Terms & Conditions
Dragonfly SMS is a trading name of M:Science
A. M:Science is a provider of mobile messaging services.
B. Customer wishes to obtain, and M:Science is willing to provide, such services on the terms of this Agreement.
C. The parties will enter into a discrete Service Addendum in respect of each separate supply of Services under this Agreement.
1 Definitions and Interpretation
1.1 In this Agreement, the following terms shall bear the meanings attributed to them below:
1.1.1 “Agreement” means these operative provisions, together with each of its Schedules and each Service Addendum entered into under it;
1.1.2 “Allocated Number” means any specific telephone or text number or code (such as a short code) to be entered by End-users, allocated to the Customer for the Services, either dedicated to the Customer or to be shared with one or more other customers;
1.1.3 “Billable Event” means
(i) for MT: the acceptance by M:Science of a message submitted to the Platform
(ii) for MO: the receipt of a message on the Platform;
1.1.4 “Commencement Date” means the date specified in the Service Addendum for the commencement of the Services to which the Service Addendum relates;
1.1.5 “Customer Rights” means all Intellectual Property Rights subsisting in and in relation to Customer Content;
1.1.6 “Customer Content” means any information provided by or on behalf of the Customer for transmission by M:Science as part of the Services;
1.1.7 “Customer Data” means any personal data (a) comprised in or relating to any message, (b) which is provided by the Customer or any of its direct or indirect customers, or (c) in respect of MO, from any End-user;
1.1.8 “End-user” means any user of the relevant Network Operator’s mobile network;
1.1.9 “Intellectual Property Rights” means all copyright (including but not limited to rights in computer software), patents, trade marks, trade secrets, registered and unregistered design rights, database rights and topography rights, all rights to bring an action for passing off, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
1.1.10 “M:Science Data” means data, excluding (for the avoidance of doubt) Customer Data, which is provided or generated in the course of M:Science’s provision of the Services;
1.1.11 “M:Science Rights” means all Intellectual Property Rights subsisting in and in relation to any aspect of the Services, the Platform or any device, software or data used in connection therewith, including without limitation the M:Science Data;
1.1.12 “MO” (or “Mobile Originated”) means a message received by M:Science from a Network Operator or Aggregator (such as, without limitation, a mobile-originated SMS);
1.1.13 “MT” (or “Mobile Terminated”) means a message sent by M:Science from the Platform to a Network Operator’s mobile network;
1.1.14 “Network Operator” means a mobile network operator which is directly or indirectly engaged in the performance of any of the Services;
1.1.15 “personal data” bears the meaning attributed to that phrase in the Data Protection Directive 95/46/EC (and any national implementation of that Directive) or any successor or supplement to that Directive or national implementation;
1.1.16 “Platform” means the mobile application services platform, and associated systems and network connections, owned and operated by M:Science or by suppliers or partners of M:Science, which is used to provide the Services under this Agreement;
1.1.17 “Protocol Specification” means the protocols to be used by the Customer in order to access the Services, as notified by M:Science to the Customer from time to time;
1.1.18 “PSMS Terms and Conditions” means the Premium SMS Terms and Conditions specified in Schedule 2;
1.1.19 “Regulator” means any relevant regulator or other authority, voluntary or otherwise, including, without limitation, (a) in relation to Premium SMS, the Independent Committee for the Supervision of Standards of Telephone Information Services and/or ICSTIS Limited in the United Kingdom, (b) the relevant Data Protection Authorities in the country where the Customer markets or provides its Services, (c) any Regulator identified in the Service Addendum, and (d) any other legally empowered body or person;
1.1.20 “Revenue Share Payment” (or “Outpayment”) means a payment from M:Science to Customer in the amount specified in the Service Addendum;
1.1.21 “Rights” means the Customer Rights and the M:Science Rights, respectively;
1.1.22 “Service” and “Services” mean the managed mobile infrastructure services and/or other services of M:Science, as defined in the relevant Service Specifications, which M:Science is to supply under any Service Addendum;
1.1.23 “Service Addendum” means a Service Addendum properly executed by the parties under this Agreement in accordance with Clause 2 below;
1.1.24 “Service Interface” means the method to be used by the Customer to connect to the Platform;
1.1.25 “Service Level Agreement” (or “SLA”) means the document of that name attached to this Agreement as Schedule 1;
1.1.26 “Service Specifications” means M:Science’s documentation detailing the features of M:Science’s services, as such Service Specifications may be specified in a Service Addendum, and as they may be updated by M:Science from time to time;
1.1.27 “Subcontractor” means any client or other third party with which the Customer contracts for the provision of any or all of the Services; and
1.1.28 “Term” means the duration of this Agreement, as specified in Clause 13, save as earlier terminated in accordance with the provisions of this Agreement.
1.2 References in this Agreement to “M:Science” and “Customer” shall include their respective employees, agents, sub-contractors, consultants and permitted assigns.
1.3 Headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement.
1.4 Unless the context otherwise requires, the singular includes a reference to the plural and vice versa.
1.5 Words and phrases defined in any part of this Agreement, being these operative provisions, its Schedules and the relevant Service Addendum, shall bear that meaning throughout the other parts of this Agreement, save to the extent otherwise expressly provided therein.
1.6 References to Clauses, Paragraphs and Schedules are, unless otherwise provided, references to the clauses and paragraphs of and schedules to this Agreement.
1.7 Unless the context otherwise requires, any reference in this Agreement to any specific statute shall include a reference to any modification or re-enactment thereof.
2 The Services and the Service Addendum
2.1 In consideration of the Customer satisfying its obligations under this Agreement, M:Science shall provide the Services in accordance with this Agreement from the Commencement Date until:
(a) the end of the term for those Services specified in the relevant Service Addendum;
(b) this Agreement as it relates to those Service is terminated in accordance with this Agreement;
(c) the Term expires; or
(d) this Agreement is terminated in its entirety,
whichever is the earlier to occur.
2.2 The Customer may request additional or amended services by completing a Service Addendum. Each Service Addendum which is accepted, agreed and executed by M:Science will be appended to and form part of the Agreement.
2.3 Each Service Addendum shall address, inter alia:
(a) Service Description;
(b) Service Specification;
(c) Pricing Terms; and
(d) Any Additional Terms and Conditions which apply to the Services in question.
2.4 Where the Service Addendum specifies Premium SMS Services are being taken by the Customer, then (subject to Clause 2.3(d) above) the PSMS Terms and Conditions shall apply thereto.
