjects on instructions of Customer
Signature and date: By entering into the Customer Contract, the data importer is deemed to have signed this Annex I on the date it entered into the Customer Contract
Role (controller/processor):
Module One: Controller
Modules Two and Three: Processor
B. DESCRIPTION OF TRANSFER
MODULE ONE: Transfer controller to controller
Categories of data subjects whose personal data is transferred
The data subjects are employees or representatives of the data exporter.
Categories of personal data transferred
The personal data transferred will generally include name, job title and business contact details (such as email addresses and phone numbers).
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The collection and transfer of information will occur whenever the data importer interacts with the data exporter, for example, to provide customer support or billing.
Nature of the processing
The data importer collects, uses and stores the personal data in its computer systems, and transmits the personal data over communication networks, as necessary to provide services to the data exporter and communicate with the data exporter in connection with the services.
Purpose(s) of the data transfer and further processing
The purpose of the processing is to enable the data exporter to sign up to the data importer’s services and communicate with the data importer in connection with the services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Personal data will be retained for as long as the data exporter remains a customer of the data importer and for a period afterwards in accordance with the data importer’s data retention policy.
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Categories of data subjects whose personal data is transferred
The data subjects are individuals to whom the data exporter wishes to send SMS or other messages using the data importer’s services. Those individuals may be customers of the data exporter or of another entity to whom the data exporter is providing services.
Categories of personal data transferred
The personal data transferred will generally include: (a) the data subject’s mobile telephone number or other contact details necessary to allow a message to be sent to the data subject; and (b) any personal data of the data subject contained in the message content. The types of personal data which may be included in message content is at the data exporter’s discretion.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The collection and transfer of information will occur whenever the data exporter sends a message to a data subject or uploads contact information of a data subject.
Nature of the processing
The data importer collects, uses and stores the personal data in its computer systems, and transmits the personal data over communication networks, as necessary to send messages to the data subject as requested by the data exporter.
Purpose(s) of the data transfer and further processing
The purpose of the processing shall be the provision of the services to the data exporter under the Customer Contract.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Personal data will be retained for as long as the data exporter remains a customer of the data importer and for a period afterwards in accordance with the data importer’s data retention policy.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The data importer uses sub-processors to assist it in providing services to the data exporter under the Customer Contract. A list of sub-processors used by the data importer is available at https://messagemedia.com/uk/legal/sub-processors/
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The competent supervisory authority will be as determined under clause 13, depending on whether the data exporter is established in an EU Member State, is not established in an EU Member State but has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, or is not established in an EU Member State and is not required to appoint a representative pursuant to Article 27(1) of Regulation (EU) 2016/679.
ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The data importer’s security measures include, but are not limited to:
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
This Part F forms part of your Customer Contract.
If you are located in the United Kingdom or are otherwise subject to the UK GDPR, the the international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018 (UK) (the “UK International Data Transfer Addendum”) will apply to any transfer of personal data under your Customer Contract, either directly or via onward transfer, to any country outside of the United Kingdom that does not have an adequacy decision under article 45 of the UK GDPR. For transfers that are subject to the UK International Data Transfer Addendum, the UK International Data Transfer Addendum will be deemed entered into, incorporated into your Customer Contract by reference and completed as follows: