In this document the following words shall have the following meanings:
1.1 Company: Text- Connect Limited;
1.2 Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential, including but not limited to any information related to the Services, the Output Material and the Quotation;
1.3 Contract: any contract between the Company and the Customer for the Supply of Services, incorporating these Conditions;
1.4 Conditions: these Conditions of Supply;
1.5 Customer: the organisation or person who purchases Services from the Company;
1.6 Input Material: any data or other information provided to the Company by the Customer relating to the Services;
1.7 Intellectual Property Rights: all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property whatsoever and wherever in the world enforceable;
1.8 Output Material: any data or other information provided by the Company to the Customer relating to the Services;
1.9 Personal Data: Any data which relates to a living individual who may be identified from such data.
1.10 Quotation: a statement of work, services specification or other similar document describing the services to be provided by the Company;
1.11 Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including but not limited to the Text-Connect services.
1.12 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.13 Words in the singular include the plural and in the plural include the singular.
1.14 A reference to one gender includes a reference to the other gender.
1.15 Condition headings do not affect the interpretation of these Conditions.
2.1 These Conditions shall apply to all contracts for the supply of Services by the Company to the Customer.
2.2 Following the receipt of the Customer’s order but before the commencement of supply of the Services, the Company will submit to the Customer a Quotation which shall specify the services to be performed and the fees which shall be payable for those services and a Contract based upon that Quotation and subject to these Conditions will arise between the Company and the Customer, unless the Customer notifies the Company within 48 hours that the Customer does not agree with the contents of the Quotation. All Quotations shall be subject to these Conditions.
2.3 Without limiting the generality of Condition 8.5, where any Services are to be performed by the Company in accordance with any Input Material and/or any specification submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material and/or any specification so submitted.
2.4 The Company shall use all reasonable endeavours to deliver and complete the performance of the Services within any estimated time frames but time shall not be of the essence in the performance of the Services.
3 FEES AND PAYMENT.
3.1 Unless otherwise agreed in writing, full payment to the Company for the Services shall be due upon receipt of order and any and all applicable fees shall be similarly payable at such time together with value added tax at prevailing rates. Where the Company agrees to accept payment or part-payment at any time after receipt of order, payment shall be due within 30 days of the date of the relevant invoice, time for payment shall be of the essence and:
i. Failure by the Customer to make any payment by its due date shall entitle the Company to: a) at its option, to charge interest at the rate of four percent (4%) per annum above National Westminster Bank’s base lending rate from time to time calculated on a daily basis, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer; c) suspend any warranty for the Services, whether or not they have been paid for; and d) set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
ii. No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company;
iii. All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision; and iv. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
3.2 The price for the Services will be confirmed in the Quotation which is valid for a period of 30 days.
3.3 The Company reserves the right to change the prices payable for the Services in future quotations.
3.4 Unpaid fees may result in the termination or suspension of the Services to the Customer.
4 CUSTOMER’S OBLIGATIONS.
4.1 To enable the Company to perform its obligations under this Contract the Customer shall:
4.1.1 promptly and fully co-operate with the Company;
4.1.2 provide the Company with any information reasonably required by the Company (including but not limited to any Input Material so required);
4.1.3 obtain all necessary permissions and consents which may be required before the commencement of performance of the Services and
4.1.4 comply with such other requirements as may be set out in the Quotation or otherwise agreed between the parties.
4.2 The Customer shall be liable to fully and promptly compensate the Company for any costs, charges and expenses incurred by the Company as a result of the Customer’s failure to comply with Condition 4.1.
4.3 Without prejudice to any other right or remedy to which the Company may be entitled, in the event that the Customer unlawfully terminates or cancels the services agreed to in the Quotation, the Customer shall be promptly required to pay to the Company as agreed damages and not as a penalty the full amount of any costs, charges or expenses which the Company has incurred or agreed to incur in relation to those services and in respect of cancellations on less than five working days’ written notice the full amount of the services contracted for as set out in the Quotation, and in either event the Customer acknowledges and agrees this is a genuine pre-estimate of the Company’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligation under Condition 4.1 shall be deemed to amount to a cancellation of the Services pursuant to this Condition 4.3 and without limiting any other right or remedy of the Company as aforesaid, shall give rise to the payment of the damages set out in this Condition.