2.5 The Customer acknowledges and agrees that:
(a) the Services, and the terms and conditions which govern any of them (including, without limitation, the PSMS Terms and Conditions), shall be subject to changes made as a result of changes made by the relevant Network Operator to the corresponding services provided by the Network Operator to M:Science or the terms and conditions which govern such corresponding services; and
(b) in the event that any such change is made which has any effect upon the rights and obligations of the parties under this Agreement, then:
(i) such change shall be deemed automatically to bind the Customer; and
(ii) M:Science will use its reasonable endeavours to notify the relevant changes to the Customer as soon as is reasonably practicable,
provided that if such a change causes substantial adverse change to the performance of the Services, or necessitates the incurring of substantial additional expense by the Customer, then the Customer shall be entitled to terminate this Agreement by thirty days’ notice to M:Science.
2.6 M:Science acknowledges that the Customer shall be entitled to on-provide the Services to its Subcontractors, on condition that the Customer continues to comply with all of its relevant obligations under this Agreement.
2.7 To the extent of any conflict or inconsistency between a Service Addendum and the operative provisions of this Agreement, the Service Addendum shall take precedence in respect of the Services and other matters which are the subject of that Service Addendum. Each individual Service Addendum shall be discrete and shall relate only to the Services which are the subject of it, and accordingly the contents of any individual Service Addendum shall not affect the content of any other Service Addendum or the Services which are the subject of the latter Service Addendum, save only as may be expressly provided in either Service Addendum.
3 Customer Commitments
3.1 The Customer warrants and undertakes to M:Science as follows:
(a) at all times to conform to the protocol specification for the relevant Service Interface notified to the Customer by M:Science from time to time;
(b) to attempt to attach only to the nominated Service Interface and using only the names and passwords notified to them by M:Science from time to time;
(c) to nominate at least 2 weeks prior to the Commencement Date such employees of the Customer as may be required to act as technical coordinators and M:Science’s contact points in order to coordinate delivery of the Services;
(d) to ensure that the technical co-ordinators and other staff of the Customer follow the service administration and fault reporting procedures notified to them by M:Science from time to time;
(e) to accept responsibility for, and pay upon in accordance with this Agreement, M:Science’s charges, as specified in accordance with Clause 5.1, arising from the submission by the Customer to M:Science of messages for delivery to any mobile phone number (including, without limitation, any invalid mobile phone number);
(f) to supply complete and accurate instructions, Customer Content and Customer Data to M:Science sufficient for the performance of the relevant Services, in accordance with such timescales as M:Science may require;
(g) where the Services include any Premium SMS services, to ensure that the PSMS Terms and Conditions are complied with in respect of all such services and messages;
(h) that neither the Customer Content nor the Customer Data or its supply to or use by M:Science or any End-user pursuant to this Agreement shall infringe the rights of any third parties or any laws or regulations, including, without limitation, the Data Protection Directive (95/46/EC), the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Commerce Directive (00/31/EC) and the Distance Selling Directive (97/7/EC), and any national implementations thereof, in any country where any message is originated, delivered or in respect of which any of the Services are performed;
(i) to ensure that the Services are used for proper and lawful purposes only and in accordance with such reasonable instructions as M:Science may from time to time notify to the Customer; and
(j) at its own expense, to comply with all requirements and conditions at any time imposed by law which are applicable to or affect the Services or the conduct of the Customer’s business.
3.2 Without limiting Clause 3.1 above, the Customer undertakes not to use the Services or permit the Services to be used:
(a) for sending any communication which is defamatory, offensive or abusive or of an obscene or menacing nature;
(b) for the persistent sending of messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;
(c) in any way that contravenes applicable law or regulation in any country where the Services are marketed or provided;
(d) in any way that may have a detrimental effect to the goodwill and good standing of any of the relevant Network Operators; or
(e) for the sending of unsolicited messages.
3.3 M:Science may request:
(a) evidence from the Customer of compliance with Clauses 3.1 and 3.2 above, and
(b) the provision by the Customer of reasonable volume forecasts, customer support information and information concerning new services to be provided by means of the Services,
and the Customer agrees to comply with any such request as soon as reasonably practicable, and with such degree of detail as M:Science may reasonably require.
3.4 The Customer acknowledges that the Network Operators have a base of End-users across all age groups. Customer shall be responsible for the Services delivered to End-users and shall take all appropriate measures to procure that the content of each of the Services is not inappropriate for the End-user.
3.5 The Customer also acknowledges that:
(a) an Allocated Number may be similar to another number or code; and
(b) for the avoidance of doubt, M:Science shall have no responsibility in the event that any End-users mistakenly send messages to an Allocated Number instead of another number or code.
4 Compliance and Regulators
4.1 The Customer agrees:
(a) to comply, and to ensure that all of the Customer Content and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, promulgated from time to time by Regulators (collectively, “Codes”) including, without limitation, those of the Mobile Marketing Association (available at www.mmaglobal.com);
(b) to ensure that all advertising of the Services complies with applicable advertising standards, regulations and codes;
(c) to provide M:Science with, and notify M:Science of any subsequent changes to, the name, address and contact telephone number of Subcontractor, and in the event that Subcontractors are limited companies, their registered numbers, together with any Allocated Numbers allocated to such Subcontractors;
(d) to procure that all Subcontractors comply in all respects with the Codes as if they were the Customer under this Agreement;
(e) that where M:Science is advised in writing by a Regulator that the Customer is or has been in breach of any Code, M:Science shall be entitled to act on any request or recommendation by the Regulator for access to be barred to such Services as the Regulator may specify for such periods as the Regulator specify;
(f) to provide all reasonable assistance to M:Science in connection with M:Science’s compliance with any requirements or conditions which are at any time imposed by law or any Regulator which are applicable to or affect the Services.
(g) to provide the Regulator with such information or material relating to the Services or a future service as the Regulator may reasonably request in order to carry out any investigation in connection with (i) the Services or (ii) Customer’s relationship with a Subcontractor.
4.2 In the event that any Network Operator or Regulator:
(a) advises M:Science that the Customer is or has been in breach of any of the Codes, M:Science shall be entitled to act on any request or recommendation by such Network Operator or Regulator to withhold any sums payable to the Customer until the Customer pays to the Network Operator or Regulator (as the case may be) all sums due to meet fines, administrative charges or other sums payable to the Network Operator or Regulator, or M:Science shall be entitled to pay the same out of the monies withheld; or
(b) makes a charge, fine, penalty or debit against M:Science, or any deduction from or reduction of sums otherwise payable to M:Science:
(i) for one or more actual or alleged events the liability for which (if proven) would have arisen out of a breach of Clause 3.1 or 3.2 above or constituted a breach of any of the Codes, or
(ii) in relation to any Services or messages sent pursuant to this Agreement for any reason whatsoever,
then M:Science shall be entitled to recover from the Customer the amount thereof, plus any costs or expenses incurred by M:Science in connection with the incurring of such liability or the relevant charge, fine, debit or deduction.
