Standard Terms and Conditions
1 Definitions
In this Agreement the following definitions apply:
"Agreement" means an agreement for Services to which these Terms and Conditions are a Schedule together with all other applicable Schedules.
"Background Rights" means any and all Intellectual Property Rights which were created or used by the named party prior to the Commencement Date or which are created independently of the delivery or the receipt of the Services.
“Client Content” means any information provided by Client for onward transmission or interactive processing by Company as part of the Services; or information entered in the body of an interaction by Client’s customers and the associated mobile phone number or email address as part of the Services.
“Client Customer Data” means certain data held by Client concerning its customers including mobile telephone numbers to which Client owns the Client Background Rights.
"Client Foreground Rights" means any and all Intellectual Property Rights which derive after the Commencement Date from Client’s own business processes or from its computer hardware, software or systems.
“Company” means mkodo limited
“Company Data” means certain data that will arise in the course of the Company’s provision of the Services of which Company will own the Company Foreground Rights. This includes prefix and service centre identifier information.
"Company Foreground Rights" means any and all Intellectual Property Rights that arise or are created in the course of the provision of the Services, save for Client Foreground Rights.
“End User” / “User”: Anyone trying to access a Client’s services issued through Company Platform, software or the Services.
"Intellectual Property Rights" means all intellectual and industrial property rights anywhere in the world including, without limitation, any invention, patent, design or utility model rights, any copyrights and trademarks, service marks, database rights, domain names, commercial or confidential information, know-how or trade secrets, and any other rights of a similar nature or effect whether or not any of the same are registered, and the rights to apply for any of them.
“Platform” means the software platform provided by Company for enablement of the Services.
“Module(s)” means the packages of capabilities available for purchase on the Platform.
"Services" means the consultancy or managed or other services of Company agreed to be provided to Client in the Agreement in accordance with the terms of the Agreement.
“Subscriber” means a person who is connected to a network carrier.
"Term" means the period referred to in the Services Order form.
“Territory” means the United Kingdom or Territories specifically detailed in the Services Order form.
2 The Services
1. Company will provide the Services as described on signed Services Order Forms in the Territory, in accordance with this Agreement until the purchased Module(s) or other Services expire or are consumed or this Agreement is otherwise terminated in accordance with its provisions.
2. Unless otherwise stated on the Services Order Forms, Company sells the right to use application Modules for a given number of interactions in the given time period. The module price includes the right to use the Platform for the described services, standard support and reporting.
3. An interaction is a one way communication with the Company Platform, whether inbound or outbound. A ‘communication’ includes, but is not limited to, an email, mobile message, call to or from an external system.
4. Company will provide these Services, and subsequent Services signed and appended to this Agreement, on receipt of a signed Services Order Form with appropriate payment until the packaged interactions purchased have been consumed or have expired or the Services have otherwise come to completion as defined on the Services Order Form.
5. Company will use best endeavours to provide a 24x7 service subject to the following conditions:
• Company has the right from time to time to deactivate the Services in accordance with this clause 5 for maintenance reasons and in order to implement changes and upgrades.
• In the case of planned maintenance Company shall provide 3 working days advance notice to Client.
• In the case of emergency and un-planned maintenance, Company shall provide as much advance notice to Client as is reasonably possible and use reasonable efforts to schedule work so as to minimise the impact on the Client’s business.
• Client recognises that the provision of the Services is subject to the ongoing provision of services from the network carriers under the expected commercial and service level terms. Company cannot be held responsible for the impact of sudden changes or removal of service imposed by the network carriers but will take all reasonable endeavours to lessen any negative impact to Client. Client understands and agrees that, with respect to the Services a) one hundred percent of the messages may not be received or delivered, b) neither Company nor any network carrier will be liable to Client for any messages deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, message processing or transmission errors. Neither Company nor any carriers make any warranties regarding the quality, reliability, timeliness, or security of the service or that the service will be error-free, uninterrupted, free from unauthorized access or that all message will be delivered.
6. On acceptance of the Client’s order the Company may endeavour to select and use only third party suppliers in connection to the provision of such services whom we reasonably consider capable and competent and who will respect each Parties and End Users confidential and sensitive data. However, the Company will not accept any liability nor give any warranty as to the availability or provision of such connected services and will not be held accountable for such liability in action whether it brought in tort or contract.
7. The Company may from time to time improve or alter the Services as it deems appropriate but shall not do so without Client consent unless such changes do not substantially affect the nature of the Services or where such changes are necessary to comply with any applicable Laws and Codes of Practice.
3 Pricing and Payment Terms
1. The Services shall be provided at the agreed price set out in the Services Order Form.
2. Client shall pay Company as follows:-
Company will submit invoices in GB Pounds
Client will settle the invoices by electronic transfer to the bank account detailed in the Company invoices.
Client is responsible for any additional charges made by their bank or other parties for processing payment to Company.
Unless otherwise agreed and set out in the Services Order Form, Client shall make payment of each invoice prior to account activation/service provision or continuation of account activity/service provision or within thirty (30) days from the date thereof or, whichever date is the earliest.
