TERMS OF SERVICE
Version number: 3.0
NOTHING IN THESE TERMS OF SERVICE SHALL RESTRICT OR INTERFERE WITH THE OTHER PARTY’S RIGHTS AND OBLIGATIONS UNDER THE GENERAL DATA PROTECTION REGULATION (‘GDPR’) THAT COMES INTO EFECT ON 25TH MAY 2018. IN ACCORDANCE WITH ARTICLE 82 OF GDPR BY USING THE MOBILE MESSENGER SERVICE YOU HEREBY AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM ANY LOSSES THAT RESULT FROM YOUR BREACH OF THE GDPR. YOU FURTHER AGREE THAT, IF APPLICABLE TO YOU, YOU HAVE SIGNED A DATA PROCESSING AGREEMENT WITH US THAT COMPLIES WITH GDPR.
If you have any questions regarding these Terms of Service or the GDPR then please contact us on +44 (0)131 555 1384 or on +44 (0)870 760 7030 or by email to firstname.lastname@example.org
These Terms of Service (the “Agreement”) are a legal agreement between you as the user (“you” or “the Client”) and Intelligent Mobile Limited (Company No. 266060) whose registered office is at 9-10 St Andrew Square, Edinburgh EH2 2AF (“Intelligent Mobile”, or “we” “our” or “us”) that governs your right to use the Mobile Messenger Service (as defined below).
By registering for, or using the Mobile Messenger Service you agree that you have read, understand and are bound by this Agreement, regardless of how you registered for or use the Mobile Messenger Service.
If you do not want to be bound by this Agreement, you must not register for, or use the Mobile Messenger Service.
If you have concluded a Written Contract with us or signed a Service Order Form (as defined below), you will also be bound by these terms and conditions. However, to the extent that there is a conflict between the Written Contract or Service Order Form and these terms and conditions, the Written Contract or Service Order Form will prevail.
We may amend this Agreement from time to time. We will provide you with advance notice of the modifications via email to the email associated with your Account and by updating the version of this Agreement on our Site. All amended terms automatically take effect on the sooner day you use the Service, or 30 calendar days after they are updated on the Site. Your use of the Mobile Messenger Service following the effective date of any modifications to this Agreement will constitute your acceptance of the Agreement, as modified.
Hyperlinks in these terms and conditions form part of the terms and conditions of this Agreement. Any hyperlinks which are not operational will not in any way detract from the validity and interpretation of this Agreement. This Agreement do not affect or alter any other agreements that you may have with Intelligent Mobile Limited that do not relate specifically to the Mobile Messenger Service.
Account: an account with Intelligent Mobile to use the Mobile Messenger Service;
Agreement: these Terms of Service, including any Written Contract or Service Order Form (if applicable) which in their totality, govern your relationship with Intelligent Mobile in respect of your use of the Mobile Messenger Service;
Codes of Practice: the guidelines and regulations of the Regulatory Bodies and/or the Network Operators, as are issued from time to time;
Client/you: a limited company, partnership, sole trader or any other legal entity which has signed the Service Order Form or Written Contract or has registered as a user or uses the Mobile Messenger Service and includes any Affiliates of the Client (within the meaning of section 736 of the Companies Act as modified, amended or re-enacted from time to time);
Content: all or any information, data, documents, graphics, photographs, plans, software, text, videos, reports or other material of any kind created or provided by the Client for use in the Mobile Messenger Service;
Customer: users in the Territory who access the Content via the Mobile Messenger Service;
Customer Data: any records of Customers including but not limited to Customer mobile numbers, e-mail address and Personal Data;
Data Protection Laws: means the Data Protection Act 1998 and, with effect from the date on which it enters into force, the General Data Protection Regulation, and the enacted version of the Data Protection Bill 2017, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 together with any other laws applicable to the protection of personal data in force from time to time in the United Kingdom and any related regulations and guidance (as from time to time amended, extended, re-enacted or consolidated) and all subordinate legislation, regulations and guidance made pursuant to any of them;
Force Majeure: circumstances beyond the reasonable control of a party including without limitation, acts of God, fire, flood, war, insurrection or civil disorder, requirements imposed by or pursuant to government regulation, or civil or military authorities or Network Operators or Networks acts and/or omissions;
Good Industry Practice: Intelligent Mobile exercising the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced mobile services provider engaged in providing a service similar to the Mobile Messenger Service, under the same or similar circumstances;
Intellectual Property Rights: any patent, trade mark, design right, copyright, database protection right, know-how and any other industrial or commercial property monopoly right whether registered or unregistered and whether presently existing or applied for;
Intelligent Mobile: Intelligent Mobile Limited, a limited company registered in Scotland under company number 266060 whose registered office is at 9-10 St Andrews Square, Edinburgh EH2 2AFand whose main trading address is 94 White Lion Street, London N1 9PF;