5 Price, Payment and Currency
5.1 The charges for the Services shall be at the pricing set out in the relevant Service Addendum as adjusted from time to time pursuant to this Clause. In the event that the relevant Service Addendum does not refer to any specific pricing, the Services shall be performed at M:Science’s then current standard charges, which M:Science will notify to the Customer upon request.
5.2 M:Science shall be entitled to change the pricing which applies to Services by:
(a) 30 days’ notice in writing to the Customer, or
(b) such other period of notice as may be specified in the relevant Service Addendum,(a “Price Change Notice”).
In the event that a Price Change Notice is served, the Customer shall have the rights of termination specified in Clause 12.3(b)(ii) below.
5.3 Where the Service Addendum specifies that the Customer is to pre-pay charges to M:Science for Services provided under that Service Addendum, then:
(a) the Customer shall make such payments by the time specified therefor in such Service Addendum;
(b) M:Science will set-off such pre-paid charges against the charges otherwise payable by the Customer for the Services in question, and any other amounts payable by the Customer under this Agreement, and report monthly to the Customer, showing a reconciliation of the pre-paid charges against such fees and amounts;
(c) pre-paid charges will not be returnable, notwithstanding that Services have not been taken by the Customer and Billable Events have not occurred, over any period to which the pre-paid charges are stated to apply, save in the event that M:Science has failed totally to provide the Services in question by reason of M:Science’s breach of this Agreement;
(d) in the event that M:Science’s charges attributable to the Services or Billable Events which are the subject of such pre-paid charges are equivalent to or exceed the amount for which pre-payment has been received from the Customer, then M:Science shall be entitled to suspend provision of the relevant Services until further payment has been received from the Customer in an amount specified by M:Science.
5.4 All amounts payable under the Agreement are exclusive of any value added tax that may be payable. The Customer will pay all such value added tax at the rate and in the manner required by law.
5.5 All charges for the Services and the Billable Events shall be calculated by reference to data recorded by M:Science. The unique reference number for a Billable Event retained by M:Science’s records shall, in the event of any dispute, serve as proof of the occurrence of such Billable Event.
5.6 For the avoidance of doubt a message charge is incurred by the Customer each time a Billable Event occurs, at the rates referred to in Clause 5.1.
5.7 Save to the extent otherwise provided in the relevant Service Addendum, the fixed or variable nature of the pricing for Services shall be governed by the relevant terms of the Service Addendum.
5.8 Where an invoice is issued for sums payable to M:Science by the Customer under this Agreement:
(a) such sums shall be paid by the Customer within 15 days of the date of M:Science’s invoice; and
(b) unless otherwise specified in the relevant Service Addendum M:Science will issue such invoices to the Customer on a monthly basis.
5.9 Unless otherwise agreed in writing between the parties;
(a) all payments of charges by the Customer to M:Science and other transfers of funds between the parties required under this Agreement shall be made by bank transfer, and
(b) all charges and fees relating to such transfers (including, without limitation, those levied by the paying and payee bank or other financial institution) will be borne by the Customer; M:Science will include the amount of such charges and fees in invoices and statements issued to the Customer under this Agreement.
5.10 Where Outpayments are specified in a Service Addendum and are due to Customer, Customer shall be paid as follows:-
(a) M:Science will notify Customer monthly in writing of the Outpayments due to the Customer, as calculated in accordance with the relevant Service Addendum, based on reports from Network Operators;
(b) Customer shall invoice M:Science for the amounts of the Outpayments which are thus notified by M:Science; and
(c) M:Science will make payment to the Customer of the relevant Outpayment amounts, subject to Clauses 5.11 and 5.12 below, 15 days after receiving payment from the relevant Network Operators for the Premium Rate Messages in respect of which the Outpayments are payable.
5.11 Where M:Science owes to the Customer any sums, or holds any sums on its behalf (including, without limitation, pre-paid charges referred to in Clause 5.3 above), then M:Science shall be entitled to set off against any such sums any amounts owed to M:Science by, or which M:Science is entitled to recover from or credit against, the Customer under or in connection with any Service Addendum or this Agreement.
5.12 Where M:Science is due to make any payment to the Customer under this Agreement, M:Science shall be entitled, but not obliged, to retain such amounts and pay them to the Customer only once they exceed £1,000.00 (one thousand pounds).
5.13 If an End-user contacts M:Science in relation to the Services M:Science shall redirect or transfer such End-user to the support facilities of Customer, or, if such a transfer is not, in M:Science’s opinion, reasonably practicable, for any reason (including, without limitation, by reason of any unwillingness by the End-user to be redirected to the Customer), then M:Science may itself provide an initial response to the query or complaint. M:Science shall have the right to charge the Customer the sum of £5 in respect of each individual telephone or other contact made by an End-user with M:Science or any agent of M:Science. M:Science does not warrant that any response it gives to End-users as provided in this Clause will be appropriate to the Services, or would be similar to the response which the Customer would give.
5.14 If any Network Operator makes a charge to or deduction from outpayments due to M:Science for calls made to such Network Operator by any End-Users, then M:Science shall be entitled to recover the amount of any such charges or deductions.
5.15 In the event that any payment due under the Agreement is not paid on the due date for payment then M:Science shall be entitled to charge interest thereon at the rate of five percent per annum over the base rate of National Westminster Bank Plc from time to time from the date payment becomes due until payment in full. Such interest shall accrue daily.
5.16 If the pricing for Services in a Service Addendum is expressed in a currency other than pounds sterling, then, in respect of that Service Addendum only, sums expressed in this Agreement in pounds sterling shall, at the relevant time, be converted into that currency at the then-current conversion rate for business transactions of National Westminster Bank Plc.
5.17 Obligations under this Clause 5, other than under Clause 5.12, shall survive any termination of this Agreement.
6.1 For the purpose of this Agreement, “Confidential Information” shall mean all Intellectual Property Rights, drawings, software, data, specifications, processes, testing procedures, customer information, financial information, product and services information and all other technical, business and other information and material relating or belonging to a party or its customers which is in the course of the performance of this Agreement obtained by either party in relation to the other, either directly or indirectly.
6.2 Confidential Information shall not include:
(a) information which was in the public domain at the time of disclosure;
(b) information which, though originally Confidential Information, subsequently falls into the public domain other than as a result of any breach of this Clause or any other duty of confidence;
(c) information received by a party from a third party, or already known by such party, without any breach of this Clause or any obligation of confidentiality;
(d) information that is trivial or obvious; and
(e) information that is required to be disclosed by a government body or court of competent jurisdiction or by operation of law or in order to comply with the rules of a recognised stock exchange., but only to the extent so required.