3. Company reserves the right to charge interest and debt collection charges on outstanding balances at 4% above the Bank of England Base Rate.
4. Company reserves the right to introduce new or varied charges on 30 days written notice. Client is entitled to cancel the service should the proposed terms be unacceptable and the charges increase by 10% or higher in any one year period, provided that notice to cancel is given within two weeks of the increase.
4 Client Commitments
You acknowledge and agree that, in the provision of the Services, the Company is providing a mechanism for you to operate the End User Services and that the Company is not in any way authorising, advising upon, endorsing or otherwise approving your End User Services. Accordingly you acknowledge that you will remain responsible for the End User Services and agree that the following conditions and limitations of the Company’s liability are fair and reasonable in the circumstances.
1. Client undertakes the following:
• to attempt to attach only to the nominated network addresses notified to them by Company in relation to the Services; • to take responsibility for keeping access to the Services secure and for the sole use by Client and, where applicable, its clients. • to nominate an account manager and secondary contact to act as a Co-ordinator for use of the Services provided by Company under this Agreement; • to ensure that the Co-ordinators and other Client team members follow the support and administration procedures notified to them by Company from time to time; • to accept responsibility for charges arising from all attempted receipt or distribution of interactions, for avoidance of doubt, this includes but is not limited to, attempted broadcast of messages that are invalid, that are sent repeatedly to the same number, that are sent to phones which are switched off, out of network coverage, barred, or are partially or completely unable to accept messages, or are sent for delivery to invalid mobile phone numbers/email addresses; • to use the Services for its proper and lawful purpose only and in accordance with such reasonable instructions as Company may from time to time notify to Client. • to take sole responsibility that the use and all publicity of the Services for its business purposes and all promotional material issued on behalf of the Client and the Service comply with all relevant regulations, Laws and Codes of Practice. • that in any publicity or other promotional activity the Client shall not state or imply any approval by any of the Networks or by the Company (or any associated company of the Networks or the Company) of any Content nor refer to the Networks or the Company without the express written approval of a duly authorised officer of the Networks or the Company, as appropriate. • that, notwithstanding the foregoing, the Client shall submit to the Company for prior consideration all proposals for publicity for the End User Services utilising the Services and any associated services from time to time. In particular, the Client shall give the Company seven working days’ notice in writing before advertising on any media (including television, radio, the Internet, etc) any services associated with the use of the Services. The Client will not commit to going and will not go live before the Company has agreed the promotion in writing. Any such agreement shall only amount to confirmation that the Company is prepared to provide the Services in relation to that promotion on these Terms and Conditions and shall not amount to any form of guarantee, warranty or other assurance that such material complies with applicable Laws and Codes of Practice or these Terms and Conditions, which shall remain the sole and irrevocable responsibility of the Client. • to ensure that before any Content is made available by the Client all such rights, authorisations, licences, consents and permissions have been obtained or granted and all such requirements of Law and Codes of Practice or of any regulatory body or any other requirements of any competent authority or public body have been complied with as may be necessary and sufficient to enable the Company to provide End User access to the End User Services. The Company shall have no obligation whether under these Terms and Conditions or otherwise to make available to the Client any equipment, facilities or Services until such time as the Client has complied with all of its obligations under this Clause to the satisfaction of the Company. • to be liable for and to indemnify the Company from and against any damage, including indirect or consequential damage, for inadequate End User protection (including but not limited to spam, phishing, and fraud) and legal violations that result from the End User Service, the Client’s improper use of the Services, the Client’s instructions, or other fault of the Client or its agents or contractors. • to provide Company with forecasts for service activity as required from time to time by the network carriers.
2. Without limitation, Client undertakes not to use the Services nor permit the Services to be used for:
• Sending or making available to the public any communication which is harassing, defamatory, libellous, abusive, threatening, obscene, coercive or objectionable, including material that is false, misleading or inaccurate; or • the persistent sending of messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person; or • the transmission or dissemination of material that violates the rights of any person or company protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations; or • the distribution of material to prefixes from countries where the material is considered to be prohibited or offensive; or • the transmission or dissemination of unsolicited material, including without limitation "junk mail" or "unsolicited bulk e-mail", or other advertising material to persons or entities that have not specifically agreed to receive Content from the Client; or • sending messages or making available to the public any content that contravenes relevant privacy and electronic communication regulations; for avoidance of doubt this includes the Best Practices Guidelines of the Mobile Marketing Association. • The Client shall not provide Content that is likely to bring the Networks (at their sole discretion) or the Company (at its reasonable discretion) into disrepute. • sending or procure the sending of any communication to any End User on any SMS/MMS network or chargeable internet service where six months have elapsed since such End User last requested a billable End User Service and the End User has not expressly requested that communication. • the introduction of malicious programs into Subscribers’ equipment or the Services or the carriers’ networks including viruses, worms, Trojan horses, e-mail bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept data which is not expressly approved for use; or • sending inappropriate content to minors or making inappropriate content available to minors.
