Terms and Conditions - Protecting us both.
Our terms and conditions are here to protect us both. Please take the time to read them as they are binding on both parties when you register and use the service.
Version 2, August 2011.
Copyright Communicloud Limited. All Rights Reserved.
Information in this document is subject to change without notice. Companies, names and data used in examples herein are fictional unless otherwise noted.
No part of this document may be reproduced or transmitted in any form by any means, electronic or mechanical, for any purpose, without the express written permission of Communicloud Limited.
The brand and term "Communicloud" is a trademark of Communicloud Limited under Trade Mark 2523918. Other names are the trademarks of their respective owners.
COMMUNICLOUD LIMITED DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE INSTRUCTIONS CONTAINED IN THIS DOCUMENT. IN NO EVENT SHALL COMMUNICLOUD LIMITED BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF COMMUNICLOUD LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY
Communicloud Terms and Conditions of Use
The definitions below and any definitions used elsewhere in this agreement are binding upon the parties.
1.1. The Service. The "Service" consists of a browser interface, data transmission, data access (as available) and, if applicable, data storage. The "Service" includes any Website owned by, provided by or operated by Communicloud Ltd to which you have access.
1.2. You and Yours. "You" and "Yours" means each User or customer accessing the Service by means of a valid account established by You. If You are entering into this agreement on behalf of Your entity, the term "You" in this agreement means Your entity and all of its directors, officers, managers, shareholders, employees, agents, members, or other personnel.
1.3. Unlawful Activities. "Unlawful Activities" includes, but is not limited to, making direct or indirect threats of physical harm, engaging in any conspiracy of any type, violation of any UK law or ordinance, violation of any international treaty, storing, distributing or transmitting any unlawful material, or attempting to compromise the security of any networked account or site.
1.4. Internet Service Provider. "Internet Service Provider" or "ISP" is any entity which allows access to the internet or Worldwide Web.
1.5. "Sender ID" or "Originator ID". Who/What shows as the sender of any message received as a result of Using the service as a broadcasting media.
1.6. The Agreement. The "Agreement" or the "Service Agreement" refers to the within electronic document which sets forth the rights of the parties in their entirety.
1.7. Our or We or Us. "Our" or "We" or "Us" refers to Communicloud Ltd.
1.8. "Systems". "The Systems" consists of computer equipment including servers, telecommunications devices, internet connection devices and digital storage media.
1,9. "Text Message". Short Messaging System utilised by modern
mobile communications devices to send plain text data to other
1.10. "Keyword" A keyword is a word which is chosen upon applying for the service. The keyword is Used for a person or persons to register or "opt in" to the service by text message.
1.11. "Shortcode". Our service consists of a 5 digit shortcode '82055' to enable a person to communicate with Our systems by text message Using a keyword.
1.12. "Reverse Billing". A message delivered to a handset which charges the end User a predetermined amount for receiving the message.
1.13. "Premium Rate". A service that is provided to send 'Reverse Billing' Messages.
1.14. "Out-payments". Payments made to You from revenue generated by Using Premium Rate Services.
1.15. "Mutual Client" means a client that You have introduced to Communicloud enabling them to Use The Service
1.16. "Reseller" means You have signed a Reseller agreement with Communicloud and are introducing clients to Communicloud with to generate a commission on all individual products and services under The Service sold to those clients at an agreed rate.
1.17 "White Label Service" means Your clients access The service under Your own branding.
1.18 "Breach" means that a standard of service has not be met in accordance with Our Terms or Service Agreement or those of Law including the Electronic Communications Act 2000 and PhonePayPlus
IF YOU DO NOT AGREE TO THE TERMS OF THIS SERVICE AGREEMENT, THE REGISTRATION PROCESS WILL TERMINATE AND YOU WILL NOT BE GIVEN ACCESS TO THE SERVICE.
If You are Using the service as an individual, You represent that You are over the age of 18 or have parental consent to be binded to this agreement (the "service agreement" or "the agreement")
2.2. Usage As A Business or Other Entity.
If You are Using the service for Your business or other entity, You represent that You have the authority to enter into this agreement on behalf of Your business or other entity.
2.3. An Enforceable Agreement.
Whether You agree individually or on behalf of an entity, You agree to all the terms of this service agreement. THIS IS A BINDING AGREEMENT ENFORCEABLE BY COMMUNICLOUD LIMITED.