6.3 Each party hereby agrees, other than as permitted by the Agreement, to keep the Confidential Information of the other in complete confidence and not to disclose the same to any third parties (except as set out above), nor use it for any purposes other than for the performance of its duties under the Agreement (the “Specific Purposes”). Either party may disclose the Confidential Information of the other to its employees 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. Each party hereby agrees to use reasonable endeavours to ensure that all such employees do not disclose Confidential Information of the other party to third parties or use the same otherwise than as reasonably required for the Specific Purposes. The provisions of this Clause shall continue in full force and effect notwithstanding the termination of the Agreement for any reason whatsoever.
7 Warranties / Liability
7.1 M:Science warrants that the Services will be performed with reasonable care and skill with the objective of meeting the requirements of this Agreement, including (without limitation) the Service Specifications and the Service Level Agreement.
7.2 M:Science 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.
7.3 Nothing in the Agreement shall exclude or restrict M:Science’s or the Customer’s liability for death or personal injury resulting from its negligence.
7.4 Subject always to Clause 7.5, M:Science shall be liable for direct loss or damage only, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, arising out of or in connection with this Agreement and whether caused by its act or omission or that of its employees, agents or subcontractors. M:Science’s aggregate liability during any successive period of twelve months, the first of which shall be deemed to begin on the Commencement Date (each a “Year”) shall be limited to the greater of (a) the aggregate of the charges paid or payable by the Customer to M:Science under this Agreement in respect of such Year, or (b) £10,000 (ten thousand pounds).
7.5 M:Science shall not be liable to the Customer or any other person or entity, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:
(a) for any loss of revenue, business, anticipated savings or profits, or
(b) for any indirect, special or consequential loss damage, costs or other claims,
howsoever caused or arising, whether through non-supply or late supply of Services or other non-performance of the Agreement or otherwise.
7.6 Except as expressly stated elsewhere in the Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, save in the case of fraud.
7.7 M:Science shall have no liability to the Customer or any other person for or in respect of any Customer Content, Customer Data or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other act or omission of the Customer
7.8 M:Science will use reasonable endeavours to meet any dates agreed between the parties in writing for the commencement of the Services.
7.9 If M:Science shall fail to meet any service level or other requirement specified in the Service Level Agreement, then M:Science’s entire liability, and the Customer’s entire remedy, shall be for M:Science to use reasonable endeavours to correct such failure in future deliveries of the affected Services.
7.10 The provisions of this Clause 7 shall survive the termination or expiry of the Agreement.
8 Intellectual Property Rights
8.1 Ownership of all M:Science Rights shall vest in and remain with M:Science.
8.2 M:Science shall license to the Customer for the term of the Agreement such use of M:Science Rights as is directly and unavoidably required by the Customer to use the Services (including any documentation or software which M:Science makes available to the Customer for use pursuant to this Agreement).
8.3 The Customer shall license to M:Science, on the basis set out in this Clause, the Customer Rights in order that M:Science is enabled to provide the Services in accordance with this Agreement.
8.4 Any licence granted under this Clause 8 shall be non-transferable, non-sublicensable, non-exclusive and royalty-free and shall be limited to the Term in respect of the Services to which the licence relates and shall be granted only for the purpose of fulfilling the respective party’s rights and obligations under this Agreement.
8.5 Each party warrants to the other that it is the owner of its respective Rights or is entitled to license its respective Rights as provided under Clauses 8.2 or 8.3, as applicable.
8.6 Neither party shall reverse engineer, decompile or disassemble any software comprised in the other party’s Rights save to the extent expressly permitted by applicable law.
9 Non-solicitation of Employees
Both parties agree, during the Term and for a period of six (6) months thereafter, not directly or indirectly (other than by general advertising) to solicit employ or engage, or endeavour to do so, any employees of, or any contractors used by the other party in the performance of its obligations under this Agreement without the prior written consent of the latter party.
10 Non-assignability and Third Party Rights
10.1 The Customer may not without M:Science’s prior written consent, transfer or assign or otherwise deal with any or its rights and obligations under this Agreement. Notwithstanding any subcontracting by the Customer of any of its obligations under this Agreement, the Customer shall remain liable for performing those obligations.
10.2 The Customer acknowledges that M:Science shall be entitled, by notice in writing to the Customer, to assign any or all of its rights and obligations under this Agreement to any third party.
10.3 The parties to this Agreement do not intend that any terms of this Agreement should be enforceable by any person or entity who or which is not a party to this Agreement.
The Customer shall indemnify M:Science and keep M:Science fully and effectively indemnified against all costs, claims, demands, liabilities, actions and proceedings made by any person or entity (including, without limitation, any Regulator) arising out of or in connection with (a) any breach of this Agreement by Customer, or (b) the provision or use of the Services by any person or (c) the conduct of Customer’s business.
12 Suspension and Termination
12.1 M:Science may in its sole discretion suspend provision of the Services at any time in the event that:
(a) M:Science is entitled to terminate this Agreement;
(b) M:Science is obliged or advised to comply with an order, instruction or request of the government, Regulator, court or other competent authority;
(c) M:Science has cause to believe in its reasonable opinion that the Customer is in breach of any of its obligations under this Agreement;
(d) the services of one or more of the Network Operators upon which the provision of Services hereunder is dependent suspends its provision of those services to M:Science under the terms of its or their relevant agreement(s) with M:Science; or
(e) in the event that any payment due hereunder is outstanding after the due date for payment; or
(f) a pre-paid message account is dormant (no messages sent or received) for more than 1 year. In this event the Customer can request for the message account to be reinstated by email to email@example.com
12.2 Where M:Science determines in its discretion it is practicable to do so, then M:Science shall effect any such suspension only in respect of those Services which are affected by the matters referred to in the above sub-Clauses.
12.3 The Agreement may be terminated prior to expiration of the Term by notice in writing as follows:
(a) 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;
(b) by the Customer in respect of any specific Service Addendum and the Services which are the subject thereof (but, for the avoidance of doubt, not any other Service Addendum or Services):
(i) where the Service Level Agreement expressly permits termination in respect of the relevant Service Addendum and Services; or
(ii) in the event that a Price Change Notice is served under Clause 5.2, provided that the Customer’s written notice of termination (i) shall be of reasonable duration, and (ii) shall expire no later than the date when the pricing change which is the subject of the Price Change Notice is scheduled to take effect, as specified in the relevant Price Change Notice;
(c) by M:Science by immediate notice in the event that one or more of the Network Operators upon which the provision of Services hereunder is dependent terminates its provision of those services to M:Science under the terms of its or their relevant agreement(s) with M:Science; or
(d) by M:Science, in respect of any specific Service Addendum and the Services which are the subject of it (but, for the avoidance of doubt, not any other Service Addendum or Services), in the event that any modification to M:Science’s existing Network Operator contracts or any change in any law, regulation or code of conduct makes the provision of such Services illegal or contrary to such law, regulation or code of conduct, prohibitively difficult, or prohibitively expensive for M:Science;
(e) by M:Science by immediate notice in the event that the Customer is in material breach of its obligations under Clause 3.1 or 3.2;
(f) by either party in the event that the other 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; or
(g) by M:Science in the event that any payment due hereunder is not paid by the Customer within 30 days of the due date for payment.
