SMS Terms & Conditions

This sets out the terms and conditions on which ICUK Computing Services Limited (registered in England with number 4319375) (“ICUK”) will provide SMS services jointly to the Customer with whom we make this agreement. By using the SMS Service the Customer agrees to the following terms and conditions.

1 INTERPRETATION

1.1
In this Agreement, unless the context otherwise requires:

"Intellectual Property" means any patent, copyright, registered design, trade mark or other industrial or intellectual property right subsisting in the Territory in respect of the Company's business and applications for any of the foregoing;

"Person" means an individual or a body corporate or unincorporate or a partnership and "Persons" shall be construed accordingly;

"Restricted Information" means any information which is disclosed to one party to this Agreement by the other pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such);

"Services" means those manual and automatic SMS delivery services as described on the date hereof in the Company's website www.redtelecom.co.uk together with any increased or improved services of such a nature that may be provided by the Company from time to time.

1.2        
Any reference in this Agreement to "writing" or cognate expressions includes a reference to e-mail, facsimile transmission or comparable means of communication.

1.3
Except where the context otherwise requires, words denoting the singular shall include the plural and vice versa and words denoting any one gender include all genders.

1.4
References to clauses and sub-clauses are, unless otherwise stated, references to clauses and sub-clauses of this Agreement.

1.5
The headings in this Agreement are for convenience only and shall not affect its interpretation.

2 AUTHORISATION AND AUTHENTICATION

2.1
The Company will issue a username and password to the Customer via e-mail. This login information will serve as identification of the Customer to the Company when accessing the Company's SMS delivery services, either via its web site or through its programmatic interfaces. The Company will perform no further authentication of the Customer's identity.

2.2
The Customer agrees that all web site activities and programmatic actions which can be traced to its username and password are deemed as having been performed by the Customer itself and are legally binding on it.

2.3
The Customer is responsible for careful use and storage of the username and password. The Customer acknowledges that the Company recommends to change the password on a regular basis. If misuse or theft of the login information is suspected, the Customer agrees to immediately notify the Company in order to suspend the Company's account or take other appropriate measures. The Company shall not be liable for losses or other consequences arising out of such misuse.

3 RISKS

3.1
The Customer acknowledges that, by definition, access to the Internet, the GSM network and other communication media is associated with risks concerning authentication, data security, privacy, availability of services, reliability of transmission etc. The Customer agrees to accept and bear full responsibility arising from such risks and the consequences of the Customer's usage of the Company services and shall waive any claim that may arise against the Company in connection therewith whensoever and howsoever arising.

4 LIMITATION OF LIABILITY

4.1            
The Company's Services and all information, products, and other content (including third party information, products, and content) are provided "as is" and are subject to change at any time. The Company disclaims all representations and warranties (express, implied and statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, and non-infringement of proprietary rights).

4.2            
The Company shall not be liable to any Customer for any damages whatsoever, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, unauthorised use, performance or non-performance of the Company's Services, even if the Company has been advised previously of the possibility of such damages and whether such damages arise in contract, negligence, tort, under statute, in equity, at law or otherwise.

5 SUPPLY OF SERVICES

5.1            
The Company will take all reasonable steps to provide SMS delivery services on the website seven days a week, twenty-four hours a day and as far as they are able perform system and incident monitoring during this time. In order to use the Services, the Customer must obtain access to the Internet, either directly or through devices that access Internet content, and pay any service fees associated with such access. In addition, the Customer must provide all hardware and software necessary to make such connection to the Company's Services and the Internet. It is the Customer's responsibility to ensure conformance of its software with the transmission protocols prescribed by the Company for the access to its SMS services.

5.2            
While the Company will take reasonable steps to provide backward compatibility while extending its services and offerings, the Company may change its transmission protocols at any time with an advance notice of not less than eight business days to the Customer. If such changes do not affect the Customer's current interface implementations, the Company reserves the right to enhance, develop, and modify services and contents at any time without prior notice.

5.3            
The Customer acknowledges that the Company delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery resp. transmission of SMS messages within the technical constraints imposed by such providers.

5.4      
SMS messages submitted and accepted via the Company's Services will be transferred to the addressed mobile recipients, provided that:-

5.4.1   
the recipient's mobile network provider has a roaming agreement with one of the Company's partner providers; and

5.4.2   
the recipient's mobile telephone is switched on and located in an area covered by his subscribed mobile network provider.