Mobile Messenger Service: the software as a service operated by Intelligent Mobile under this Agreement that enable you amongst other things to send and receive SMS text messages and view their delivery success and such other functions and account management services that have been set up and configured for you in accordance with your requirements;
Network Operators: the licensed telecommunications operators or connectivity aggregators who Intelligent Mobile contracts with for the transmission of the Mobile Messenger Service via the Networks;
Networks: the public telecommunications (or third party) systems located in the Territory and which may be used for the provision of the Content to Customers pursuant hereto;
Numbers: any telephone number(s) and/or short codes for use in respect of the Mobile Messenger Service and including any replacements;
Personal Data: any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural or social identity of that natural person;
Regulatory Bodies: any regulatory body whose function it may be (amongst other things) to enforce and administer any industry codes of practice or guidelines in the Territory, including (but not limited to) Phone-paid Services Authority (PSA), the Office of Communications (OFCOM) and the Information Commissioner’s Office (ICO) or other competent authority or their respective successors;
Service Order Form: the Service Order Form signed by you prior to using the Mobile Messenger Service (if applicable);
Site/s: the website intelligentmobile.com, in addition any sub-pages that are integrated within this website and other URLs used to provide the Mobile Messenger Service to Clients such as dashboard.iptxt.com and mobilemessenger.co.uk;
Territory: the United Kingdom and any other territory set out in the Service Order Form or Written Contract;
Written Contract: any written contract signed by you and Intelligent Mobile which is intended, in whole or in part, to regulate the provision of the Mobile Messenger Service to include any data processing agreements which reflect the parties’ agreement with regard to the processing of Personal Data in accordance with the Data Protection Laws.
2. TERM & TERMINATION
2.1 You may cease use of the Mobile Messenger Service at any time without notice.
2.2 In the event of termination or suspension of the Mobile Messenger Service any monies owing by you become due immediately.
2.3 Intelligent Mobile reserves the right to suspend your use of the Mobile Messenger Service without notice in the event of non-payment of overdue invoices or inappropriate use of the service.
2.4 Intelligent Mobile shall provide the Mobile Messenger Service which may be improved, varied, modified or extended from time to time. Intelligent Mobile reserves the right to withdraw the Mobile Messenger Service at any time. In the event of such withdrawal the Client shall be refunded that part of any pre-payment or fee made. If you wish to terminate the Mobile Messenger Service then you should make sure you have used any pre-paid SMS credits first as no refunds are available.
3. MOBILE MESSENGER SERVICE PROVISIONS
3.1 Service Provisions: Intelligent Mobile shall provide the Mobile Messenger Service to the Client with all reasonable skill and care and in accordance with Good Industry Practice. Given the nature of the Internet and mobile networks and the acts of third parties which are beyond the reasonable control of Intelligent Mobile, Intelligent Mobile does not warrant or guarantee that the Mobile Messenger Service shall be continuous, or will be free from faults or that Content will always be delivered to end users.
3.2 Customer Care: Intelligent Mobile will provide the first line support and customer care to Clients in accordance with Good Industry Practice. Details of your account manager and contact details are provided to you on registration.
3.3 Data Protection: Intelligent Mobile and the Client agree to be bound by and comply with the provisions of the Data Protection Laws. The Client acknowledges that the Data Protection Laws expressly forbid the use of spam (sending of unsolicited SMS messages and e-mails) and the Client undertakes that all Content transmitted through the Mobile Messenger Service and all use by it of information from the Mobile Messenger Service shall be lawful and shall at all times conform to the Data Protection Act 1998, the General Data Protection Regulation (GDPR) the Privacy and Electronic Communications Regulations (PECR), and any amendments or replacements thereof.
3.4 Content: Intelligent Mobile processes messages on an automated basis. Intelligent Mobile is not responsible for the Content or contents of a message or of its accuracy. Intelligent Mobile transmits messages in good faith and cannot be held responsible for the views or opinions of any Content.
3.5 Appropriate Usage of Service: When you register, you must submit correct information regarding your identity, organisation and address details. It is not permitted to use any of the Intelligent Mobile services for illegal or unreasonable activities. Clients who send threatening or demeaning messages will have their Mobile Messenger account at Intelligent Mobile closed. Intelligent Mobile does not permit SMS “spam” and will close the account of any person or organisation who engages in unsolicited bulk messaging. Deliberate misuse of the Intelligent Mobile service will cause the Client account to be closed immediately. In the event of closure of the account any outstanding monies will fall due immediately. If you have not followed the above guidelines, you agree to indemnify us against any costs or losses we may incur as a result of any claims or legal proceedings that are brought or threatened against us by any third party.