12.4 Upon termination or expiration of the Agreement the Customer shall deliver to M:Science all material containing any of the Confidential Information of M:Science within fourteen (14) days of such termination or expiration or (at the option of M:Science a statement confirming that such copies have been destroyed) and M:Science shall return to the Customer all material provided in documentary form by the Customer to M:Science containing information in the nature of Confidential Information of the Customer which it holds; provided that (a) M:Science shall not be obliged to return such material to the Customer where in doing so M:Science would be likely to compromise the confidentiality of any other person’s confidential information); and (b) M:Science shall be entitled to retain and use all Confidential Information of the Customer including but not limited to MSISDN numbers provided by the Customer to M:Science as part of the Customer Data or Customer Content notwithstanding termination of the Agreement for so long as is required by M:Science in connection with the performance by M:Science of obligations owed to third parties or in order to satisfy legal or regulatory requirements.
13.1 This Agreement shall continue in force until the expiry or termination of all of the Service Addenda entered into under this Agreement.
13.2 Unless otherwise specified therein, unless earlier terminated in accordance with this Agreement, each Service Addendum shall continue until the service by either party of at least ninety (90) days’ written notice to the other party, such notice to expire no earlier than the first anniversary of that Service Addendum’s Commencement Date.
Any public announcement regarding the Agreement and/or the subject matter of the Agreement shall be agreed in writing in advance by the Parties.
15 Data Protection
15.1 The Customer warrants and undertakes that:
(a) if any of the Customer Data or other data made available by or on behalf of the Customer to M:Science amounts to personal data, in respect thereof the Customer shall be the data controller and M:Science the data processor as defined in the Data Protection Act 1998; and
(b) it shall comply with all applicable laws and regulations in relation to the provision of its Services, and in particular but without limitation Customer shall comply with the Data Protection Act 1998, and all other relevant data protection and privacy laws.
16 Force Majeure
16.1 Either party’s performance of any part of the Agreement, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:
(a) the acts or omissions of the other party or any Network Operator;
(b) flood, fire, earthquake, strike or riot; or
(c) any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party (collectively referred to as “force majeure conditions” below).
16.2 If any such force majeure condition occurs, the non-performing party shall make reasonable efforts to notify the other party of the nature of any such condition and the extent of the delay, and shall make reasonable, good faith efforts to resume performance as soon as possible.
17.1 The Agreement including its Attachment and each Service Addendum constitutes the entire agreement between the parties and supersedes any prior discussions, writings, agreements and negotiations with respect thereto.
17.2 Any amendment to the Agreement must be in writing signed by or on behalf of both parties.
17.3 No waiver of any provision of the Agreement by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of the Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
17.4 The Agreement shall be governed by the laws of England, and the parties hereby submit to the exclusive jurisdiction of the English courts for the resolution of any dispute which may arise in connection herewith.
17.5 Any notice under this Agreement shall be in writing and sent:
(a) where the notice is served pursuant to (i) Clause 1.1.17, 2.5, 3.1, 3.2, 5.1 or 5.2 or (ii) the PSMS Terms and Conditions, by email, addressed to the recipient’s email address specified in the Service Addendum (provided a copy of such email is retained by the sending party, and made available to the recipient if it is reasonably requested), or to such other email address as is notified by the recipient from time to time by email sent in accordance with this Clause
17.5(a); or (b) where the notice is served pursuant to any other provision of this Agreement, including, without limitation, Clause 2.5(b), 10.2, 12.3, 13.2 or 16.2, by recorded delivery post to the address for such party set out at the beginning of this Agreement or to such other address as such party has for the time being notified to the other in accordance with this Clause 17.5(b).
17.6 If any portion of the Agreement is determined to be or becomes unenorceable or illegal, such portion shall be deemed eliminated and the remainder of the Agreement shall remain in effect in accordance with its terms as modified by such deletion.
SERVICE LEVEL AGREEMENT
1.1 “Available” means capable of being accessed substantially in accordance with the Service Specification.
1.2 “Delivery Latency” means the average time it takes for the first delivery attempt of a message, measured from entry into the Platform to first delivery attempt to an End-user’s mobile phone handset.
1.3 “Excluded Time” has the meaning attributed to it in Paragraph 2.3 below.
1.4 “Failure” means any failure of the Services to operate in accordance with the Service Specification, save arising during or as a result of any Excluded Time.
1.5 “Latency” means the average time it takes for a message to pass through the Platform measured from entry into the Platform to first submission into a Network Operator’s network for delivery.
1.6 “Long Number” means the MSISDN Allocated Number(s) provided by M:Science to Customer for receipt of text messages by the Platform.
1.7 “Network Operator Mobile Network” means the network of a Network Operator in a Subscribed Country.
1.8 “Notionally Available Time” means the total amount of time in a given period, minus all Excluded Time.
1.9 “Planned Maintenance” means maintenance of which M:Science provides to the Customer at least 48 hours advance notice.
1.10 “Platform Availability” means the proportion, expressed as a percentage, of the Notionally Available Time during which the Platform is Available.
1.11 “Short Code” means the Network Operator short code provided for the receipt of text messages by the Platform.
1.12 “Subscribed Country” means a country for which the Customer has expressly ordered Services under a Service Addendum.
1.13 “Throughput” means the average number of messages per second the Platform is able to receive from Customer (for MT messages) or pass to Customer (for MO messages).
2.1 M:Science will make the Platform available to the Customer and will pass messages to and accept messages from the Customer, provided they are submitted and received using the M:Science SMS Server product v5 or later.
2.2 M:Science will use reasonable endeavours to ensure that, during each month:
(a) the Platform has Platform Availability of 99.8%; and
(b) Throughput averages 75% or more of the targeted levels specified in Paragraphs 8 and Error! Reference source not found., in the calculation of which Excluded Time shall not be counted; and
(c) Latency averages 150% or less of the targeted levels specified in Paragraphs 8 and Error! Reference source not found., in the calculation of which Excluded Time shall not be counted.
For the purposes of (a), the Platform will be deemed not Available during time other than Excluded Time when the Platform has either a lower average Throughput than the level specified in (b) above or a higher average Latency than the level specified in (c) above.