3.1. Unless specified otherwise, all charges are in pounds sterling and exclude VAT at the prevailing rate.
4: Payment of services
4.1. Purchasing of text and multimedia messages can be made online via a secure service provided by either NoChex Ltd or Worldpay. Crediting of messages to Your account is immediate and will take place once a successful purchase has been made.
4.2 Purchasing of specific products and services is by invoice only. We require invoices to be settled in full within 7 days unless specified otherwise in writing on the invoice. If payment is not made within 14 days of this date We reserve the right to terminate Your access to the service.
4.3. Recovery of debts. Non payment of invoices for services will be referred to a debt recovery agent and a further charge of 15% will be added to cover collection of the debt and costs incurred. Payment of further charges and additional legal fees will be Your responsibility and will be legally enforced.
5: Free Account Additional Specific Terms
5.1. We provide You with the ability to open a Free Account which includes 10 free SMS messages and 3 free MMS messages. This type of account allows You access to The Service (subject to this Service Agreement) and is for evaluation purposes. We reserve the right to not offer any free messages to You if You have already evaluated The Service at any time or have previously had access to the The Service in any way for intended evaluation purposes.
5.2. We reserve the right to not offer a free account or end the offer of 10 free SMS and 3 free MMS messages at anytime and without notice. If You are already Using or evaluating The Service We will provide 60 days notice in writing informing You of any price changes that may apply to Your Use of The Service. If You decide to terminate Use of The Service any SMS or MMS messages paid for will be refunded at the rate they Were purchased. Where purchases Were made via Credit or Debit Card a 2.5% Card handling fee will be deducted to cover costs.
6: Reseller Specific Additional Terms
These terms are specific to You if You operate a Reseller service through Us. They are additional to other terms in this agreement.
6.1. If You are reselling Our products and services to a Mutual Client as a Reseller You are entitled to commission at a rate agreed in writing on any products or services sold by You. We reserve the right to alter commission rates to reflect market and pricing fluctuations as We see fit and any price changes will be advised to You 60 days before they come into effect. You have the right to terminate Your Reseller agreement with Us and are entitled to a refund of the balance of any services paid for that will not be Used. Where purchases were made via Credit or Debit Card a 2.5% Card handling fee will be deducted to cover costs. The Mutual Clients that Use the service are also entitled to terminate any agreement with Us and are entitled to a full refund of remaining balances. Where purchases were made via Credit or Debit Card a 2.5% Card handling fee will be deducted to cover costs.
7: White Label Specific Additional Terms
These terms are specific to You if You operate a White Label service through Us. They are additional to other terms in this agreement.
7.1 We offer a White Label service. Applications can be made to Us to setup a White Label service. We reserve the right to deny applications as We se fit and without reason.
7.2. The White Label services allow You to provide the Service to Your clients under Your own branding and/or domain name. The Service is provided only from Our platform/servers and is not available to host or install elsewhere. If You choose to Use Your own domain name, it must be setup to route only to Our servers or The Service will not operate.
7.3. Your clients operation of The Service is under Your own specific terms and conditions or agreement and not this Service Agreement. However, You are bound to the terms of this Service Agreement and are responsible for Your clients actions and Use or misuse of The Service as if The Service was run wholly by You or any Company for which You are Responsible under this agreement.
7.4. Account Suspension
7.4.1. We reserve the right to suspend access to any of Your clients if their individual services or actions fail to meet the basic criteria of either PhonePayPlus or The Electronic Communications Act 2000.
7.4.2. Sending messages of a harassing, defamatory or other harmful nature, attempting to hide the origin of the message, or spoofing any message to appear to come from someone or somebody else will result in suspension of that Users access to the service and may ultimately result in termination of their access altogether.
7.4.3 In event of a Breach, We will not contact Your client directly. They will see that their account has been suspended and will be shown Your Company contact details as a point of contact for resolution. During their suspension The Service will cease to function. You will be informed in writing of the User concerned, the nature of the breach and details on rectification methods. Wherever practical We will inform You by Telephone to enable You to deal with the breach quickly and resolve it. We do not guarantee that The Service will be resumed for Your client immediately and it may require further investigation as Wee see fit. It is Your responsibility to ensure that Your specific terms regarding Use of The Service state this accordingly. We reserve the right to not reinstate services for any client as We see fit to protect You and Us from their misuse or abuse of The Service.