3.6 Security: During registration of your account we will issue you with an administrator password which will enable you to set up other user names and passwords. These are essential for your organisation’s secure use of the service. You will be responsible for keeping this information confidential and agree to take all necessary steps and have in place the necessary technical and organisational measures to ensure that it is kept secure and not disclosed to any unauthorised person. If you believe that your username or password has been discovered or is being misused by someone else, then you must tell us immediately and take all steps necessary (or requested by us) to prevent such use. If we think there is likely to be a misuse of the Mobile Messenger Service because of a breach of security we may either suspend your use of the Mobile Messenger Service or change your password and then notify you of this.
4.1 All charges are in pounds sterling and exclude VAT, which will be applied at 20%, where applicable. The charges that apply to you are stated in the Service Order Form or have been agreed and documented in writing with you.
4.2 You will receive a monthly invoice from us for the messages that you sent in the previous calendar month. You agree to pay to Intelligent Mobile within 30 calendar days of the invoice date.
Please note that when sending text messages that comprises of more than 160 characters, the following character count applies for the purposes of charging:-
160 characters or less = 1 SMS message unit;
306 characters or less = 2 SMS message units;
459 characters or less = 3 SMS messages units;
612 characters or less = 4 SMS messages units (the maximum).
4.3 Intelligent Mobile reserves the right at its discretion to charge the higher of either the statutory rate of interest for late payments or interest at 2 per cent per month, above the base lending rate of the Bank of England on any sum not paid on the due date, together with all costs of recovery. Such interest shall run from day to day and accrue until full payment has been made. The Client is required to notify Intelligent Mobile within 10 calendar days of its receipt of an invoice if it has any question, which would lead it to dispute an invoice or part thereof.
4.4 Intelligent Mobile reserves the right to alter the pricing details and charges at any time provided that it gives the Client not less than 30 days prior notice unless an exceptional charge out with the control of Intelligent Mobile is imposed by the Network Operators, in which case, such charge will be deemed to take effect within 7 days of issue of a written notice to the Client.
4.5 Intelligent Mobile may require the Client to enter into a standing order or direct debit arrangement for payment of agreed fees and Intelligent Mobile may suspend the provision of the Mobile Messenger Service in the event that the Client cancels that arrangement once commenced.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights in the Content and Customer Data belong to the Client. Nothing in this Agreement shall transfer any ownership, or any aspect of ownership in and to the Content, the Client’s trademarks, brands or logos to Intelligent Mobile.
5.2 All Intellectual Property Rights in and to the Mobile Messenger Service (excluding the Content and Customer Data), the Numbers and the Intelligent Mobile trademarks, brands and logos belong to Intelligent Mobile. Nothing in this Agreement shall transfer ownership, or any aspect of ownership in and to the Mobile Messenger Service, the Numbers or the Intelligent Mobile trademarks, brands or logos to the Client. Further, nothing in this Agreement shall be deemed to grant to the Client a licence in Intelligent Mobile’s Intellectual Property Rights. The Client acknowledges that the content and design of the Mobile Messenger Service and all underlying compilations and source code are subject to copyright and other Intellectual Property Rights owned by Intelligent Mobile and the Client warrants that at no time, whether now or in the future, shall it attempt to build a copy of or reverse engineer any part or process of the Mobile Messenger Service.
6. LIMITATION OF LIABILITY
6.1 Neither party shall be liable for any failure to meet its obligations under this Agreement as a result of a Force Majeure event.
6.2 Intelligent Mobile will not be liable to the Client for loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with this Agreement.
6.3 Intelligent Mobile accepts no liability for any breach of your obligations under this Agreement. Intelligent Mobile provide the Mobile Messenger Service as a medium between you, your Customers and third parties and shall not be liable for your use of the Mobile Messenger Service.
6.4 Save in the case of liability for death or personal injury caused by negligence or as provided for in the GDPR, Intelligent Mobile’s maximum aggregate liability under the provisions of this Agreement shall be limited to and not exceed the amount of the fees paid to Intelligent Mobile by the Client in respect of their Account for the preceding one month or part thereof including all liabilities to the Client whether contractual, tortuous or otherwise.
7. CONSEQUENCES OF TERMINATION
7.1 Termination of this Agreement for any reason shall be without prejudice to any rights that either party may have against the other under this Agreement, which have accrued up to the date of termination.
7.2 Promptly upon on termination of this Agreement for whatever reason: a) Intelligent Mobile will as soon as practicable remove the Content from the Mobile Messenger Service; b) all outstanding or accrued amounts due by either party shall become due and payable in accordance with the terms of this Agreement; and c) both parties shall purge from their computer systems, storage media and other files and at the other party’s option destroy or deliver to the other all items within that party’s possession or control that contain any information relating to the Mobile Messenger Service or bear the other party’s trademarks.