2.3 In this Service Level Agreement, Excluded Time means any time during which:
(a) the Platform is not Available, or access thereto is inhibited, as a result of any:
(i) Planned Maintenance;
(ii) failure of, or congestion experienced in, any part of a Network Operator Mobile Network or the Internet, other than network failures experienced only on the site where the Platform is hosted;
(iii) force majeure conditions (as force majeure conditions are defined in Clause 16.1 of the Agreement);
(iv) failure of, or other problem encountered in relation to, a Customer application;
(v) suspension of Services under Clause 12 of the Agreement;
(b) a substantially equivalent failover platform is made available by M:Science to the Customer.
2.4 M:Science will use reasonable endeavours to ensure that Network Operators’ network changes do not affect the performance of the Service.
3 Failure Classifications
3.1 All Failures shall be reported by the Customer to M:Science in accordance with Paragraph 4 below, stating the nature of the Failure and information required for its resolution. For the purposes of this SLA, a Failure will be deemed to have been reported at the earlier of (a) when M:Science’s Service Desk receives a report of it in accordance with Paragraph 4.1, either through e-mail or by telephone, or (b) when M:Science opens a ticket in the M:Science system to track the Failure.
3.2 Once a Failure has been reported and M:Science has performed initial investigations, M:Science will respond to the Customer by email with the following information:
(a) Time Failure Reported;
(b) Severity – classified as High – Very Low; and
(c) Estimated time to resolve Failure for Severity High and Normal
3.3 M:Science will classify Failures as follows:-
(a) Severity – High (I). Services are totally unavailable across all of the Network Operator Mobile Networks covered by the Services (the ‘Aggregated Mobile Networks’) as follows:
(i) MO messages not received by Platform from the Aggregated Mobile Networks; or
(ii) Platform unable to send messages to the Aggregated Mobile Networks; or
(iii) Customer is completely unable to connect to Platform by reason of a breach of the Agreement on the part of M:Science; or
(iv) Platform corrupts all messages such that Services are unusable through all of the Network Operator Mobile Networks covered by the Services; or
(v) Other critical faults affecting all messages sent by the Customer using the Services.
(b) Severity – Normal (II) applies only in relation to Premium SMS Services; there are no Severity II Failures of any other Services. Services are totally unavailable on at least one Network Operatr Mobile Network, as specified in Severity I above, save that references to Aggregated Mobile Networks there shall be interpreted as references to such Mobile Network(s) for this purpose.
(c) Severity – Low (III). Services are usable, but either:
(i) MT or MO messages are not delivered in accordance with the Service Specification; or
(ii) Services are unusable by a substantial proportion of end-users on a Network Operator Mobile Network, as specified in Severity I above, save that references to Aggregated Mobile Networks there shall be interpreted as references to that substantial proportion of end-users of such Network Operator Mobile Network for this purpose.
(d) Severity – Very Low (IV). All Failures, other than those referred to in Severity I-III above, which result from any act or omission on the part of M:Science.
3.4 Economy Products. All Severity I or II Failures on Economy Products will be treated as Severity III under this SLA. The relevant Service Addendum will specify whether Services are Economy Products.
3.5 Failures will be closed when M:Science reasonably determines that closure of the Failure has occurred.
4 Failure Reporting
4.1 Customer shall report Failures to M:Science using the following methods:
(a) by email to firstname.lastname@example.org
(b) by telephone to UK customer support at +44 1202 241120
(c) M:Science will use all reasonable endeavours to respond to the Target Response Time and Target Maximum Fix Time during ‘Working Hours’ which are from 09.00 to 17.30 Monday to Friday (excluding UK public and bank holidays) UK time.
5 Target Response & Fix Times
Note that all times quoted are expressed in Working Hours.
Failure Severity Target Response Time Target Maximujm Fix Time
I 1 Hour 4 Hours
II 2 Hours 1 Day
III 1 Day 2 Days
IV 1 Day 5 Days
Target Maximum Fix Time applies only to Failures within the direct control of M:Science; no Target Maximum Fix Time shall be deemed to apply to any other types of Failure.
6 Escalation Matrix
Severity I Severity II Severity III Severity IV
Service Desk Immediate Immediate Immediate Immediate
Level I Immediate 1 Day 2 Days 5 Days
Level II 4 Hours 2 Days 4 Days 10 Days
Level III 8 Hours 4 Days 8 Days 15 Days
7 Contact Details and Escalation Paths
Level I Support Manager Account Manager
Level II Development Manager Sales Director
Level III Technical Director Managing Director
The above matrix is followed internally by M:Science. If the Customer wishes to escalate, the Customer must inform the Service Desk or Account Manager who will escalate to the relevant person.
8 Throughput and Latency for SMS Services
8.1 For MT Premium Rate Messages, M:Science’s target is that the Platform:
(a) should have Throughput of 2 messages per second; and
(b) should have Latency of 80 seconds.
8.2 M:Science’s target is to pass messages to the Customer at the rate received by M:Science from the relevant Network Operator Mobile Network at a Throughput of up to 2 messages per second.
9 Conditions for Throughput and Latency
Throughput and Latency targets in this SLA:
9.1 are conditional upon the Customer sending and receiving messages at the relevant rate;
9.2 for MO Premium and MO non-Premium services, are conditional upon the relevant Network Operator(s) sending messages to M:Science at the relevant rate;
9.3 for non-Premium MT SMS services to non-GSM networks and MT Premium Rate Messages to any network, Throughput is conditional upon the relevant Network Operator(s) being able to receive messages from M:Science at this rate;
9.4 refer to the aggregate Throughput for all Services which are the subject of a specific Service Addendum; and
9.5 apply discretely to the Services which are the subject of any given Service Addendum, and are independent of Throughput and Latency targets for the Services which are the subject of any other Service Addendum.
9.6 M:Science will work with Network Operators with the object of arranging for sufficient capacity in the Network Operator Mobile Networks to meet any agreed MO traffic and message throughput forecasts.
9.7 If so requested by M:Science in respect of MO applications expected by either the Customer or M:Science to exceed 2 messages per second, such forecast will be derived from a capacity model provided by Customer and agreed in writing by M:Science. At the Customer’s request, M:Science will assist in development of such capacity model. If changes to an existing capacity model and/or forecast are agreed between M:Science and the Customer, then M:Science will work with Network Operators to implement the changes which are required as a result as soon as is reasonably practicable.
9.8 M:Science will use reasonable endeavours to work with Network Operators with the objective of fixing any problems encountered in the receipt of messages by the Platform.
9.9 M:Science will use reasonable endeavours to ensure that there is sufficient network capacity for the Platform to receive messages at a Throughput of 2 msg/sec.