5.5      
Whilst the Company will take reasonable steps to deliver the message to the recipients as fast as possible, it cannot commit to or guarantee a specific maximum delivery time, as such times depend on various network and system-related factors among the various entities involved in transporting the message across the GSM network.

The Customer acknowledges that the Company has little to no influence on the service quality once the message has been submitted to its partner mobile network providers and thus has left its domain of control.

5.6      
The Customer acknowledges that, depending on the recipient's mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully, particularly if the recipient's provider has temporarily or permanently disabled, or does not support SMS delivery at all.

5.7      
Through the Services, SMS messages are assigned a default life time by the specific SMSC, SMS messages which could not be delivered successfully to the recipient's mobile phone within the life time will be discarded without notice in the recipient mobile network provider's messaging centre.

5.8      
The Customer acknowledges that the Company may be obliged by law to store all message content and activity logs for a particular length of time and that the Company could be required by law to disclose details about a Customer's activity and SMS transmissions to government and law enforcement officials and other such agencies. In that regard the Customer hereby consents to the Company taking such action. Further, the Customer acknowledges that SMS message content is transmitted unencrypted and that eavesdropping of mobile phone communications, including SMS delivery, by third parties is possible.

5.9      
Each SMS message transmitted by or on behalf or at the direction of the Customer must contain an existing and authorised mobile phone number belonging to the Customer or authorised for use as such by the owner of the phone number, or other sufficient identification of the originator. The Company reserves the right not to deliver SMS messages without sufficient originator information.

5.10    
The Customer agrees that the Company may, in its sole discretion, terminate the Customer's use of the Service, and remove and discard any content within the service, for any reason at the Company's sole discretion, including, without limitation, for lack of use or if the Company is of the opinion that the Customer has breached or acted inconsistently with the letter or spirit of this Agreement. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. Further, the Customer agrees that the Company shall not be liable to the Customer or any third-party for discontinuing to provide its services.

6 CUSTOMER'S LIABILITY

6.1      
If the Customer causes damages or disruptions of the website or system applications of the Company or of any provisions to the Company, he shall be liable for all direct and incidental consequences and associated costs.

6.2      
The Customer accepts full responsibility for the content of SMS messages transmitted by himself or any other Person at his request or on his behalf.

6.3      
The Customer agrees to abide to all laws and regulations applicable to the content and intent of SMS messages transmitted by him. The Customer shall be liable for all consequences and costs arising out of any breaches against such law or regulations perpetrated by him or under his direction or on his behalf.

6.4      
The Customer must ensure that his SMS delivery does not cause disturbance or harassment of a recipient or other Person. The Customer agrees to refrain from sending SMS messages containing offensive, violent, pornographic, or discriminatory, or otherwise illegal content. The Customer is not permitted to send SMS messages to recipients who have made clear that they do not wish to receive SMS messages or advertisements via SMS from the Customer.

6.5      
The Customer acknowledges and warrants that the Service shall be used to send only information requested by the potential recipient. Therefore the Customer shall comply with all relevant rules and regulations regarding treatment, use and exploitation of private, personal data and other personal information of the potential recipient. Such compliance shall include without being limited to the right for the recipient to be informed of this treatment and their right to access this information and to modify it or to ‘opt out’ completely of the Customers database along with the manner in which they can request this.

6.6      
In particular, the Customer must not send SMS inviting the recipient to call back a premium rate or expensive number, even if the recipient has given permission, if the Customers service breaks any appropriate regulatory bodies rules, regulations or guidelines. This traffic is not permitted on the ICUK network because of the potential complaints that may be made by recipients that could damage ICUK’s or any Mobile Networks name and goodwill.

6.7      
The Customer hereby agrees to indemnify and hold the Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including in particular, without limitation, reasonable legal fees, made by any Person due to or arising out of the Customer's transmission of SMS message(s) through the Services, the Customer's use of the Services, the Customer's connection to the Services, the Customer's breach of this Agreement, or the Customer's violation of any rights of any other Person.

7 PRICING AND PAYMENT

7.1      
The Company will debit transmitted SMS messages from the Customer's online SMS account according to its transmission logs. In the case of dispute between the Company and the Customer as to the correctness and validity of these transmission logs, the Company's decision thereon shall be final and binding on the parties.

7.2      
The Company's SMS pricing scheme is based on prepaid message volume according to the current SMS message pricelist. All prices are subject to change with an advance notice of five business days. The reference currency for all transaction between the Company and the Customer is Sterling.