Without prejudice to the Company’s rights under these Terms and Conditions the parties hereby expressly agree that any breach of the provisions of this Clause 4 shall entitle the Company to suspend Client and/or End User access to the Services and/or to cease to provide the Services in whole or in part at any time and without notice and the Company reserves the right to regard any breach of the provisions of this Clause 4 as a material breach of these Terms and Conditions for this purpose hereof.
The Client shall be liable to pay the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including direct, indirect or consequential losses, loss of profit and loss of reputation and those arising from injury to death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement, subject to the Company confirming such costs, charges and losses to the Client in writing.
5 Confidentiality
For the purpose of this Agreement, “Confidential Information” shall mean all inventions, drawings, software, data, specifications, processes, testing procedures, customer information and all other technical, business and other information and material relating or belonging to either of the parties or their customers which is or has been disclosed by one party to the other either directly or indirectly, including, but not limited to, the following:
• information relating to either party’s planned or existing computer systems and systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods;
• policyholder data, customer lists, sales, profits, customer data and information, organisational restructuring, new business initiatives and financial information;
• information that describes either party’s products, including actuarial calculations, product designs and how such products are administered and managed;
• information that describes either party’s product strategies, tax interpretations, tax positions and treatment of any item; and
• confidential information of third parties with which either party conducts business.
Confidential Information shall not include:
• information which was in the public domain at the time of disclosure;
• information which, though originally Confidential Information, subsequently falls into the public domain through no fault of the party or its employees receiving the Confidential Information, as of the date of its so falling;
• information independently created by the other party (subject to reasonable evidence of that independent creation);
• information received by one party from a third party without any breach of any obligation of confidentiality owed to the other party;
• information disclosed pursuant to a requirement of law, to the extent so required.
The parties hereby agree, other than as permitted by this Agreement, to keep the Confidential Information in complete confidence and not to disclose the same to any third parties (except as set forth below), nor use it for any purposes other than for the performance of their respective duties under this Agreement (the “Specific Purposes”).
Either party may disclose the Confidential Information to its employees and to its sub contractors and agents permitted under this Agreement but only to the extent reasonably necessary for the Specific Purposes and subject to the recipient being subject to obligations of confidentiality relating to that Confidential Information no less stringent than the requirements of this Clause 5.
The provisions of this Clause 5 shall continue in full force and effect, notwithstanding the termination of this Agreement for any reason whatsoever, for a period of three (3) years from the date of disclosure.
Nothing in this Clause 5 shall be deemed or construed to prevent either party from disclosing the Confidential Information to any of its professional advisers, auditors, regulators and insurers provided that such disclosure is only to the extent absolutely necessary in connection with this Agreement. The disclosing party shall take all reasonable steps to ensure that the Confidential Information is treated as confidential by such professional advisers, regulators and insurers and their employees or agents.
6 Client’s Facilities
To the extent required by Company, Client shall make available to Company certain of its facilities including but not limited to remote access connections, computer resources, software programs, personnel, and business information as are required to perform the Services.
Company agrees to comply at all times with Client’s rules and regulations regarding safety, security, and conduct, which shall have been drawn to the attention of Company.
7 Warranties
Each of the parties warrants and represents to the other that it has the right and power to enter into the Agreement and that anything it does or makes available to the other pursuant to this Agreement shall not be in breach of the Intellectual Property Rights of a third party.
THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE. CLIENT ACKNOWLEDGES THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS, OR SECURITY OF THE SERVICES AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), OR THAT ALL MESSAGES WILL BE DELIVERED. SERVICES ARE PROVIDED TO CLIENT ‘AS IS.’ IN ADDITION, NEITHER COMPANY NOR CLIENT AUTHORIZES ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF, AND NEITHER PARTY NOR THAT PARTY’S CLIENTS OR SUBSCRIBERS SHOULD RELY ON ANYONE MAKING SUCH STATEMENTS.
8 Liability
1. Each party shall be liable as expressly provided in the Agreement, but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise.
2. Nothing in the Agreement shall exclude or restrict Company’s or Client’s liability for death or personal injury resulting from its negligence.
3. Subject always to point 4 below, Company’s and Client’s liability for direct loss or damage whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise arising out of or in connection with the performance or non-performance of its obligations under the Agreement and whether caused by its act or omission or that of its employees, agents or subcontractors, shall be limited to the aggregate in any calendar year of the charges paid by Client to Company under the Agreement or UK £1,000,000 (inclusive of costs and fees) whichever is the smaller.
4. Neither party shall be liable in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:
• for any loss of revenue, business, anticipated savings or profits, • for any indirect or consequential loss howsoever caused or arising 5. Except as expressly stated elsewhere in the Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, collaterally or otherwise) are hereby excluded save in the case of wilful default or fraud.