7.4.4. Further terms may apply to You as defined under Section 7.10.
7.5. You have a responsibility to ensure Your service meets with the criteria of PhonePayPlus and The Electronic Communications Act 2000 and any other regulatory or other law which governs Electronic Communication Services. This may vary from Country to Country and as such We only offer The Service to providers, operators, businesses and end Users within the UK. We restrict SMS and MMS messages to and from only UK numbers beginning with the UK prefix "44". This is not negotiable.
7.6. The White Label service does not automatically entitle You to all products and services that We offer. These will be provided separately and individually only by agreement in writing.
7.7. Premium Rate Services.
We offer a "Premium rate" text message service. This provides a way for end Users to pay for services on receipt of a chargeable text message.
7.7.1. If Your White Label service includes Premium Rate other regulations will apply such as those from PhonePayPlus and any respective networks involved in transporting and delivering the message to the mobile handset.
7.7.2. To Use Premium Rate Services We require You and any client of Yours intending to Using Premium rate register with PhonePayPlus as a Provider. We must have details of all respective Registration Numbers from PhonePayPlus before We will activate any Premium Rate Services on any of Your clients accounts. In addition You agree to seek compliance advice from PhonePayPlus and the Gambling Commission for any service You or Your clients wish to operate and agree to pass on to Us by email all correspondence relating to such advice. We reserve the right to not enable The Service to You or any of Your clients as We see fit without reason if compliance advice has not been met.
7.7.3. We will agree a rate with You in writing that We will pay for every successfully charged and paid Premium Rate message. This rate is a percentage of the specific value each Mobile Network (eg Orange or Vodafone) paid per transaction on any given Billing amount Used.
7.7.4. We will pay monies due to You from Yours or Your clients Use of Premium Rate Services directly to You within 37 and 50 days of the last day of the billing month. We will itemise the monies generated from each of Your clients Use of The Service in a valid Purchase Order and on receipt of a valid invoice will forward one single total payment by Bacs to Your chosen bank Account. It is Your responsibility to pay Your clients directly as You see fit.
7.7.4. You are not automatically entitled to any monies shown as owed to You in any statement We may provide either online or in writing. Payment is subject to Us receiving monies owed from the specific Networks or associated Aggregators. Payment will only be made on receipt of a valid Invoice in respect of a Purchase Order We send to You.
7.7.5. If a service You or Your client operates fails to meet standards set out by PhonePayPlus, The Gambling Commission, the Law (including the Electronic Communications Act 2000) or individual rules determined by the Mobile Networks We will not make payment until You have satisfied Us that Your service complies. In the event that funds are withheld by the Networks or Aggregators You agree to forfeit Your right to the monies until We are forwarded payment.
7.7.5. You agree that You and any of Your clients Using Premium Rate services will adhere to any regulations set out by PhonePayPlus, The Gambling Commission and the Law. You also agree that after permission or approval has been sought altering any part of Your service terms and specific terms and conditions, contact numbers or call to action charges and information forfeits Your right to any monies generated and may ultimately result in suspension of Yours and Your clients access to the Service.
7.7.6. You agree that if You are instructed by Us to make a refund to a mobile User affected by a misleading or inappropriate service operated by You or Your clients You will make payment to the value of the charge incurred by cheque within 7 days. Failure to do so will result in immediate suspension of any Premium Rate Services and monies owed to You will be withheld.
7.7.6 Shared Shortcode. Where You operate a Premium Text Service though the shortcode numbers 82055, 86222, 87222, 84222, 82344, 85199, 70100, 70003 and 70700 You are responsible in ensuring that all services comply with PhonePayPlus, The Gambling Commission and the Law. Failure to do so could result in suspension of the shortcode and You will be financially responsible for any loss of service or income We or other clients incur as a result.
7.7.6. Fines for "non compliance" from PhonePayPlus. In addition to 7.7.6 You will be liable to pay any fine that PhonePayPlus impose on either Us or You as a result of a non compliant service that You operate or have operated.
7.8. As White Label operator You must sign an agreement with Us which allows Your clients to access The Service under Your own branding. You must provide Us with a Company Logo, Company information such as VAT number, Address, Company Name and offer a contact name and number within the company of a person responsible for operating the service in a manner which adheres to Our terms an this Service Agreement.