4.4 In the event that the Customer or any third party, not being a sub-contractor of the Company, shall omit or commit anything which prevents or delays the Company from undertaking or complying with any of its obligations under this Contract, then the Company shall notify the Customer as soon as practicable and:
4.4.1 the Company shall have no liability with respect to any failure or delay in the performance of any obligations hereunder ;
4.4.2 any applicable timetable for the performance of any of the Company’s obligations will be modified appropriately;
4.4.3 the Company shall notify the Customer at the same time if it intends to make any claim for additional costs.
5. PROVISION OF Text-Connect.
5.1 Text-Connect is a UK based service. The Company will take all reasonable steps to ensure Text-Connect is available to the Customer at all times. The Company cannot guarantee a continuous fault free service. Please note that:
5.1.2 The quality and availability of the Text-Connect service may sometimes be affected by factors outside the Company’s control. For example, features or functionality of the Customers Computers and Networks, the Customers Internet connection, the number of people trying to use Text-Connect at the same time, and faults and service unavailability in third party services and networks (including but not limited to telecommunication networks) which are utilized by Text-Connect or to which Text-Connect is connected.
5.1.3 The Company may from time to time temporarily suspend part or all of the Text-Connect service in order to carry out maintenance, repairs and to make general improvements to the Text-Connect Services.
5.2 The Customers use of the Text-Connect service.
5.2.1 The Customer agrees and confirms that they and anyone acting with their consent will not make any unlawful use of the Text-Connect Service, and not use the Service in any manner which adversely affects, or causes inconvenience, annoyance, anxiety, upset or infringes the rights (including but not limited to the Intellectual Property Rights) of any third party and shall not, without limitation, use the Service for the sending of spam text messages.
5.2.2 The Customer agrees and confirms that they will not use the Text-Connect service to communicate any material which is unlawful, pornographic, defamatory, malicious, abusive, profane, blasphemous or threatening or which in any manner may cause offence.
5.2.3 The Customer agrees and confirms that they will not use the Text-Connect services either to transmit any material containing hostile computer programs or viruses or to transmit any information which would or could incite or encourage the commission of a criminal offence.
5.2.4 The Customer agrees and confirms that they will not use the Text-Connect services to transmit any material in breach of the Data Protection Act 1998 (or any replacing statute) dealing with data protection or similar legislation in any other country or of any material which is confidential or is a trade secret.
5.2.5 The Customer confirms that users of the Service will be at least 18 years of age.
5.2.6 The Customer will not disclose either their Text-Connect 'user name' or 'password' to any unauthorised 3rd parties.
5.2.7 The Customer should change their Text-Connect password after logging in for the first time and again at frequent regular intervals.
5.2.8 Multiple Users. Where The Customer has authorised other users to access their Text-Connect account, the Customer remains responsible :-
184.108.40.206 for ensuring that Text-Connect is used in accordance with these Conditions and
220.127.116.11 for all fees incurred to the Customers Text-Connect Account by those Users.
5.3 Security Considerations.
5.3.1 The Customer acknowledges that SMS text message content is transmitted unencrypted and that interception of text messages by third parties is possible.
5.3.2 The Customer acknowledges that Email message content is transmitted unencrypted and that those Text-Connect services dependent on email communication, including text message forwarding and 'email2text' functions, may be intercepted by third parties.
5.4 Text-Connect TEXT-NUMBERS All Text-Numbers (MSISDNs, Reply to Numbers) associated with any service provided by Text-Connect remain the property of Text-Connect at all times. The Text-Connect allows the Customer to 'rent' Text-Numbers on a yearly basis subject to the required fee being paid.