6. Neither party will be under any liability in the event that it is unable to perform any obligation under the Agreement because of any factor outside its control including but not limited to Act of God, inclement weather, flood or escape of water, lightning or fire, terrorist activity, industrial action or lockouts, default or failure of a third party, the act or omission of Government, any Regulatory body or other competent authority, war, military operations, riot, or congestion or non-operation of one or several or the carrier networks or aggregator or other action taken by one or several of the network carriers or aggregator, whether service provision or commercially based, that is beyond the control of the parties and that renders the provision of the Services non viable.
7. Company will not be liable for any loss which results from the Client using the Services incorrectly or running activities without first testing that the services work as desired.
8. The provisions of this Clause 8, Liabiity, shall survive the termination or expiry of the Agreement.
9. If Company shall fail to meet any service level specified in the service description, Company shall pay or credit such liquidated damages, as a genuine pre-estimate of Client’s damages and not as a penalty, for any loss or damage sustained by Company resulting from such failure to meet such service level. This is provided that the failure is notified formally to Company within 30 days of occurrence. Such a payment or credit shall be in full and final settlement of all the Company's liability to Client in respect of such failure, but without prejudice to the Company's other liabilities and obligations under this Agreement. The maximum value of payment or credit that may be awarded to Client under this Agreement shall be equivalent to 100% of total sums paid for that specific Module in that specific purchase order or Services Order Form pro rata to the time period in which the failure took place.
10. Without limitation to the foregoing, the Company will not be liable to the Client or any of its customers or End-Users for any claims or damages which may be suffered by it or them, including, but not limited to, indirect or consequential loss or damage or other losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client’s Website (including as a result of hacker activity failure to keep passwords secret password trading or malicious code), inability to access the Internet, or inability to transmit or receive information, where any such matter is caused by, or results from, delays, non-delivery, or service interruptions caused by reasons beyond the Company’s reasonable control or not forming part of the Services.
11. Without limitation to the foregoing, and due to the complexity, variability and number of intermediaries/third parties involved with the provision of our Services, Internet connection, the development and speed of development, along with the spread of malicious code over the Internet, he Company cannot give any guarantees as to the provision or constant provision of services, services being available by any particular time, or integrity of data stored or transmitted via our system or the Internet. The Company will use all reasonable efforts to ensure that its systems are secured from any and all unauthorised access or the effects of any malicious code, but will not be held liable for any or all inadvertent disclosure of, corruption or erasure of any or all data transmitted, received or stored on its systems despite their efforts
9 Indemnification
1. The Client agrees that it is solely responsible for its End-User Services, any associated website and all website Content, for its advertising and promotion, and that of anyone referring others to the Client’s End-User Services. The Client is also responsible for ensuring that it is the rightful owner or licensee for any copyrighted material, trademarks, or other such intellectual property items that appear on its website or offline material. The Client will take all necessary measures to preclude the Company from being made a party to any lawsuit or claim regarding any Content or other materials provided by the Client or any one else on behalf of the Client and hereby agrees to indemnify the Company and hold it harmless from any and all claims of whatever nature brought by anyone against it in respect of any breach of this provision by the Client.
2. The Client shall indemnify and keep fully and effectively indemnified the Company and all members, officers, servants and agents of the Company against all liabilities (including professional fees, reasonable administration and management costs and all other damages, expenses and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever arising directly or indirectly out of or in consequence of the use by the Client of the Services and/or the access or use by any End User of the associated Services of the Client (other than in respect of any errors in or omissions from any lawful use of the Services caused by a fault in the Services or act or omission of the Company or its contractors or agents). The Company shall, as soon as reasonably possible, give notice to the Client of any such liability, action, proceedings, claims or demands
3. The Client hereby agrees to reimburse the Company for any and all costs, damages and expenses associated with it being involved with any civil, criminal, regulatory or investigatory actions brought against it (other than for its breach of contract, negligence, or tortuous acts in respect of which judgment is obtained against it) in relation to any acts or omissions carried out in accordance with the Client’s instructions or authorized by the Client. The Client agrees that the Company may deduct some or all of those costs damages and expenses from monies otherwise due to or held on account from the Client.
10 Force Majeure
1. Neither the Client nor the Company shall be liable in respect of any breach of the Agreement due to any cause beyond its reasonable control including but not limited to an Act of God, inclement weather, flood or escape of water, lightning or fire, industrial action, lockouts, an act or omission of Government, any regulatory body or other competent authority, war, military operations, terrorism, riot, or any congestion or non-operation of the Networks and the public networks or any of them, or interruption or failure of any utility service, including but not limited to electric power, gas or water.
2. The Client agrees that its inability to use any of the Services by reason of failure of equipment or services not provided by the Company shall not relieve it from its obligation to make payment of the Company’s charges
11 Intellectual Property Rights
1. Ownership of all Company Background Rights and Company Foreground Rights shall vest in and remain with Company, whereas all Client Background Rights and Client Foreground Rights shall vest in and remain with Client.
2. Company shall license to Client the Company Foreground Rights and such parts of the Company Background Rights as are directly and unavoidably required by Client in the provision of the Services on the basis set out in this Clause 11.
