Terms and Conditions of Use
 

SMS Solutions provides a wide range of messaging systems.

Some systems are used by Schools, Clubs and Non Profit Organisations others by industry and business for marketing and Crisis Event Management.

SMS Solutions Ireland has consulted directly with the Office of The Data Protection Commissioner in relation to the exact requirements legislation and regulations place on both the Provider of an SMS service and the user of an SMS Service.

It is equally your responsibility and SMS Solutions Ireland responsibility to ensure the appropriate levels of security are in place for such systems e.g. some SMS providers do not use SSL which in some cases would be required for hosting sensitive data. Your data is secure with SSL.

For further information regarding BOTH OUR COLLECTIVE RESPONSIBILITIES to ensure compliance please visit:

Data Protection Office Web Site

Communications Regulations Commission Web Site

In addition to the above legal requirements it is a condition of use of the service that it is not used for any purpose construed with financial gain e.g. you can not promote any business what so ever using the service. You may not use it to promote voting of any kind nor the promotion and any service or matter of interest.

In addition please be conscious that members are paying for these messages and frivolous or irrelevant messaging will exclude you from using the service and may lead to further investigation. Please keep messages as short as possible.

We are confident that 99.99% of our users will use the system sensibly and to great effect, but abuse of any kind of the service will be taken very seriously and acted upon immediately.

You can not use this service unless you agree to these Terms & Conditions of use and that you agree to submit to the Jurisdiction of the Courts of Ireland.

SMS SOLUTIONS IRELAND MESSAGING AGREEMENT

CONTENTS
1. Ownership and Licensing.
2. Confidential Information.
3. Representations and Warranties.
4. Indemnification.
5. Limitation of Liability.
6. Service Usage.
7. Billing.
8. Termination.
9. Miscellaneous.

1. Ownership and Licensing.

1.1 Nothing in this Agreement is intended to effect an assignment by or to either Party of any intellectual property rights whether registered or unregistered or any applications for registration of such rights.

1.2 Nothing in this Agreement shall entitle one Party to use a logo or trademark or any intellectual property of the other Party, except as specifically set forth herein or with the prior express, written consent of SMS SOLUTIONS IRELAND.

1.3 Each Party agrees that all use by it of the other party's trade marks and brands inures to the benefit of the other party (including all related goodwill) and that nothing in this Agreement confers on either party any right of ownership in the other party's trade marks or brand which remain vested in the other party. For the avoidance of doubt: (a) in the case of SMS SOLUTIONS IRELAND, Client agrees that all intellectual property rights in the SMS SOLUTIONS IRELAND Services shall remain with SMS SOLUTIONS IRELAND and its licensors and except as expressly provided in this Agreement no rights or licenses, express or implied, are hereby granted Client in respect of the same; and in the case of Client, SMS SOLUTIONS IRELAND agrees that all intellectual property rights in the Client Site and the Client Elements shall remain with the Client and its licensors and except as expressly provided in this Agreement no rights or licenses, express or implied, are hereby granted SMS SOLUTIONS IRELAND in respect of the same.

2. Confidential Information.

All Confidential Information disclosed by either Party to the other Party, during the term of the Agreement and for a period of three (3) years thereafter, shall not be used by the receiving Party except in connection with the activities contemplated by this Agreement, shall be maintained in confidence by the receiving Party and shall not otherwise be disclosed by the receiving Party to any other person, firm or agency, governmental or private, without the prior written consent of the disclosing Party. The obligation of confidentiality and non-disclosure shall not apply to such portion of the Confidential Information which (a) is or becomes generally available to the public other than as a result of disclosure by the receiving Party or its employees, representatives or agents; or (b) becomes available to the receiving Party on a non-confidential basis from a third party (unrelated to the receiving Party) which is entitled to disclose it; or (c) was known to the receiving Party on a non-confidential basis prior to its disclosure to the receiving Party by the disclosing Party; or (d) is independently developed or generated by the receiving Party without use of Confidential Information of the disclosing Party; (e) is required to be disclosed by law or court order; provided that the Party required to disclose Confidential Information under this clause (e) shall provide reasonable advanced notice to the other Party and shall permit such Party to oppose or limit the scope of such disclosure. "Confidential Information" means information which the disclosing Party desires to protect against unrestricted disclosure or competitive use by the receiving Party and which is clearly identified as confidential to the receiving Party. Confidential Information includes, but is not limited to, information concerning business methods and rates, business plans, client information and information concerning the technology and know-how of a Party. Confidential Information may include proprietary or confidential information of third parties that have granted licenses to the disclosing Party.