9.10 M:Science will ensure that the Platform makes the Allocated Number(s) available for receipt of messages from the Network Operators.
10.1 M:Science may require short periods of unavailability of Services for maintenance reasons and in order to implement changes and upgrades.
10.2 M:Science will use reasonable endeavours to perform maintenance which requires the unavailability of the Services, or which is reasonably likely to have an adverse effect upon the Services between the hours of 19:00 to 06:00 UK Time
10.3 In the case of un-planned maintenance M:Science shall provide 24 hours notice whenever reasonably practicable, and in the case of emergency maintenance M:Science shall provide as much advance notice to Customer as is reasonably practicable.
10.4 M:Science will use reasonable endeavours to give the Customer:
(a) at least 2 weeks advanced notice of any changes to the Services which will require the Customer to make modifications in how it connects to the Platform; and
(b) advance notice of planned maintenance on Network Operator Mobile Networks, the Customer acknowledging that the provision of such notice is conditional upon M:Science itself being provided with notice from the relevant Network Operator(s).
10.5 M:Science shall use its reasonable endeavours to conduct maintenance under this paragraph so as to minimise adverse impact on customers.
11 Termination conditions
The following shall constitute events giving rise to a right of the Customer to terminate a specific Service Addendum and the Services provided thereunder under Clause 12.3(b) of the Agreement by 30 days’ notice in writing to M:Science given during the 30 day period following the end of a calendar month during which:
11.1 more than 3 Severity I Failures are properly reported by the Customer; and
11.2 more than 5 Severity II Failures are properly reported which adversely affect at least 25% of the Customer’s messages sent under the relevant Services.
SCHEDULE 2 – PREMIUM SMS TERMS AND CONDITIONS
1.1 “Customer Care Form” means a document in the form notified to the Customer by M:Science from time to time that details information that the Network Operators’ customer care departments need to respond adequately to End-users who call in with complaints or queries about the Services.
1.2 “MO Premium Rate Message” means an SMS text message sent by an End-user to an Allocated Number.
1.3 “MT Premium Rate Message” means a mobile-terminating premium rate SMS message sent by Customer through the Platform to an End-user in response to a Service Request.
1.4 “Multiple Request” means a request from an End-user (capable of Validation as originating from such End-user) to Customer or to M:Science to prompt a certain (or indefinite) number of MT Premium Rate Messages to be sent to such End-user’s mobile phone at predetermined intervals, or upon the occurrence of predetermined events.
1.5 “Permitted Premium Rate Services” means the provision of such Premium Rate Messages as are:
(a) specified on an M:Science Customer Care Form which has been submitted to, and approved by, M:Science, for the relevant Service Addendum; or
(b) notified in writing by Customer to M:Science and approved in writing by M:Science,
in each case, such approval not to be unreasonably withheld.
1.6 “Premium Rate Message” means MO Premium Rate Message and MT Premium Rate Message, and either of them.
1.7 “Service Request” means a Single Request or a Multiple Request.
1.8 “Single Request” means a request from an End-user (capable of Validation as originating from such End-user) to Customer or to M:Science to prompt a single MT Premium Rate Message to be sent to such End-user’s mobile phone.
1.9 “Validation” means a process (acceptable to M:Science in accordance with Paragraph 3.4 below) by which Customer can prove that a Service Request originated from the End-user to whom the relevant MT Premium Rate Message was sent.
2 Customer Commitments
Customer accepts full responsibility for obtaining permission from End-users to send MT Premium Rate Messages to them and charge them money for receiving such messages using the Service including responsibility for any Network Operator or Regulator-imposed fines that may result from non-compliance with this or other conditions.
3 Matters relating to the sending of MT Premium Rate Messages
3.1 Customer shall be entitled to provide Permitted Premium Rate Services to End-users provided that:
(a) an appropriate Service Request shall first have been received from such End-user;
(b) an End-user shall be sent not more than one MT Premium Rate Message in response to a Single Request;
(c) no more MT Premium Rate Messages shall be sent to an End-user in response to a Multiple Request than such End-user shall have requested via such Multiple Request; and
(d) regardless of the number of Service Requests made, the total number of MT Premium Rate Messages sent to a single End-user in any one day in respect of a particular Service or via a particular Allocated Number shall be no more than the number that would cost such End-user the relevant amount specified in the Service Addendum, provided that if no amount is specified in the Service Addendum, then the relevant amount shall be deemed to be £15 including VAT.
3.2 Customer shall not provide any Premium Rate Message services to End-users which are not Permitted Premium Rate Services.
(a) shall be responsible for retaining (for a minimum of 3 months after the last MT Premium Rate Message was sent to any given End-user) evidence that each MT Premium Rate Message sent to that End-user was sent in response to a Service Request that had been subject to proper Validation; and
(b) hereby agrees that, upon written request giving 5 days notice, M:Science shall have the right to inspect the evidence referred to at (a) above.
3.4 Methods of Validation which are acceptable to M:Science shall be stipulated in writing to Customer from time to time. In the event that Customer wishes to use any other method, it shall first obtain the prior written approval of M:Science (which approval M:Science shall not unreasonably withhold), absent which such method shall be deemed invalid for the purposes of this Paragraph. Current methods of Validation must include either:
(a) a requirement on the End-user to communicate his Service Request to M:Science or to Customer using his mobile phone in such a way that his MSIDN (End-User mobile phone number) is capable of being captured and stored by M:Science or by Customer; or
(b) the delivery (free of charge to the End-user) to the End-user’s mobile phone of a unique identifying code relating to the Service allowing such End-user to make his Service Request other than via his mobile phone.
3.5 Customer shall procure:
(a) that before they make a Service Request or send a MO Premium Rate Message, End-users have been made aware of the identity of Customer as the supplier of the Services (details to include a contact address in the country in which the MO Premium Rate Message is sent);
(b) that before they make a Service Request or send a MO Premium Rate Message, End-users have an adequate description of the Services;
(c) that before they make a Service Request or send a MO Premium Rate Message, End-users have been made aware of (i) the cost of the Service Request or MO Premium Rate Message, (ii) the cost of the relevant MT Premium Rate Messages, (iii) the frequency and number (unless this is indefinite – in which case this fact shall be made clear) of MT Premium Rate Messages that will be received in response to a Multiple Request and (iv) their rights to cancel described in Paragraph 3.5(e);
(d) that before they make a Service Request or send a MO Premium Rate Message, End-users have been made aware of the arrangements for payment (i.e. that charges will be made via the End-user’s mobile phone bill, or deducted from the End-user’s mobile phone credit (as appropriate));
(e) that after they make a Multiple Request, End-users have the right and the capability at any time to cancel such Multiple Request with immediate effect following which cancellation any communication (including but not limited to SMS) sent by Customer to the End-user shall be free of charge to the End-user, and that such cancellation capability is available to the End-user in the same format (i.e. either via the internet or SMS) as he originally made the Multiple Request;
(f) that before they make a Service Request or send a MO Premium Rate Message, End-users are aware of contact details for customer care run by Customer, and that if they have a complaint relating to the Services they should contact Customer and not M:Science.