3. Client shall license to Company the Client Foreground Rights and such parts of the Client Background Rights as are directly and unavoidably required by the Company in the provision of the Services on the basis set out in this Clause 11.
4. Any licence granted under this Clause 11 shall not be transferred nor sub-licensed, shall be non-exclusive, royalty free, limited to the Term and granted only for the purpose of fulfilling the licensee’s obligations under this Agreement.
5. Client shall not reverse engineer, decompile or disassemble any software comprised in the Company’s Background Rights or Foreground Rights.
12 Data Rights
Ownership of all Company Data shall vest in and remain with Company, whereas Client Content and Client Customer Data shall vest in and remain with Client.
13 Assignability
This Agreement is personal to the parties and shall not be assigned or otherwise transferred in whole or in part by either party without the prior written consent of the other party.
Each party (“non-assignor”) acknowledges, however, that the other party (“assignor”) shall be entitled, by notice in writing to the non-assignor, to assign any or all of its rights and obligations under these Terms and Conditions to another entity: (a) within its group of companies as part of a bona fide reconstruction of that group; or (b) which acquires all or substantially all of the assignor’s assets entailed in the performance of the Services, for which assignments, non-assignor hereby provides its irrevocable consent.
14 Intellectual Property Rights Indemnity
Company will indemnify Client and keep Client fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of all or any part of the Company Background Rights, the Company Foreground Rights or methods of provision of the Services and any third party material, information and Intellectual Property Rights which are provided by Company to Client that infringes the copyright or other Intellectual Property Rights of any third party, subject to the terms of this Clause 14.
Client will indemnify Company and keep Company fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of all or any part of the Client Content, Client Background Rights, the Client Foreground Rights and any third party material, information and Intellectual Property Rights which are provided by Client to Company that infringes the copyright or other Intellectual Property Rights of any third party, subject to the terms of this Clause 14.
The following provisions shall apply to the indemnities referred to in this Clause 14 when one party ("the Indemnified Party") wishes to enforce its rights against the other ("the Indemnifying Party"):
• The Indemnified Party shall promptly notify the Indemnifying Party in writing of any allegations of infringement of which it has notice and will not make any admission without the Indemnifying Party's prior written consent.
• The Indemnified Party, at the Indemnifying Party's request and expense, shall allow the Indemnifying Party, to conduct and/or settle any negotiations or litigation resulting from any such claim.
• The Indemnified Party shall, at the request and cost of the Indemnifying Party, afford all reasonable assistance with such negotiations or litigation.
In the event that the use or possession of all or any part of the Company Background Rights, the Company Foreground Rights or methods of provision of the Services and any third party material, information and Intellectual Property Rights which are provided by Company to Client infringes the copyright or other Intellectual Property Rights of any third party, Company, at no additional cost to Client, shall use all reasonable endeavours to:
• obtain for Client the right to continue to use the infringing material; and/or
• modify the infringing material so as to render it non-infringing; and/or
• replace the infringing material or infringing part thereof with a non-infringing alternative so as to ensure that the Services shall continue to be provided with the same functionality.
15 Suspension and Termination
• Company may suspend provision of the Services immediately in the event that it is obliged to comply with an order, instruction or request of the network operators, government or other competent authority.
The Agreement may be terminated prior to expiration or completion in accordance with the following:
• By either party in the event the other has failed to perform any material obligation required to be performed under the Agreement and such failure is not corrected with thirty (30) days from receipt of written notice advising of such failure from the other party, which notice shall make reference to this clause. For the avoidance of doubt three breaches in one month or a series of 3 of the same breaches in any twelve months shall be deemed to be a material breach of the Agreement; or
• By Company immediately in the event that Client uses the Services for the transmission of obscene, libellous, offensive Content or for any illegal purposes; or
• By Company immediately if the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its invoices and debts as they fall due,
• This Agreement shall terminate immediately if either party (being a company) presents a petition or has a petition presented by a creditor for its winding up, convenes a meeting to pass a resolution for voluntary winding up or enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or (if a non UK national or corporation) shall suffer anything analogous to these matters to occur to him or it.
Upon termination or expiration of the Agreement each party shall deliver to the other all copies of all applicable Confidential Information of the other party within fourteen (14) days of such termination expiration or (at the option of the owner of the Confidential Information) a statement confirming that such copies have been destroyed.
16 Data Protection
Each party, in carrying out obligations under and in preparation for this Agreement, shall, and shall procure that its relevant affiliates shall, comply strictly with all requirements of any applicable data protection legislation.
Client acknowledges that the Client Customer Data which shall be made available to the Company pursuant to this Agreement shall not amount to personal data and that, if any other data is made available which amounts to personal data, in respect thereof Client shall be the data controller and the Company the data processor.
Company warrants that the Company Data which shall be made available to Client pursuant to this Agreement shall not amount to personal data and that, if any other data is made available which amounts to personal data, in respect thereof the Company shall be the data controller and Client the data processor.
Insofar as either Company or Client may act as data processor in respect of any data of which the other party is data controller it shall:
• take appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
• process personal data under this Agreement only in accordance with the other’s explicit instructions.