7.3      
The Company shall charge the per-message fee to the Customer as soon as a message has been forwarded successfully to one of the Company's partner mobile networks. As it is agreed between the parties that as neither the Company nor its partners are able to guarantee successful delivery of the SMS messages to recipients (eg, due to the Customer not being in a roaming area, or due to errors and outages on the part of mobile network providers or for any reason), neither the Company nor its partners are required to refund the cost of undeliverable SMS messages to the Customer.

7.4      
The Company will credit the Customer's SMS account with the purchased number of SMS messages upon receipt of payment.

7.5      
Each message sent will be debited from the Customer's SMS account. The Customer acknowledges that the Company reserves the right to suspend the Service if the Customer's account balance reaches zero. The Customer can obtain the real-time status, as well as real-time details of his account, from the Company at any time via its control panel.

7.6      
The Customer's SMS account balance is non-refundable and does not bear interest. Pre-purchased SMS messages must be used within 12 calendar months from payment. The Company reserves the right to cancel any existing account balance without prior notice to the Customer.

7.7 Interconnect Charges
There are currently no interconnect charges to some networks included in ICUK 's SMS prices

7.7.1   
SMS prices may immediately increase when network operators and SMSC's charge an additional cost to recover interconnect costs. In this event a reduction will be made in the number of unused SMS messages in the customers pre-paid account to reflect the interconnect cost as if the messages had been purchased at a price including interconnect charges. Such deduction will be determined by ICUK, which will be reflected in any new SMS prices. ICUK shall endeavour to give the Customer the same amount of notice that the Network operator and SMSC's give ICUK.

8 INTELLECTUAL PROPERTY RIGHTS

8.1      
It is agreed and acknowledged by the parties that all communication media and systems associated with the web site www.redtelecom.co.uk, the control panel and the underlying services remain the property of either the Company, its suppliers or partners as appropriate. By using the services, the Customer shall not obtain any rights in the infrastructure, content, Intellectual Property, or software associated with the services.

9 DURATION AND TERMINATION

9.1      
This Agreement shall come into force on the date hereof and continue thereafter unless and until terminated by either party giving to the other not less than 28 days' prior notice in writing.

9.2
Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if:-

9.2.1   
that other party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within fourteen days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

9.2.2   
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party;

9.2.3   
that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;

9.2.4   
that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);

9.2.5   
anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or

9.2.6   
that other party ceases, or threatens to cease, to carry on business.

9.3            
For the purpose of clause 9.2, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

9.4            
The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

10 NATURE OF AGREEMENT

10.1          
This Agreement is personal to the Customer who may not assign the rights and obligations hereunder.

10.2          
The Company may assign this Agreement and the rights and obligation hereunder.

11 REPRESENTATIONS

11.1          
Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

12 WAIVER, FORBEARANCE AND VARIATION

12.1          
The rights of either party shall not be prejudiced or restricted by any indulgence or forbearance extended to the other party and no waiver by any party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

12.2          
If there be any discrepancy or inconsistency between these terms and conditions and the provision of any Purchase Order received from a customer, then these terms and conditions will prevail.

12.3          
This Agreement shall not be varied unless such variation shall be expressly agreed in writing by each party.

13 SEVERABILITY

13.1          
If any of the provisions of this Agreement is found by any Court to be void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.

14 PREVIOUS AGREEMENTS

14.1          
This Agreement supersedes any previous agreement between the parties in relation to the matters dealt with herein and represents the entire understanding between the parties in relation thereto.

15 PROPER LAW

15.1    
This Agreement shall be governed by and construed in all respects in accordance with the Laws of England, and each party hereby submits to the non-exclusive jurisdiction of the English Courts.

16 NOTICES AND SERVICE

16.1    
Any notice or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent (by first class (air mail where appropriate)) pre-paid post, e-mail, facsimile transmission or comparable means of communication) to the other party at the address referred to in clause 16.4.

16.2    
Any notice or other information given by post pursuant to clause 16.1 which is not returned to the sender as undelivered shall be deemed to have been given on the second business day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.

16.3    
Any notice or other information sent by e-mail, facsimile transmission or comparable means of communications shall be deemed to have been duly sent on the date of transmission.

16.4    
Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the party to be served at its principal place of business, or to such other address as may from time to time be notified in writing by the party concerned to the other party.