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
1. Ownership and Licensing.
2. Confidential Information.
3. Representations and Warranties.
5. Limitation of Liability.
6. Service Usage.
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
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.
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
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
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
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
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
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
6.5.1 The following message types must not be submitted via a
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
h. Any repeated message sent to more than 5 recipients.
6.5.2 The following message types can be submitted via a personal
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.
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
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.
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
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.
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
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 ClientÃ¢Âs 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.
8.1 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
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.
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.
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.
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
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
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.
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.