3.6 Breach of any part of this Paragraph 3 by Customer will entitle M:Science to suspend immediately all Services run by Customer under this Agreement until such time as it is satisfied, acting reasonably, that such breach will not be repeated in the future.
4 Revenue Share Payments
4.1 In the event a Network Operator is unable to collect funds from an End-user, no payment will be due to the Customer for that End-user.
4.2 Calculation of Revenue Share Payments shall be made with reference to Network Operator billing information and accordingly in the event of any dispute, Network Operator billing information shall be conclusive.
4.3 For shared Allocated Number services, Revenue Share Payments from Network Operators will be pro-rated across all users of the Allocated Number based on message volumes, in order to calculate the sum due to the Customer.
4.4 Any SMS delivery costs or other charges made to M:Science by the Network Operator in the event of non-collection of funds from an End-user will be deducted from payments due to the Customer.
5 End-user support
5.1 Customer’s right to launch a new Premium Rate Service is conditional upon Customer first completing and returning electronically to email@example.com (or other such email address as notified to Customer by M:Science) a Customer Care Form which satisfies the relevant mobile Network Operators that the Services will be run in accordance with the terms of this Agreement. At its discretion, M:Science may require tests to be run on a new Premium Rate Service before deciding whether or not it can go live. Customer shall continue to be obliged to keep M:Science informed (promptly) of any changes to the details on the Customer Care Form throughout the term of this Agreement.
5.2 Customer shall be responsible for ensuring that adequate support (for instance, the provision of a telephone support help line relevant to the Services to be operational during business hours) is provided for all End-users in relation to the Services and shall be required to inform End-users of any related routes of contact in relation to the Services.
5.3 Customer accepts all responsibility and liability for any payments made to End-users in compensation for Premium Rate Message that are not solicited (that is, not properly sent in accordance with the terms of this Agreement) or sent after an End-user has exercised the right to cancel described in Paragraph 3.5(e). This liability extends to any ex-gratia payment made by the Network Operator where a failure by Customer to respect cancellation by an End-user has occurred. For the avoidance of doubt:
(a) M:Science shall be entitled to pass on to Customer and Customer hereby agrees to pay any such ex-gratia payments made by Network Operators to End-users ;
(b) in relation to any individual ex-gratia payment to an End-User in excess of £15 (including VAT) in respect of each Allocated Number each day, M:Science shall (i) inform the Customer thereof, and (ii) allow the Customer an opportunity to make representations to M:Science as to the amount of such payments. M:Science will take note of such representations, notwithstanding which (and provided that) the Customer hereby acknowledges that M:Science will be entitled to make such payment as is required by the relevant Network Operator, and to recover the amount of such payment from the Customer pursuant to paragraph (a) above;
(c) where aggregate ex-gratia payments to End-Users in any month exceed £2,000 (including VAT) in relation to any individual Service or Allocated Number, then M:Science shall (i) inform the Customer thereof, and (ii) allow the Customer an opportunity to make representations to M:Science as to the amount of such payments. M:Science will take note of such representations, notwithstanding which (and provided that) the Customer hereby acknowledges that M:Science will be entitled to make such payment as is required by the relevant Network Operator, and to recover the amount of such payment from the Customer pursuant to paragraph (a) above;
(d) M:Science shall include an invoice for any such payments as part of the billing information provided to Customer.
5.4 Customer agrees promptly to reimburse M:Science for any charges levied by Network Operators for actions undertaken in relation to the Customer or any End-Users (such as, without limitation, charges for calls made to call-centres by End-Users). M:Science shall include an invoice for any such payments as part of the billing information provided to Customer.
5.5 Where an End-user is entitled to any refund in respect of Premium Rate Services or MT Premium Rate Messages, Customer shall be obliged to refund such End-user the amount that such End-user paid for such Services or MT Premium Rate Messages, and not just the relevant Revenue Share Payment received by Customer. This provision shall be enforceable by M:Science on behalf of End-users.
6 Association of Services with M:Science
6.1 Customer must ensure that the Services are of a quality and kind likely that is not likely to bring M:Science or the Network Operators into disrepute. Whether or not the Services comply with this Paragraph shall be a matter to be determined by M:Science in its sole discretion, albeit M:Science will act reasonably.
6.2 Customer must not state or imply any approval by M:Science or the Network Operator of the Services or refer to M:Science without the express and prior approval in writing of M:Science. Notwithstanding the foregoing, Customer is entitled to refer to M:Science or the relevant Network Operator and its services to the extent necessary in order to inform End-users or potential End-users about the Services and their use and in order to fulfil its obligations under this Agreement, applicable laws and/or regulations.
7 Network issues
7.1 The Customer shall consult with M:Science (at M:Science’s request) with a view to ensuring that the number of attempted Service Requests (via SMS) and Premium Rate Messages at any time does not significantly exceed M:Science’s capacity or the relevant Network Operator’s SMS capacity.
7.2 In the event that (a) such capacity is exceeded, or (b) M:Science believes, acting reasonably, that such capacity is likely to be exceeded, then upon receipt of any notice thereof given by M:Science to the Customer, the Customer shall promptly take all reasonable steps to prevent such excess.
7.3 The Customer acknowledges that if M:Science is unable to contact Customer for the purposes stated in Paragraph 7.2 or the Customer fails promptly to prevent such excess, M:Science shall be entitled to take whatever action it deems appropriate to prevent such excess, including temporarily suspending the availability of the Services to End-users, as provided in Paragraph 7.5.
7.4 The Customer shall give to M:Science at least 14 days’ written notice before advertising any of the Services on television, whether by terrestrial, cable, satellite or otherwise.
7.5 Without prejudice to M:Science’s other rights under this Agreement, any breach of Paragraph 7.2 by Customer, and in any event any exceeding of M:Science’s or the relevant Network Operator’s SMS capacity, will entitle M:Science to suspend all Services under this Agreement immediately, and to keep them suspended until such time as it is satisfied, acting reasonably, that such breach or excess will not be repeated in the future.
8 Price Promise
8.1 M:Science will match or beat any price from a genuine like-for-like service provided that:
8.1.1 The price will not be lower than 2.2 pence per message
8.1.2 The competing product must a)be using IP delivery b)be using a UK source c)be VAT registered in the UK
8.1.3 The competing price is available to any customer and not subject to special terms and conditions