7.3 The Client agrees and undertakes that for a period of 12 months from termination or expiry of this Agreement, the Client shall not develop software or services that are materially similar to the Mobile Messenger Service and which compete directly with the business of Intelligent Mobile.
7.4 On termination of this Agreement (howsoever caused) those provisions under this Agreement capable of surviving termination including but not limited to the Clauses headed Confidentiality, Intellectual Property Rights, Limitation of Liability and Data Protection shall continue in full force and effect.
8.1 The parties shall each keep in confidence any information (whether written or oral) of a confidential nature (“Confidential Information”) obtained under or in connection with this Agreement and will not (without the prior written consent of the other party) disclose that Confidential Information to any person other than the parties employees or professional advisers. For the purposes of this Clause Confidential Information includes but is not limited to the confidential commercial, financial, marketing, business and technical or other data, know-how, trade secrets.
8.2 The Client agrees and undertakes to safeguard as private and confidential all aspects of and access to the Intelligent Mobile’s software and all aspects of the Intelligent Mobile system and in no circumstances shall the Client allow any person (be they an employee, third party, agent, advisor or otherwise) access to any part of the Intelligent Mobile’s software or system for the purposes of either:-
8.2.1 internally developing a software system or service similar to or a copy of Intelligent Mobile’s software and/or the Mobile Messenger Service; or
8.2.2 creating a software specification for a third party or assisting a third party to develop software or a service or system that is similar to or a copy of Intelligent Mobile’s software and/or the Mobile Messenger Service.
Any variation to this Agreement must be in writing and signed by or on behalf of an authorised person of both parties.
Any notices must be sent by receipted e-mail, post or delivered by hand as follows:
10.1 To you, at the address you have given us or the email address given to us in your registration details;
10.2 To us by email or by post to our registered office at 9-10 St Andrew Square, Edinburgh EH2 2AF or such other address as may be notified to you.
Neither party shall make any announcement, press release or reference in any marketing or promotional material concerning the subject matter of this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed) except Intelligent Mobile may for its own promotional purposes on its Site and in other promotional material list itself as a supplier to the Client.
12. ASSIGNMENT & SUBCONTRACTING
Intelligent Mobile may assign or transfer any of its rights, benefits or obligations under this Agreement. Intelligent Mobile shall be entitled to subcontract the performance of any of its obligations under this Agreement provided always that where it sub-contracts the provisions of such services it shall do so using reasonable care in the selection of the third party service provider. The Client shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder nor sub-license the use (in whole or in part) of any part of the Mobile Messenger Service without Intelligent Mobile’s prior written consent, which consent shall not be unreasonably withheld.
13. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties in relation to its subject matter and supersedes all previous contracts, promises, representations, warranties or arrangements between the parties whether written or oral. This Agreement in no way affects or varies any other agreements or contracts that you may have with Intelligent Mobile.
14. THIRD PARTY RIGHTS
The provisions of this Agreement are for the benefit of the parties and are also intended to be for the benefit of each Network Operator and/or Regulatory Body who currently is, or is subsequently relevant to this Agreement. Save as provided in this Clause, this Agreement is not intended to confer upon any person except the parties any rights or remedies hereunder. No person other than a Network Operator or Regulatory Body described above who is not a party to this Agreement shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of the other provisions of this Agreement intact.
16 INTERPRETATION AND CONSTRUCTION
In this Agreement unless the context otherwise requires (a) words importing the singular include the plural and vice versa, (b) a reference to a law includes a reference to that law as amended, consolidated or replaced, (c) headings are for convenience only and do not affect the interpretation of this Agreement, (d) this Agreement may not be construed adversely to a party solely because that party prepared it and (e) unless the context otherwise so requires references to the Client and Intelligent Mobile include their permitted successors and assigns.
17. GOVERNING LAW
The governing law of this Agreement shall be English Law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.
INTELLIGENT MOBILE LIMITED DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL INTELLIGENT MOBILE 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 INTELLIGENT MOBILE LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS.
If you have any questions regarding these Terms of Service please contact us:
Intelligent Mobile Limited,
9-10 St Andrew Square,
Edinburgh EH2 2AF
T: +44 (0)131 555 1384
T: +44 (0)870 760 7030
If you have any support questions please contact us:
T: +44 (0)870 760 7030
T: +44 (0)131 555 1384
If you have any questions regarding these or earlier Terms of Service please contact us: email@example.com
Date: 30 April 2018
Version number: 3.0
© Intelligent Mobile Limited 2018