The Client must not reveal its Company account password(s) to anyone except its authorised employees as required for the purposes of receiving the Services, nor may it use anyone else’s password to access any of the Company’s systems or Services. The Company is not responsible for losses incurred by the Client including, without limitation, the use of its account by any person other than the Client or its authorised employees, arising as the result of misuse of or poor security in respect of its passwords.
17 Contract Management
Each party shall appoint a representative who shall be responsible for co-ordinating that party’s performance under this Agreement (a “Contract Manager”). Each party’s Contract Manager shall be the other party’s first point of contact in relation to matters affecting or connected with the performance of this Agreement.
Either party may on reasonable notice to the other at any time require a contract meeting to be held if an event, act or omission has occurred which that party reasonably believes affects the provision of the Services or the performance of the Agreement.
18 Dispute Resolution Procedure
Any dispute that arises between the parties as to this Agreement or the performance of the parties’ respective obligations under this Agreement, shall first be discussed, and if possible resolved, by the Contract Managers.
If the Contract Managers fail to resolve the dispute then either party, by notice in writing to the other, may refer the dispute to senior officers of the two parties who shall co-operate in good faith to resolve the dispute as amicably as possible within 14 days of service of such notice. If the senior officers fail to resolve the dispute in the allotted time, then the parties shall, within that period, on the written request of either party enter into an alternative Dispute Resolution Procedure with the assistance of a mediator agreed by the parties or, in default of such agreement within 7 days of receipt of such request, appointed, at the request of either party, by the Centre for Dispute Resolution (“CEDR”) or such other similar body as is agreed.
The parties shall then submit to the supervision of the mediation by the CEDR or similar body for the exchange of relevant information and for setting the date for negotiations to begin.
Recourse to this Dispute Resolution Procedure shall be binding on the parties as to submission to the mediation but not as to its outcome. Accordingly all negotiations connected with the dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings. Except for each party’s right to seek interim relief in the courts, neither party may commence legal proceedings under the jurisdiction of the courts until 7 days after either party has given notice to the other of its refusal to continue such mediation (at which point the Dispute Resolution Procedure shall be deemed to be exhausted).
If, with the assistance of the mediator, the parties reach a settlement, such settlement shall be reduced to writing and, once signed by the duly authorised representative of each of the parties, shall remain binding on the parties.
The parties shall bear their own legal costs of this Dispute Resolution procedure, but the costs and expenses of the mediator and CEDR or similar body shall be borne by the parties equally.
The applicable law of the arbitration shall be English law and the place and language of the arbitration shall be in England and English respectively
17 General
This Agreement and the documents referred to in it constitute the entire agreement and understanding of the parties and supersede any prior discussions, writings, and negotiations with respect thereto.
Neither party shall have any liability or remedy in contract, tort or otherwise in respect of any representation, warranty or other statement (save as expressly stated in the Agreement) being false, inaccurate and/or incomplete unless it was made fraudulently or through wilful default.
This Agreement shall not be amended unless in writing signed by an authorised signatory of both parties.
No waiver of any provision of this Agreement by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of this Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
The Agreement shall be governed by the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales for the resolution of any dispute which may arise in connection herewith. Any proceeding arising from any such dispute will be held within the jurisdiction of England and Wales.
Any notice to be served on one party by the other under this Agreement will be in writing and delivered by hand or sent by fax or e-mail (with a hard copy sent immediately thereafter by prepaid first class post) or by prepaid first class post to the address for such party set out in the Services Order Form for the Client and as below for the Company or to such other address as such Party has for the time being notified (in accordance with this Clause 17) to the party giving the notice.
Company: Managing Director, mkodo limited 73 Leonard Street, London, EC2A 4QS
Notices will be deemed to have been delivered when received during the hours of 9am 5pm on any Business Day (Monday to Friday excluding UK bank holidays) in the place of receipt. Where the day in the place of receipt is not a Business Day, notice will be deemed to have been delivered at 9am on the next Business Day in the place of receipt.
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion.
Company and Client are independent contractors under this Agreement, and nothing herein may be construed to create a partnership, joint venture, franchise or agency relationship between them. Neither party has any authority to enter into agreements of any kind on behalf of the other party. Each party has independently investigated the business outlined in this Agreement and the profitability (if any) and risks, and is not relying on any representation, guarantee, or statement of the other party other than as set forth in this Agreement.
This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. To expedite the process of entering into this Agreement, the parties acknowledge that Transmitted Copies of the Agreement will be equivalent to original documents until such time as original documents are completely executed and delivered. “Transmitted Copies” will mean copies that are reproduced or transmitted via photocopy, facsimile, email or other process of complete and accurate reproduction and transmission.
Each Party shall in full cover its own costs relating to the entering into of this Agreement and its performance of all of the obligations contemplated hereunder.
Schedule 1: Service Levels
1. Standard Interaction Throughput
The nominal throughput will be 10 interactions per second MT and 30 interactions per second MO. This is the time taken to process interactions within the Platform.