3. Representations and Warranties.

3.1 REPRESENTATIONS AND WARRANTIES OF CLIENT.
Client represents and warrants that, (a) to the best of its knowledge, the Client Brand, the Client Content and the Web interface associated with the Service (collectively, the "Client Elements") do not and will not infringe or violate the intellectual property rights of any third party, (b) Client Content will not (i) violate any law or regulation; (ii) be defamatory, obscene, harmful to minors or child pornographic; or (iii) contain any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (c) it shall make no representation or warranty on behalf of SMS SOLUTIONS IRELAND to any Client User concerning the SMS SOLUTIONS IRELAND Services . SMS SOLUTIONS IRELAND sole remedy and Client's sole liability for breach by Client of the foregoing warranties shall be as set forth in Section 4 below.

3.2 REPRESENTATIONS AND WARRANTIES OF SMS SOLUTIONS IRELAND
SMS SOLUTIONS IRELAND represents and warrants that, (a) to the best of its knowledge, the SMS SOLUTIONS IRELAND Brand and the SMS SOLUTIONS IRELAND Content associated with the Service (collectively, the "SMS SOLUTIONS IRELAND Elements") do not and will not infringe or violate any intellectual property rights of any third party and (b) the SMS SOLUTIONS IRELAND Content will not (i) violate any law or regulation; (ii) be defamatory, obscene, harmful to minors or child pornographic; or (iii) contain any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Client's sole remedy and SMS SOLUTIONS IRELAND sole liability for breach by SMS SOLUTIONS IRELAND of the foregoing warranties shall be as set forth in Section 4 below.

3.3 DISCLAIMER.
OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ITS SERVICES, BRANDS, CONTENT OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA OR INFORMATION PROVIDED THROUGH ITS SERVICES AND NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SMS SOLUTIONS IRELAND SERVICES ARE PROVIDED "AS IS" AND SMS SOLUTIONS IRELAND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ITS SERVICES. SMS SOLUTIONS IRELAND AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE USE OF THE SMS SOLUTIONS IRELAND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DO SMS SOLUTIONS IRELAND OR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SMS SOLUTIONS IRELAND SERVICES.

4. Indemnification.

4.1 INDEMNIFICATION.
Each Party shall defend the other Party from and against all third party claims, suits and proceedings brought against such Party, and will pay all final judgments awarded or settlements entered into on such claims, to the extent such claim arises from a breach of its representations and warranties set forth in this Agreement with respect to Client or with respect to SMS SOLUTIONS IRELAND.

4.2 INDEMNIFICATION PROCEDURE.
As a condition of each Party's obligations under this Section, the Party to be indemnified hereunder agrees to (a) promptly notify the indemnifying Party in writing of any indemnifiable claim, and all threats, claims and proceedings related thereto, (b) give the indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at its expense, except that the indemnifying Party shall not enter into any settlement that imposes any executory obligation on the indemnified Party (beyond the payment of money in settlement of the claim) and does not unconditionally release the indemnified Party without the indemnified Party's prior written approval, and (c) co-operate fully with the indemnifying Party in defending or settling such claim at the indemnifying Party's expense. Each Party reserves the right, at its own expense, to participate in the defense of any claim subject to indemnification hereunder.

5. Limitation of Liability.

EXCEPT FOR ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 2 "CONFIDENTIAL INFORMATION" ABOVE, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY (WHETHER ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE) FOR AGGREGATE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE EXCEED ONE HUNDRED PERCENT (100%) OF THE TOTAL FEES ARISING HEREUNDER IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY'S NEGLIGENCE OR FRAUDULENT MISREPRESENTATION.
EXCEPT FOR ANY BREACH OF THE OBLIGATIONS IN SECTION 2 "CONFIDENTIAL INFORMATION" ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Service Usage.