7.9. Competing With Communicloud Ltd
7.9.1. You will not Use The Service to compete directly with Us. The White Label service is provided in good faith for You to acquire Your own customers under Your own brand. You agree not to contact or acquire customers that have a relationship with Communicloud Ltd. You agree to take all reasonable steps to satisfy Yourself that a prospective client is not a client of Communicloud Ltd. Approaching, offering The Service to, or Tendering a client that You know is or has been a client of Communicloud Ltd is strictly forbidden and We reserve the right to end Our relationship with You and terminate Your Use to the White Label service and You further agree to forfeit Your right to any refund or compensation for Your loss of The Service.
7.10. Payment of White Label Services
7.10.1. You are required to pay for the The Service in a timely manner. Any invoices We send that are part of The Service (including service fees, keyword fees, admin fees, SMS and MMS fees) within 7 days of the invoice date. If You fail to pay on time We reserve the right to suspend The Service to You and or Your clients without notice. You agree to indemnify Communicloud Ltd against claims arising from Your clients loss of The Service.
7.10.2. If You have not settled outstanding invoices with Us within 30 days We reserve the right to terminate Our relationship with You and end The Service and You further agree to forfeit Your right to any refund or compensation for Your loss of The Service. You agree to indemnify Communicloud Ltd against claims arising from Your clients loss of The Service.
7.10.3. We reserve the right to deduct the value of outstanding invoices that are overdue by more than 7 days from monies owed to You from any Premium Rate revenue generated that We state You are due ("due" in this context means We have sent You a valid Purchase Order with a Pound Sterling value to enable You to invoice Us for monies owed to You). We will be entitled to charge a further 10% (up to a maximum of £100) of the Invoice value as a administration fee. We will do this to enable You to keep The Service running and protect Your clients interests. We reserve the right to terminate the service as described under Section 7.10.2 as We see fit. All monies owed to You will be paid when due as per Section 7.7 and particularly Section 7.7.4 (less any payments You oWe to Us).
8. Access To services.
8.1. We provide access to Our services via an Online interface only which is proprietary. Access to the service will be available to You or Your clients at any time unless subject to Section 9.
9. Force Majeure.
9.1. We are not liable for any failure in Our obligations if We are prevented from doing so by any event beyond Our reasonable control (which may include without limitation, strikes, labOur disputes, acts of God, war, riot, civil action, malicious acts or damage, compliance with Law, Government or regulatory order, rule, regulation or direction, fire, flood, storm or equipment or service failure including the loss of availability of telecommunication services such as telephone or data lines or other equipment).
10. Storage of Data.
10.1. We are required by law to keep a record of all SMS and MMS traffic sent and received by The Service. A record of each message and the time and date will be kept for a minimum of 7 years. If at any time a Mobile Network, PhonePayPlus or the Police wish to see a traffic report We will furnish them with a full traffic report provided they have permission to access it.
11. Data Sensitivity
11.1. Data transmitted to mobile phones is not fully secure and We advise strongly against sending sensitive data via SMS or MMS message. We cannot delete any message sent and still hold a record of any message sent for a minimum of 7 years. We are registered with the Information Commissioners Office (ICO) and Your data is protected and stored and Used as required by the Data Protection Act 1998.
12. Your Responsibilities
12.1. You understand that Use of The Service (and any product or service that Communicloud Ltd provide) is subject to these terms and conditions. These terms and conditions may be amended from time to time without notice. They should be checked from time to time and continued Use of The Service after any changes is Your acceptance of the changes.
12.2. You are responsible for obtaining and maintaining all computer software, hardware and communications and other equipment required to Use or access The Service.
12.3. You are responsible for paying all third-party access charges such as ISP or telecommunications costs incurred.
12.4. You will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Communicloud Ltd Software.
12.5. You will not modify, translate, or create derivative works based on the Communicloud Ltd Software and Service.
12.6. You will not rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Communicloud Software and Service without express permission.
12.7..You will not Use the Communicloud Software and Service for the benefit of a third party without express permission under Our White Label program.
12.8. You understand and agree that the Communicloud Software is proprietary. You agree not to publish or disclose to third parties any evaluation of the Communicloud Software without Our prior written consent.
12.9. You acknowledge that Communicloud retains exclusive ownership throughout the world of all Software, any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, You will cease to Use and have access to the Software.
12.10.. You will not Use the Software and the Service for creating or sending junk messages, spam advertising, or spamming in any form. By Using The Service You agree to abide by any applicable laws including the Electronic Communications Act 2000, PhonePayPlus, and The Gambling Commission. Your messages must also clearly state who they are from (either in the message or the Originator ID), how You can be contacted (if it is not clearly obvious) and how the recipient can opt out of receiving such messages.