2. Service Availability
The Company will provide a 99.8% service up-time.
“Service Availability” shall be defined as:
• the availability of the user interface and • the capability to send and receive interactions.
Service Level Conditions
1. Service level conformance is based on average metrics over a rolling 30-day period, with no more than 2 exceptions permitted under any service level category in any consecutive 3 months.
2. Breakdowns or long routing latencies in the internet path from Client to Company shall not be considered as a loss of Service Availability if outside the reasonable control of Company, providing the Company service remains accessible to the internet.
3. Planned downtimes notified and agreed verbally or in writing with Client will not be considered as a loss of Service Availability.
Support Level
The Module price includes the following support level:
• Business critical service issues (service issues causing direct impact on Client’s customer or revenue): Company shall ensure that a Client Project Manager can reach a Company employee who is capable of servicing any critical issues by telephone 24x7. These issues will be designated a ‘Priority 0’ (‘P0’).
• Non-critical support issues:
Priority 1 (‘P1’)
The client experiences a severe loss of service. No acceptable workaround is available; however, operation can continue in a restricted fashion.
The client can expect a one hour response within Business Hours and a qualified response with fix or intermediate resolution within four Business Hours. P1 issues will, however, be queued behind P0 issues
Route to support: Support telephone number and email.
Priority 2 (‘P2’)
The client experiences a minor loss of service. The impact is an inconvenience, which may require a workaround to restore functionality.
The client can expect a two hour response within Business Hours and a qualified response with fix or intermediate resolution with 24 Business Hours. P2 issues will, however, be queued behind P1 issues
Route to support: email only.
Priority 3 (‘P3’)
The client experiences no loss of service. The result does not impede the operation of a system.
The client can expect a four-hour response within Business Hours and a qualified response with fix or intermediate resolution with 48 Business Hours. P3 issues will, however, be queued behind P2 issues. P3 issues maybe re-categorized as a functional enhancement request.
Route to support: email only; limited to 10 queries per month
Non-critical support queries will be responded to related to their defined priority level. Company reserves the right to re-assign the Priority ranking of a support call after investigation and communication with the client
• ‘Business Hours’ of cover: 9.00am to 5.30pm UK Monday to Friday (excluding Bank Holidays).
The email support is support@mkodo.com The support telephone number is +44 (0) 207 503 4299
Schedule 2: Premium Rate Services
When the Client uses a Premium Rate route in connection with the Services the following additional terms and conditions apply:
• The Client shall ensure that, before any customer requests or sends a premium rate message or makes a premium rate call that the customer is provided with:
o The identity of the Client as the provider of the text messaging or premium call service (details to include a contact address for the Client in the UK)
o An adequate description of the services or activity to be provided by the Client to the customer
o Sufficient information to make the customer aware of a) the cost of the messages (both sent and received) or calls b) the frequency and number of the messages that will be received in response to a request for multiple messages (unless the number of messages is indefinite in which case this fact should be made clear) and c) the customer’s rights to cancel and request for multiple messages.
o Information sufficient to make customers aware of the arrangements for payment for receipt or sending of messages (i.e. that the charge will be made via the customer’s mobile phone bill, or deducted from the customers mobile phone credit, as appropriate) or the making of calls.
o Sufficient information to make customers aware of contact details for customer care run by the Client and, that if they have a complaint related to the service or activity provided by the Client (i.e. not relating to the operation of the network), they should contact the Client and not mkodo nor the operator. The network operators reserve the right to charge for calls made to its call centre in relation to a particular service; in such a case, mkodo will on-pass this charge to the Client.
• The Client shall be responsible for ensuring that adequate support (for instance, the provision of a telephone support help line relevant to the premium rate service to be operational during business hours) is provided for all customers in relation to the service and shall be required to inform customers of any related routes of contact in relation to the service.
• Premium rate messages shall only be sent to those mobile phones a) from which a mobile message has been received containing a recognised service request to the Client’s specific service or b) which have been specifically validated through a process that involves that specific mobile phone as having requested the service.
• The Client accepts all responsibility and liability for any payments made to any customers to reimburse them for premium rate message charges that a) were not solicited in a method described above or b) were sent after a customer exercised the right to cancel the service.
• Where the network operator makes a refund to the customer for messages sent to or from the customer or calls made in relation to the Client service or activity and obliges Company to make a refund to the operator in respect of the Client service or activity, the Client shall reimburse Company for all such monies. The Company shall be entitled to deduct any such reimbursements from monies payable by mkodo to the Client.
• Premium rate messages should not use any implied personal message encouraging the recipient to reply by premium-SMS or by premium rate telephone number. Examples of implied personal messages may include “I fancy you”, “I miss you”, “I'm lonely do you want to chat?” “where are you?”
• The Client shall ensure that the customer has, and is aware of, the right and capability to cancel any multiple requests with immediate effect and that the cancellation capability is in the same format as the customer made the original request for the service; any cancellation communication (including but not limited to SMS) sent by the Client to the customer shall be free of charge to the customer.