6.1 SPAM, ABUSIVE OR INAPPROPRIATE CONTENT.
Client shall not under any circumstances transmit any message via SMS SOLUTIONS IRELAND which is (a) unsolicited, for example where the recipient has not explicitly requested the message or where the message or originator is as such that the sender cannot be easily identified; or (b) contains content that includes spyware, viruses, worms, trojan horses, adware or other malware, or exposes the recipient to such programs in an indirect way; or (c) contains content deemed illegal by IRISH law and/or the law of the recipient's country; or (d) is offensive, abusive, defamatory, threatening, indecent, menacing, misleading or discriminatory, or otherwise intended to cause distress, annoyance, inconvenience, worry or upset to the recipient; or (e) contains copyright works, trademarks or other intellectual property without the written permission of the rights holder; or (f) may bring the name of SMS SOLUTIONS IRELAND into disrepute.
If Client discovers that prohibited messages, as described above, have been submitted to SMS SOLUTIONS IRELAND then Client shall notify SMS SOLUTIONS IRELAND at the earliest possible opportunity and no later than 24 hours after discovery of the incident. If SMS SOLUTIONS IRELAND discovers that Client has transmitted prohibited messages, then SMS SOLUTIONS IRELAND shall notify Client at the earliest possible opportunity and no later than 24 hours after the discovery of the incident.
As a result of prohibited messages being transmitted by Client to SMS SOLUTIONS IRELAND, SMS SOLUTIONS IRELAND may, at its discretion, suspend Client's account or services temporarily until the matter is resolved to the satisfaction of SMS SOLUTIONS IRELAND, and in extreme cases, terminate Client's account and agreement. In the instance of fines being levied against SMS SOLUTIONS IRELAND as a result of prohibited messages being sent by Client, Client shall be liable to pay each fine in its entirety.

6.2 SECURITY AND PRIVACY.
Client shall be responsible for keeping account and connection credentials secure and private, for choosing passwords of strong enough complexity, and for implementing IP address based access controls where applicable. SMS SOLUTIONS IRELAND shall not be liable for any indirect, incidental, special or consequential damages arising from any intrusion of Client's online customer account or the unauthorized use of Client's credentials, including (without limitation) loss of profits, loss of revenue, or interrupted communications.
Client acknowledges that messages will be transmitted over the SMS SOLUTIONS IRELAND platform in an unencrypted format. SMS SOLUTIONS IRELAND may disclose any messages transmitted over the SMS SOLUTIONS IRELAND platform to the extent permitted by law to protect SMS SOLUTIONS IRELAND rights or property, including (without limitation) to protect the operation of the SMS SOLUTIONS IRELAND platform, or to comply with the law or regulatory enquiries or requirements.

6.3 HTTPSMS CLIENT REQUESTED POLLING FREQUENCY.
Client shall not poll for incoming delivery reports or incoming messages more frequently than once every 10 seconds, unless the response of the previous poll contains the maximum 100 delivery reports or incoming messages.

6.4 SOURCE AND DESTINATION ADDRESSES.
Where applicable to do so, Client acknowledges that correct source address Type Of Number (TON) and Number Plan Indicator (NPI) settings, and correct source and destination address formatting, according to GSM specification, must be set for each message submitted to SMS SOLUTIONS IRELAND. Client acknowledges that failure to correctly set such settings and formatting may result in message delivery failure or the incorrect representation of the source address when it is displayed on the receiving device. SMS SOLUTIONS IRELAND shall not be responsible for checking or modifying above-mentioned settings or formatting.