12.11. You agree not to transmit or permit anyone to transmit any unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind.
12.12. You will only Use the Software and The Service for lawful purposes, and in compliance with all applicable laws including, without limitation, copyright, trademark, patent, intellectual property, obscenity and defamation laws, whether statutory or common-law in nature.
12.13. You will not Use the Software and the Service for any unlawful activities.
12.14. You agree to defend, indemnify and hold Communicloud Ltd harmless against any claim or action that arises from Your Use of the Software and The Service in an unlawful manner or in any manner inconsistent with the restrictions and policies of this agreement.
12.15. You will not create or Use an Originator ID which deliberately hides Your identity, infringes copyright and/or trademarks, or attempts to disguise Your message as appearing to originate from another party or organisation. In doing so, Your right to The Service will be suspended and/or terminated immediately.
12.16. You will not Use the Software and the Service to compete
against Communicloud Ltd. If You are Using the White Label service
Section 7.9 also applies directly to You.
12.17. You may be provided with the Use of one or more keywords on a shortcode number by prior arrangement in addition to The Service described above. Use of the shortcode number is strictly monitored and activity is recorded. Neither keywords nor the shortcode are owned by You and Communicloud Ltd reserve the right to withdraw any keywords, the Use of the shortcode or any other part of The Service without notice at any time if payment is not made for such services within 7 days of an invoice being raised. Where part of or all services are withdrawn, We cannot guarantee that the same services can be provided after being withdrawn.
12.18. The shortcode number "82055" and virtual number "07716711744" can only be Used as an Originator ID to enable two way messaging from The Service. You are not permitted to Use either with a broadcasting service provided by a third party other than Communicloud Ltd without prior arrangement. We reserve the right to terminate The Service if You do not comply. To comply with the Electronic Communications Act 2000, all messages, mobile telephone numbers and dates sent through Our systems are recorded for a period of 7 years and provide an accurate way for clients to opt in or out of receiving messages sent via The Service. By Using a third party system You will be deemed to be attempting to override this facility and We reserve the right to terminate The Service.
12.19. Communicloud Ltd reserve the right to contact any clients or end Users to gain information and/or statements for evidence from such if We believe there has been misuse of The Service. We have a legal responsibility under the Electronic Communications Act 2000 and the regulations set out by The Data Protection act 1998 and PhonePayPlus (the shortcode regulatory body) to protect a person or persons from attempted misuse of The Services.
12.20. Where the service is being Used for Charity Donations, no gift aid or similar benefit is claimed by Communicloud Ltd in respect of any donation. All donations are subject to the normal network/aggregator fees and We will provide these in writing prior to Your Use of The Service. Use of The Service for receiving Charity Donations is subject to Your agreement of these fees.
12.21. Premium Text/Premium Rate Services:
12.21.1. To Use Premium Rate Services We require You to register with PhonePayPlus as a Provider. We must have details of all respective Registration Numbers from PhonePayPlus before We will activate any Premium Rate Services for You. In addition You agree to seek compliance advice from PhonePayPlus and the Gambling Commission for any service You wish to operate and agree to pass on to Us by email all correspondence relating to such advice. We reserve the right to not enable The Service to You as We see fit without reason if compliance advice has not been met.
12.21.2. We will agree a rate with You in writing that We will pay for every successfully charged and paid Premium Rate message. This rate is a percentage of the specific value each Mobile Network (eg Orange or Vodafone) paid per transaction on any given Billing amount Used.
12.21.3. We will pay monies due to You from Your Use of Premium Rate Services directly to You within 37 and 50 days of the last day of the billing month. We will itemise the monies generated from each of Your clients Use of The Service in a valid Purchase Order and on receipt of a valid invoice will forward one single total payment by BACS to Your chosen bank Account.
12.21.4. Payments due to You from Premium Rate Services totaling more than £50 are free of charge. To claim less than £50 a £10 administration fee will be applied to cover administration costs and/or banking charges.
12.21.5. Any statement of monies owed or generated from Premium Rate Services that We may provide (either online or in writing) is not a guarantee that Payment will be made. Any Payment We make is subject to Us receiving monies owed from the specific Networks or associated Aggregators and continued compliance of your service with PhonePayPlus (the PRS regulatory body). In all cases, Payment will only be made on receipt of a valid Invoice in respect of a Purchase Order We send to You.