5.5 Text-Connect MESSAGE CREDITS Text-Connect message credits are not refundable and are not transferable.
6 ALTERATIONS TO THE QUOTATION.
6.1 The Company may elect to agree to a request from the Customer to revise the scope of the Services at any time after a Contract has been entered into pursuant to Condition 2.2 above, but hereby expressly reserves the right to refuse to do so. . Any alterations in the scope of services to be provided under this Contract which are agreed by the Company shall be set out in a revised Quotation, which shall reflect the changed services and fees and any other terms so agreed.
6.2 If the Customer wishes to revise the scope of the Services at any time after a Contract has been entered into pursuant to Condition 2.2 above, the Customer must request alterations to the Quotation by notice in writing to the Company. On receipt of the request for alterations the Company shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing whether or not the Company wishes to consent to the requested alterations and if the Company does wish to so consent, the Company shall advise the Customer by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
6.3 Where the Company gives written notice to the Customer agreeing to undertake any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Company by notice in writing whether or not it wishes the alterations to proceed.
6.4 Where the Company gives written notice to the Customer agreeing to undertake alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Quotation shall be amended to reflect such alterations and thereafter the Company and the Customer shall perform their respective obligations under this Contract upon the basis of such amended terms.
7.1 The Company warrants that the services performed under this Contract shall be performed using reasonable skill and care.
7.2 Without prejudice to Condition 6.1, or to Condition 8.3 (c) and except as otherwise expressly stated in this Contract, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by the Company.
8. LIMITATION OF LIABILITY AND INDEMNITY.
8.1 Subject always to any additional limitation of the Company’s liability elsewhere in these Conditions, this Condition 8 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of: any breach of the Contract; any use made by the Customer of the Services, the Output Material, the Quotation, or any part of them or it; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions limits or excludes the liability of the Company: (a) for death or personal injury resulting from negligence; or (b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company; or (c) for any liability incurred by the Customer as a result of any breach by the Company of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
8.4 Subject to Condition 8.2 and Condition 8.3 (a) the Company shall not be liable for: loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. (b) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
8.5 The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Customer (including, without limitation, from any unsuitable or inappropriate use of the Services) or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
9. DATA PROTECTION, CONFIDENTIALITY & PERSONAL DATA .
9.1) We will at all times keep confidential all information acquired as a consequence of the Agreement in respect of the Customer, except for information already in the public domain or information which We are required to disclose by law, requested by any Regulator or reasonably required by Our professional advisors for the performance of their professional services.
9.2) The Customer will at all times keep confidential all information acquired as a consequence of the Agreement in respect of Us, the Service or any Network Operator, except for information already in the public domain or information which the Customer are required to disclose by law, requested by any Regulator or reasonably required by the Customers professional advisors for the performance of their professional services.
9.3) Each of us, the Customer and the Company will comply with all applicable requirements of the General Data Protection Regulations (the GDPR). This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the GDPR.
9.4) The parties acknowledge that for the purposes of the GDPR, We the company are the Data Processor and you the customer are the Data Controller.
9.5) Without prejudice to the generality of clause 9.4, the Customer will ensure that they have all necessary appropriate consents and notices in place to enable lawful transfer of all End-User Data, including the mobile telephone numbers of the Customers end-user who will be sent messages or voice calls (as applicable) as a consequence of making the Service available to the Customer (End-User Data).