6.5 PERSONAL ACCOUNTS
Personal Account clients acknowledge the following in consideration with all messages submitted to SMS SOLUTIONS IRELAND via any service username:
6.5.1 The following message types must not be submitted via a personal account:
a.Messages sent to unsolicited numbers (spam).
b.Messages directly promoting any service whatsoever.
c.Messages related to premium rate shortcode or premium IVR numbers.
d.Messages related to adult services or adult chat.
e.Political messages that may be seen as defamatory to a currently standing or opposing political party.
f.Messages related to debt collection, or finance repayment reminders.
g.Corporate or personal bulk or batches, including (without limitation):
i.Batch messages to employees on behalf of their employer.
ii.General bulk messages to recipients who have opted-in to receive such messages.
h. Any repeated message sent to more than 5 recipients.

6.5.2 The following message types can be submitted via a personal account:
a.Person-to-person messaging where a human uniquely generates the content of each message. Examples: mobile to mobile personal messaging or consumer websites offering personal web to sms to friends and family.

6.6 ABUSE
SMS SOLUTIONS IRELAND shall make available certain services to Client. A "Services" section in Client's online customer account shall describe the only acceptable uses of each service by Client. Where a service is accompanied by documentation or a specification, Client agrees that use of the service shall be restricted to the confines of that documentation or specification. Where a service is accompanied by software, either provided by download to Client to operate locally or hosted online by SMS SOLUTIONS IRELAND, Client agrees that use of the service shall be restricted to the confines of the provided software only and that they shall not modify or circumvent, or seek to modify or circumvent, the provided software in any way. Only SMS SOLUTIONS IRELAND shall define what constitutes the abuse of a service, and shall notify Client if it believes abuse of a service is taking, or has taken, place. An abused service shall be deactivated until Client resolves the incident to the satisfaction of SMS SOLUTIONS IRELAND.

ANY ATTEMPT BY CLIENT TO INFLUENCE THEIR ACCOUNT IN ORDER TO ACHIEVE GAIN TO WHICH THEY ARE NOT ENTITLED, INCLUDING BUT NOT LIMITED TO EXPLOITING UNDOCUMENTED FEATURES OF AN ACCOUNT OR SERVICE, SHALL RESULT IN THE IMMEDIATE SUSPENSION OF CLIENT'S ACCOUNT. CLIENT IS LIABLE TO REPAY SMS SOLUTIONS IRELAND FOR THE FULL AMOUNT OF THE VALUE OF ANY IMPROPER GAIN, WHICH SHALL BE DETERMINED BY SMS SOLUTIONS IRELAND.

7. Billing.

7.1 CHARGES.
Client shall pay SMS SOLUTIONS IRELAND at the applicable rate (without limitation): a) our charges for all submitted messages using any delivery method irrespective of message delivery status, b) our charges for any submitted HLR Lookup queries, c) any service setup fees or recurring service fees, d) any applicable payment processor transaction fees, and e) any applicable Value Added Tax.

7.2 PRE-PAYMENT.
All charges are payable in advance and Client cannot use the SMS SOLUTIONS IRELAND service until Client's payment has been received. Client shall pay SMS SOLUTIONS IRELAND by bank transfer or cheque or credit card. Other payment methods may be accepted at the sole discretion of SMS SOLUTIONS IRELAND on a case-by-case basis.

7.3 RECEIVED PAYMENTS.
In the case of payment by bank transfer, payment shall be deemed to have been received as soon as SMS SOLUTIONS IRELAND has confirmed that the correct amount has been deposited in the agreed currency in the agreed SMS SOLUTIONS IRELAND bank account. Client must allow reasonable time for payments to be received and any anti-fraud checks to be carried out. SMS SOLUTIONS IRELAND shall notify Client by email once a payment has been received.

7.4 PAYMENT PROVIDER NOTIFICATIONS.
Any notifications of payment authorization received by Client from payment providers including (without limitation): "PayPal", "Google Checkout", or "WorldPay" shall not indicate a received payment. Acceptance of a Client transaction is at the sole discretion of SMS SOLUTIONS IRELAND.

7.5 PAYMENT TRANSACTION FEES.
Client shall pay any applicable transaction or currency exchange fees levied by the Client's bank, Client's payment partner, or any intermediate banks or financial institutions, that are incurred when making a payment to SMS SOLUTIONS IRELAND.