12.21.6. If a service You operates fails to meet compliance standards set out by PhonePayPlus, The Gambling Commission, the Law (including the Electronic Communications Act 2000) or individual rules determined by the Mobile Networks, Aggregators or Ourselves, We will not make payment until You have satisfied Us that Your service continually complied with all compliance requirements. If a service did/does not comply We will withhold any Payment due as We see fit until any investigation We or other involved party concerned is completed.
12.21.7. You agree that when You Use Premium Rate services You will adhere to any regulations set out by PhonePayPlus, The Gambling Commission and the Law. You also agree that after permission or approval has been sought altering any part of Your service, the terms and conditions, contact numbers, call to action charges, placement and size of wording, hiding of information or otherwise, using services that have not been agreed and approved or failing to continually comply forfeits Your right to any monies generated and may ultimately result in suspension of Your access to the Service indefinately.
12.21.8. You agree that if You are instructed by Us to make a refund to a mobile User affected by a service operated by You, You will make payment to the value of the charge incurred by cheque within 7 days. Failure to do so will result in immediate suspension of any Premium Rate Services and monies owed to You will be forfeited.
12.21.9. Shared Shortcode. Where You operate a Premium Text Service though the shortcode numbers 82055, 86222, 87222, 84222, 82344, 85199, 70100, 70003 and 70700 You are responsible in ensuring that all services comply with PhonePayPlus, The Gambling Commission and the Law. Failure to do so could result in suspension of the shortcode and You will be financially responsible for any loss of service or income We or other clients incur as a result.
12.21.10. Fines for "non compliance" from PhonePayPlus. In addition to 12.21.9 You will be liable to pay any fine that PhonePayPlus impose on either Us or You as a result of a non compliant service that You operate, or have operated.
12.21.11 Marketing of Reverse Billing and Premium Rate services: When offering a Premium Rate service, You must abide by the The Code Of Conduct provided by PhonePayPlus. Incorrectly displaying the charges of the service, not displaying the charges, making the charges illegible or providing misleading information to customers or omitting information as required by The Code Of Conduct may result in immediate termination of the Premium Rate service without notice and may result in individual action against You by PhonePayPlus or an affected Network.
12.21.12 Subscription Services: Where a Premium Text "subscription type" service is provided to end Users, You must abide by the most recent Code Of Conduct as provided by PhonePayPlus. In addition you must provide us with an approval document from PhonePayPlus. Incorrectly displaying the charges of the service, billing frequencies, not displaying the charges, making the charges illegible or providing misleading information to customers or omitting information as required by The Code Of Conduct may result in immediate termination of the Premium Rate service without notice and may result in individual action against You by PhonePayPlus or an affected Network and You will forfeit any rights to monies owed to You.
12.21.12. You accept when Using Premium Rate services that any service You operate will comply with the Code Of Conduct as described under Section 12.21.
12.21.13. Fraudulent Use. Communicloud Ltd provides the service in good faith for legitimate services to operate. We work closely with the UK networks to monitor activity that may appear fraudulent including activities that are against Our terms and conditions, those of PhonePayPlus, those of Our aggregators or networks or against the Law. It is strictly forbidden to Use Our services to operate any service that is fraudulent (including money laundering or spoof services). If transactions appear to originate from multiple single mobile telephone numbers or higher than normal traffic exists on any particular network, We may suspend The Service whilst We investigate. During any investigation We will withhold out payments owed to You until any investigation has been resolved. Monies owed to You will be made once Communicloud Ltd and/or the involved networks or other involved parties are satisfied that the service was operated within each parties terms and conditions, regulations and the Law and is subject to Communicloud Ltd receiving any monies owed to You from the Networks or Aggregators.
12.22. Use of Your own data. We provide a facility to upload Your own data and numbers to The Service. Any person added to The Service should be sent a message informing them of what messages they will receive in the future from You and must contain details of clear opt out instructions. Any end User can text STOP to 82055 to opt out and their number will be removed automatically from any online data that We hold. However, the responsibility to ensure no more messages are sent to the client remains with You.
You may have additional responsibilities set forth elsewhere in this agreement.
13. Our Responsibilities.
A. What You Receive Under This Agreement.
13.1. We grant to You an individual, personal, non-sub licensable, non-exclusive and non-transferable license or right to Use Our The Service pursuant to the terms and conditions set forth in this agreement and as they may be modified on Our Web site.