9.6) To the extent that the Company acts as a data processor on behalf of the Customer, the Company shall, in relation to any End User Data processed in connection with the providing the Service:
i) process that End-User Data only for the Purpose and on the Customers instructions unless the Company are required by the laws of any member of the European Union or by the laws of the European Union applicable to Us to otherwise process End-User Data. Where the Company are relying on laws of a member of the European Union or European Union Law (Applicable Law) as the basis for processing End-User Data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit such notice;
ii) ensure that the Company have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of End-User Data and against accidental loss or destruction of, or damage to, End-User Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development;
iii) take all reasonable steps to ensure that all personnel who have access to and/or process End-User Data are legally obliged to keep the End-User Data confidential; and
iv) not transfer any End-User Data outside of the European Economic Area unless such a transfer is on the Customers instruction and solely for the Purpose
v) assist the Customer in responding to any reasonable request from a data subject (as defined in the GDPR) and in ensuring compliance with its obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
vi) notify the Customer without undue delay (and in any event within 24 hours) on becoming aware of a breach involving your End-User Data;
vii) at the Customers written direction, delete or return End-User Data and copies thereof to the Customer on termination of the agreement unless required by law to store the End-User Data; and
viiii) maintain records and information to demonstrate its compliance with this clause 9
9.7) The Customer consents to the Company appointing the below categories of third party processors for the purpose of providing the Services
i) Network Operators for the sole purpose of terminating the communication to the end user handset.
ii) Data Centre Operators for the purpose of storing the End-User Data and hosting the service.
iii) SMS Text messaging platform providers for the purpose of providing the Text-Connect service.
9.8) The Company confirms that we have entered or (as the case may be) will enter with the third-party processor a written agreement incorporating terms which are substantially similar to those set out in this agreement. We shall remain liable for the acts or omissions of any third-party processor, or those employed or appointed by the third party processor, appointed by Us pursuant to clauses 9.7 i) ii) and iii).
9.9) The Customer acknowledges and agrees that any Personal Data contained in any of the Input Material may be processed by and on behalf of the Company in connection with the Services, whether or not the Personal Data relates to the Customer (which, for the purposes of this Condition 9, includes any employee, servant or agent of the Customer) or to another third party data subject. The Customer hereby expressly consents to any processing of the Customer’s Personal Data by the Company and undertakes to procure the consent of any other relevant third party data subject to any processing of their Personal Data, and shall provide such proof of said third party data subject’s consent to such processing as may be requested by the Company.
Either party may terminate this Contract forthwith by notice in writing to the other if:
10.1 the other party commits a material breach of this Contract and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
10.2 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
10.3 the other party ceases to carry on its business or substantially the whole of its business; or
10.4 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
10.5 The Company reserves the right to terminate this Contract forthwith by notice in writing if one or more of the services the Customer ordered was listed in the Quotation at an incorrect price due to a typographical error or an error in the pricing information received by from the Company’s sub-contractors or suppliers.
11 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION.
11.1 All Intellectual Property Rights produced from or arising as a result of the performance of this Contract or from the Services, the Output Material or the Quotation shall, as between the Company and the Customer and so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or by entering into any agreements with third parties. The Company licenses all such rights (without the right to grant sublicenses) to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If the Company terminates the Contract or the Contract terminates, as applicable, this licence shall automatically terminate.
11.2 The Customer and the Company agree that in the course of the Company providing Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party.
12 FORCE MAJEURE.
Neither party shall be liable for any delay or failure to perform any of its obligations (other than payment to the Company for the Services) if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, any act, omission failure or delay of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the affected party shall be entitled to a reasonable extension of any period for undertaking its relevant obligations (other than payment to the Company for the Services) after notifying the other party of the nature and extent of such event(s).
13 INDEPENDENT CONTRACTORS.
The Company and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Company may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Contract without the prior written consent of the Company.
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Contract had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Contract.
Unless otherwise expressly stated in these Conditions, all notices from Customer to the Company must be in writing and sent to the Company’s contact address at 28 Shrewsbury Road, Edgmond, Shropshire, TF10 8HU and all notices from the Company to the Customer will be displayed on the Company’s website from time to time.
18 ENTIRE AGREEMENT.
This Contract contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Contract, this Contract may be varied only by a document signed by both parties.
19 NO THIRD PARTIES.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
20 GOVERNING LAW AND JURISDICTION.
This Contract shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
Rev 2nd May 2018.