7.6 PAYMENT PROVIDER PROCESSING FEES.
SMS SOLUTIONS IRELAND reserves the right to charge processing fees on payments that are made via payment providers including (without limitation); "PayPal", "Google Checkout", or "WorldPay". Client shall be notified of any processing fees during the payment process and shall be asked to confirm the total amount to be charged before any payment is submitted. Once a payment has been submitted to a payment provider, Client should be notified of the total amount to be authorized by email, from the payment provider. Note that this authorization email is outside of the control of SMS SOLUTIONS IRELAND and therefore SMS SOLUTIONS IRELAND cannot guarantee its delivery to Client. Only the total payment amount prior to any processing fees or applicable taxes shall be credited to Client's balance with SMS SOLUTIONS IRELAND. Processing fees shall not appear as an item or as part of the total or sub-total in any invoice or balance sheet produced by SMS SOLUTIONS IRELAND. An invoice marked as "Paid" shall be automatically generated when a "PayPal", "Google Checkout", or "WorldPay" payment completes. This invoice may be downloaded from the Billing section within the online customer account.

7.7 PAYMENT BY BANK TRANSFER.
Payment by bank transfer must be initiated by the creation of an invoice. An invoice may be created by SMS SOLUTIONS IRELAND or Client and in both cases, it must be paid within 7 (seven) days of date of the invoice, unless otherwise agreed. Failure to pay any amount when due shall constitute a breach of these terms. A payment reference shall be included in the invoice that must be quoted in the payment transfer details when payment is made. SMS SOLUTIONS IRELAND bank account details are included on every invoice and it is the responsibility of Client to pay to the correct bank account matching the agreed currency.

7.8 CLIENT'S PAYMENT RESPONSIBILITY.
If payment is made via "PayPal", "Google Checkout", or "WorldPay" and SMS SOLUTIONS IRELAND does not receive funds from the credit card issuer or payment provider, Client is responsible for paying all amounts due to SMS SOLUTIONS IRELAND, on demand. Client should refer to agreement with Client's credit card issuer to view rights and obligations as a cardholder.

7.9 FREE TRIALS AND TESTING CREDIT.
At the discretion of SMS SOLUTIONS IRELAND, free trial periods or testing credit may be issued for which no charges shall apply. Such free trial periods and any testing credit is intended for Client to test the capabilities of the SMS SOLUTIONS IRELAND service. During such periods, all these terms apply.

7.10 PAYMENT CURRENCY.
SMS SOLUTIONS IRELAND charge in Euro (EUR). SMS SOLUTIONS IRELAND is not responsible for any unfavorable currency exchange rates or charges levied by Client's credit card issuer.

7.11 CURRENCY BALANCE.
Payments received from Client shall be deposited as sms credits or as a currency balance in either a) Euro if "Ireland" is selected as the account country during account creation, or b) Euro (EUR) if any country other than "Ireland" is selected as the account country during account creation. All charges shall be deducted from this balance in the same currency. Every service on an account shall deduct charges from the same balance.

7.12 NO RIGHT TO EARN INTEREST.
Client shall not be entitled to earn interest on any currency balance held with SMS SOLUTIONS IRELAND.

7.13 TAXES.
Unless otherwise stated, all charges exclude taxes, including (without limitation) sales, value-added, excise, or other taxes and duties including penalties and interest. Client shall be liable for, and must reimburse SMS SOLUTIONS IRELAND for all taxes imposed in connection with or arising from the provision of any service (other than those assessed on SMS SOLUTIONS IRELAND's net income or capital gains) . Client shall provide SMS SOLUTIONS IRELAND with sufficient information to enable the timely payment of any applicable taxes. The sum payable by Client upon which any taxes are based shall be increased to the extent necessary to ensure that, after the deduction or withholding of any taxes, SMS SOLUTIONS IRELAND actually receive and retain, free from liability for such taxes, a net amount equal to the amount SMS SOLUTIONS IRELAND would have received and retained in the absence of such taxes.