13.2. We do not guarantee the continuous availability of the service or of any specific feature. We will inform You via its Web site only of any significant changes to The Service or this Agreement.
13.3. We provide a built in system to monitor the throughput of messages sent. Messages "not accepted" at submission are credited back to You. You only pay for messages that Were accepted by the Network or Third Party Aggregator and show as submitted successfully.
13.4. We cannot guarantee that any message submitted to the
network is ultimately delivered to a mobile phone/end User. Third
party networks and infrastructure form part of The Service and
Mobile Phones may be out of range, switched off, barred, faulty or
otherwise defunct and unable to receive messages. Reports are
provided for You to identify why messages cannot be delivered and it
is Your responsibility to de-activate or quarantine
undeliverable/problem mobile numbers. Any message accepted by the
network is chargeable to You. We are not responsible for validating
the numbers contained in Your database or uploaded files except for
checking if each number has the correct number of digits or appears
to be a valid number.
13.5. We only provide The Service for Use in the United Kingdom and Northern Ireland.
13.6. It is Our policy to respect the privacy of Our Users.
13.7. We will not share, rent, sell, or trade personal information (including mobile numbers or e-mail addresses) identifying Our customers or Users to third parties unless instructed to do so by OFCOM, PhonePayPlus or The Police.
13.8. We will not share, rent, sell, or trade data contained in Your account. We, however, may Use this information to contact You to insure that You are satisfied with Our products and services, to learn about any ideas You may have to improve Our offerings, to call Your attention to additional or new offerings or services, and communicate other information.
13.9. We may send e-mail to Your registered e-mail address concerning Our news or additional services We believe may be of interest to You.
13.10. We may ask You to provide demographic or personal preference data. If You provide such data, We may Use it to analyse the characteristics of Our customers and visitors. We may also Use the data to customise the specific information provided to You, or tailor it to better meet Your needs.
13.12. We reserve the right to contact You about Your account statUs or changes or alterations to the service, or additional offerings or services. You may request that You not receive informational e-mail messages not related to Your account activity or current Use by e-mailing to support @ communicloud.co.uk.
13.14. We deliver messages through a variety of private and public systems. We do not guarantee privacy.
13.15. We will cooperate with any legitimate law enforcement agency if Our messaging services are suspected of Use for any unlawful or improper purpose.
14. Warranty and Disclaimer.
14.1. THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. COMMUNICLOUD LTD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14.2. COMMUNICLOUD LTD DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
4.3 Limitation of Liability.
4.3.1. Our LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY You IN THE TWO (2) MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.
4.3.2. We SHALL NOT BE LIABLE FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING THE COST OF ANY SUBSTITUTE PROCUREMENT), FORESEEABLE OR NOT AND EVEN IF We HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3.3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF The Service IS AT Your RISK. You WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO Your COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF The Service.
15.1. Communicloud Ltd, or its designee, shall provide e-mail support to non paying customers and also provide telephone support to paid service customers. It has no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications, or other support unless there is a separate written contract to that effect.
16. Provision of Contact and Billing Information and Payment of Fees, Products or Services.
16.1 Failure to maintain Your contractual obligations or operating The Service not in accordance with these Terms and Conditions may result in termination of service and withdrawal of access to the site or to The Service We provide for You.
16.2. Additional Worldpay refund policy. Communicloud Ltd Uses the billing services of a third-party, Worldpay. When purchases are made via Worldpay, You are offered seven full days to cancel and are entitled to a full refund. If any products or messages are Used during the seven day period this right is waived. Refund applications must be made in writing either by Email or by letter to Our registered address. This does not affect Your statutory rights.
17. Passwords and Security.
17.1. You will choose all applicable passwords to Use in connection with The Service.
17.2. You are responsible for maintaining the confidentiality of Your passwords and access to The Service.
17.3. You are entirely responsible for any and all activities that occur under Your Use of The Service. You shall ensure that You exit by form of 'Logout' from Your account at the end of each session.
17.4. You shall notify Us immediately of any unauthorised Use of Your account.
17.5. You may not allow any third party, related or unrelated, to Use Your account, unless they have been granted the Use of the service as a Sub User. All Terms and Conditions still apply and it is Your responsibility to ensure that Your account is operated under these Terms and Conditions.