• The Client cannot use the trademarks, logos or otherwise reference the network operators in the promotion of their service or activity (unless they have a separate agreement from the network operators that overrides this point). The name of the operators upon which the service or activity runs can be mentioned for instruction purposes.
• The Client has the right to determine the nature of the content delivered via its service, and is solely responsible for its content. Client is solely responsible for ensuring that the service it provides conforms to any applicable laws, regulations and codes of conduct and all laws (including but not limited to the Consumer Protection (Distance Selling) Regulations 2000 (S.I. No. 2334)) in the territories in which the service is available.
• The Client shall provide, from time to time, such assistance and information as mkodo may reasonably require in order to comply with the regulatory body requests and conditions, and with the conditions of this Agreement. The Client acknowledges that mkodo will comply with direct instructions given to it by regulatory authorities including, but not limited to, suspension of service and withholding of outpayments to the Client
• The Client shall submit for prior approval, from time to time, proposals for publicity of the relevant Client services or activity as required from mkodo by the network operators. In particular, the Client shall give ten days notice in writing before advertising on television any services or activity associated with the sending of messages.
• The total amount billable to a customer by the Client for use of their message services or activities shall not exceed £15 (inc VAT) on any one day.
• IVR services: The Client is solely responsible for all usage fees accrued by the DDI allocated to each of the Customer Services. As such it is strongly recommended that the Customer do not reveal to any third parties their DDI number.
• mkodo will receive outpayments from the network operators in respect of the billable messages sent or received or calls made as part of the Client service or activities. These outpayments as agreed with Client and appended to this Agreement, will be passed back to the Client within 14 working days of receipt by mkodo. mkodo will endeavour to pay the Client the outpayments by the end of the calendar month following the month following the calendar month during which the call traffic was generated or the premium rate message transactions took place. mkodo is not obliged to make any payment unless it has received monies from the operator. The Client acknowledges that the network operators are unable to always bill their subscribers 100% of the time for receipt of each premium rate message or for premium rate calls. Consequently revenue out-payments often fall below their expected levels. For shared short-code services, outpayments from the operators will be pro-rated across all users of the short-code based on message volumes, in order to calculate the sum due to the Client.
• In cases where a mobile user texts in to the Client’s service in error, this interaction will be treated as any other interaction to the service by mkodo from both a technical and commercial perspective.
• When a dedicated short code is used, there is a minimum contractual duration of 12 months per tariff used (‘Initial Term’). The term will continue for successive 12 month periods (each a ‘Renewal Period’) unless terminated by either party giving the other no less that ninety (90) days written notice to expire at the end of the Initial Term or the then current Renewal Period. When a keyword on a shared short code is used, there is a minimum contractual duration of 1 month per tariff used. Short codes remain the property of the network operators and are supplied solely at the network operators’ discretion; no rights accrue to the Client as the result of any usage of the short code under this Agreement. The Client does not have infinite use of the short code(s). The Client will receive a minimum 21 days notice prior to withdrawal of a short code, where such notice is provided by the network operator. The network operators may introduce traffic restrictions on short codes usage. The Client must comply with all operator requirements for use of short codes, as advised by mkodo from time to time.
• Payment for dedicated short codes is required in advance on at least a quarterly basis. Payment for shared short codes is required in advance on at least a monthly basis.
• When a binary message is distributed for premium rate billing, a separate Interaction is required (and charged) to send the billable event to the phone.
• In cases where mkodo agrees to waive the module fees in exchange for a revenue share agreed with the Client and reflected in the revenue share outpayments detailed in the Schedule to be attached to this agreement, only one inbound and one outbound (if MT billed premium rate) interaction can be included in each ‘conversation’ with the end customer unless otherwise stated in the Services Order Form.
• If the revenue share model is selected over the module then this arrangement will remain in place for a minimum of 6 months from the first premium rate campaign before a switch to the module can be considered.
• The Client shall effect and maintain suitable legal liability insurance of not less than £1million (one million pounds) for each and every claim arising in connection with the performance of its obligations under this Agreement, and shall produce to Company, on demand, a copy of the policy of insurance together with receipt for the current premium.
• Any breach of the clauses under these terms and conditions by the Client will entitle mkodo to suspend all Services run by the Client under this Agreement immediately, and to keep them suspended until such time as it is satisfied, acting reasonably, that such breach will not be repeated in the future. The Client accepts full and sole responsibility for any charges or penalties from the network operators and, or any regulatory body incurred through any such breach. During any month in which the Client is in breach, the Client shall lose all rights to Revenue Share outpayments in respect of all messages sent as part of the premium rate service.
• Both Parties will ensure that they comply with their responsibilities under the PhonepayPlus Code of Practice as applicable at the time and as detailed at www.phonepayplus.org.uk
• Pursuant to section 1 of the Contracts (Rights of Third Parties) Act 1999, PhonepayPlus may directly enforce the relevant term(s) within Schedule 2: Premium Rate Services.