7.14 CREDIT BALANCE EXPIRY.
Client shall use deposited funds within 365 days from the date that payment was received by SMS SOLUTIONS IRELAND. SMS SOLUTIONS IRELAND may extend this period on a case-by-case basis at its sole discretion.

7.15 MESSAGE CHARGES
SMS SOLUTIONS IRELAND charge for each submitted message consisting of up to 140 bytes (160 ordinary characters) of payload data, after any applicable GSM encoding has been performed. Messages containing more than 140 bytes of payload data (160 ordinary characters), after any applicable GSM encoding, shall be automatically split and concatenated by SMS SOLUTIONS IRELAND, and each resulting part shall be charged for as a separate message. SMS SOLUTIONS IRELAND charge variable message rates based on the destination network that a message is sent to. Destination network shall be determined by Mobile Number Portability checking wherever possible, and in all other cases shall be determined by the prefix as recorded by the national numbering plan for said destination country. SMS SOLUTIONS IRELAND makes no guarantee as to the accuracy of Mobile Number Portability data, or to the type of destination network determination that shall be used when charging for messages submitted by Client. Message charges shall be deducted from Client's credit balance immediately upon message submission and all charges shall be final. Current message rates may be viewed from within the SMS SOLUTIONS IRELAND online customer account.

7.16 PRICING AND COVERAGE CHANGES.
From time to time SMS SOLUTIONS IRELAND shall issue changes to Client's message pricing and coverage, where changes can include: a) the addition of destination networks, b) the removal of destination networks, or c) the modification of price of destination networks. Such changes shall be communicated via email to Client's billing contact(s), or primary contact(s) if no billing contact(s) is/are available, and shall be effective immediately. Pricing and coverage changes shall be considered as communicated to Client at the time the email is recorded as sent by SMS SOLUTIONS IRELAND. SMS SOLUTIONS IRELAND shall not be liable for any indirect, incidental, special or consequential damages arising from pricing and coverage changes, including (without limitation) loss of profits, revenue, or interrupted communications, even if Client has not received the pricing and coverage changes communication.

7.17 CREDIT LIMITS.
At its sole discretion, SMS SOLUTIONS IRELAND may extend to Client a credit limit, allowing the currency balance of Client's account to fall below zero and therefore become negative. Credit limits are provided under the following terms, unless explicitly agreed otherwise: a) Every payment made by Client shall return Client's account to a positive currency balance, b) Client is not permitted to operate Client's account with a negative currency balance for more than 30 consecutive days, c) Client must return Client's currency balance to zero or a positive amount upon request from SMS SOLUTIONS IRELAND within 7 days.

7.18 OVERDUE PAYMENTS.
Where the overdue invoice only consists in part of a negative currency balance on Client's account, SMS SOLUTIONS IRELAND shall not charge interest on the total negative amount and not on any prepayment part. SMS SOLUTIONS IRELAND shall clearly state the payment terms on all invoices issued to Client. Where the payment term is "Immediate", the invoice shall be considered overdue if payment has not been received by SMS SOLUTIONS IRELAND within 7 days. Details of invoices for which payment has not yet been received shall be made available by SMS SOLUTIONS IRELAND to Client in the Billing section of Client's online customer account.

7.19 MESSAGE STATISTICS.
SMS SOLUTIONS IRELAND shall record the number of messages successfully submitted by Client each day from 00:00:00 up until and including 23:59:59 IRISH time (GMT + 0 or GMT + 1 when observing BST), along with the associated destination country, destination network, and charged price. Statistics for the previous day shall be verified automatically each night to ensure a) that each submitted message has been assigned a unique identification number, and b) that each submitted message has been successfully assigned to an outgoing connection for onward delivery. Client shall not be charged for any message that does not satisfy both of the above-mentioned criteria. Long messages (exceeding 140 bytes after GSM encoding, if necessary) that are automatically split and concatenated by SMS SOLUTIONS IRELAND shall be recorded as a single message where the charge reflects the sum of the charges for each resulting message part, in order to bring to the attention of Client that long messages have been submitted to SMS SOLUTIONS IRELAND.