17.6. Communicloud Ltd cannot and will not be liable for any loss or damage arising from Your failure to comply with these requirements.
18.1. Either party may terminate this Service Agreement by notifying the other party in writing at least thirty (30) days before the termination date.
18.2. Communicloud Ltd, in its sole discretion, may terminate Your Use of the Service if You fail to comply with this Agreement. No refunds will be given and any unused messages or services will be lost.
18.3. You will pay in full for The Service up to and including
the last day of the current billing cycle. To cancel the Service or
change the type of service, You must contact Us in writing. All such
requests received prior to ten (10) days of the end of the customer
billing cycle will incur no additional charges. Requests for
cancelled or changed service received within ten (10) days of the
end of the customer billing cycle may incur one additional month of
18.4. For Prepay type accounts, any messages remaining on the account will be lost. No refunds will be given.
18.5. Communicloud Ltd will archive Your data after termination and will keep this up to 7 years. Communicloud Ltd may, but is not obligated to, delete archived data. We reserve the right to cease offering the Service to no-charge Users at any time without notice.
8.6. Upon expiration or termination, You will immediately cease all Use of the Service, including the Communicloud Ltd Software and any documentation. Termination is not an exclusive remedy. All other remedies will be available. Your payment obligation will survive termination.
18.7. If You are dissatisfied with the Service or with any of Our terms and conditions, Your sole and exclusive remedy is to discontinue the Service and Terminate any agreement subject to Your liabilities as set forth in this document, any agreement We have or contract both parties have agreed to.
18.8. Refund of fees: A refund of fees may be paid if the account has been Used correctly and We are notified in writing within 28 days of account inception. If We terminate the service due to a breach of this agreement or any applicable laws governing Use of such services, no refund of fees will be given.
19. Third Party Links.
19.1. We may provide links to other internet sites or resources. We have no control over such sites and resources. You therefore agree that We are not responsible for the availability and content of other internet sites or resources.
19.2. You agree further that Communicloud Ltd does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
19.3. You agree that Communicloud Ltd shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Use of or reliance on any such content, goods or services available on or through any such site or resource.
20. Non-Waiver of Additional Rights.
20.1. This Agreement is betWeen Communicloud Ltd and You. It is not for the benefit of any third party, whether directly or indirectly (including any User accessing The Service by means of an account established by You). The failure of either party to exercise any right provided will not be deemed a waiver of any further rights.
21. Effect of Invalidity of a Provision of This Agreement.
21.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
22. Non-Assignability of This Agreement.
22.1. This Agreement is not assignable, transferable or sub-licensable by You except with Communicloud Ltd prior written consent.
23. One Year to Bring a Claim.
23.1. You agree that any cause of action or claim arising out of or related to The Service and this Agreement must be filed with a court or other governmental agency having jurisdiction within one (1) year after the cause of action or claim arose. Otherwise, the cause of action or claim is barred.
24. Sole Agreement of the Parties.
24.1. This Agreement is the complete and exclusive statement of the mutual understandings of the parties. It supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All modifications must be in writing signed by both parties, except as otherwise provided herein. There are no oral agreements or side agreements of any type.
25. No Agency Created By This Agreement.
25.1 No agency, partnership, joint venture, or employment is created as a result of this Agreement. You do not have any authority to bind Communicloud Ltd in any respect.
26. No Solicitor Fees or Costs Available.
26.1. In any action, complaint, administrative proceeding, informal complaint to any court or agency, to enforce rights under this Agreement, neither the prevailing nor the losing party will be entitled to recover costs and/or fees.
All notices must be in writing. A notice is deemed to have been given:
17.1. When received, if personally delivered;
17.2. When receipt is electronically confirmed, if transmitted by facsimile or e-mail;
17.3. The day after it is sent, if sent by next-day delivery by recognised overnight delivery service; and
17.4. Upon receipt, if sent by certified or registered mail, return receipt requested.
18. Agreement in English.
18.1. This Agreement and all related documents have been prepared in English with the consent of the parties.
19. Nature of This Agreement.
19.1. The parties acknowledge that they have met over the internet, that they have not met in person and have not had any direct telephonic contact prior to agreement, that this agreement has been provided by Communicloud Ltd to the customer over the internet and through the Web site, that this agreement has been executed electronically, that there is no hard or paper copy of this agreement, that the parties consent to the manner and circumstances of the making of this agreement, and that said agreement is to have the full force and effect of any agreement prepared in writing.