7.20 MESSAGE STATISTICS DISPUTES.
In the event of an imbalance between message statistics recorded by Client and messages statistics recorded by SMS SOLUTIONS IRELAND, Client shall notify SMS SOLUTIONS IRELAND within 7 days of the date that the imbalance refers to. SMS SOLUTIONS IRELAND shall investigate each reported imbalance and shall notify Client within 7 days of receiving the notification from Client, as to whether an adjustment to Clientâ™s currency balance is necessary. SMS SOLUTIONS IRELAND reserves the right to decline to investigate a message statistics imbalance reported after 7 days of the date that the imbalance refers to.

8. Termination.

8.1 EARLY TERMINATION.
The Agreement may be terminated by either Party in the event that the other Party has breached any material obligation under this Agreement (unless that breach arises from any of the special circumstances set out in Section 9.6 of this Agreement), and such breach is not remedied within sixty (60) days for non-monetary breaches or within five (5) days for monetary breaches of the breaching Party's receipt of the non-breaching Party's written notice specifying the breach in reasonable detail and demanding its cure. Except as explicitly set forth elsewhere in this Agreement, the foregoing rights of termination shall be in addition to and not in lieu of any other legal or equitable remedies that the terminating Party may have.

8.2 EFFECT OF TERMINATION.
7.21 Return of Confidential Information. Within thirty (30) days following any expiration or termination of the Agreement, each Party shall return the Confidential Information of the other Party and shall delete all copies of such Confidential Information from any computer storage; provided that neither Party will be required to delete copies of Confidential Information that are included within a backup or archival copy of such Party's computer systems made in the ordinary course of business.

8.2.2 Survival. The provisions of the Sections of the Agreement entitled Ownership of Technology, Confidential Information, Representations and Warranties, Indemnification, Limitation of Liability, Effect of Termination and Miscellaneous, as well as any accrued payment obligations, shall survive any termination or expiration of this Agreement.

9. Miscellaneous.

9.1 RELATIONSHIP OF THE PARTIES.
Notwithstanding any provision hereof, for all purposes of the Agreement each Party shall be and act as an independent contractor and not as an employee, employer, partner, joint venturer or agent of the other and shall not bind nor attempt to bind the other to any contract, liability or obligation of any kind.

9.2 NON-SOLICITATION.
Both Parties agree that, during the term of this Agreement and for two (2) years after its termination, they will not directly or indirectly employ or offer employment to any person who was employed by the other Party unless such person shall have ceased to be employed by the respective Party for at least six (6) months.

9.3 ASSIGNMENT.
Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement upon notice to the other Party in connection with a merger, reorganisation, consolidation, re-incorporation, or sale of all or substantially all assets or all the capital stock of the Party. This Agreement shall be binding upon and inure to the benefit of any successors and assigns.


9.4 AMENDMENT OR MODIFICATIONS.
Any amendments or modification of any provision hereof must be in writing, dated, and communicated to both Parties.

9.5 NOTICES.
Any communication, consent or notice required or permitted by the Agreement to be given to the other Party shall be in writing and shall be deemed given upon (a) 72 hours from the date of posting in the case of pre-paid recorded delivery or registered post (b) delivery by a nationally recognised express delivery service (or by an internationally recognised express delivery service in the case of an address for service outside of the Ireland or (c) receiving an email to an email address registered on Client's online customer account from a SMS SOLUTIONS IRELAND email address.

9.6 FORCE MAJEURE.
Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, telecommunications failures (including any systemic Internet failures and any interruptions in services of Internet or mobile service providers or operators), transportation delays, earthquakes, fires, floods, labour disturbances, riots or wars.

9.7 WAIVER.
No failure by either Party to insist upon the strict performance of any covenant, duty, agreement or condition hereof or to exercise any right or remedy consequent upon a breach hereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.

9.8 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.

9.9 GOVERNING LAW AND JURISDICTION.
Each Party irrevocably agrees to submit to the law and non-exclusive jurisdiction of the courts of Ireland over any claim or matter arising under or in connection with the Agreement or the legal relationships established by the Agreement.

9.10 SEVERABILITY.
If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible and (b) such invalidity illegality or un-enforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.