In this document, unless otherwise stated or the context requires:
(a) All defined and capitalised terms shall have the same meanings stated in Immervox’s Cloud specific standard terms and conditions set out in the Schedule to this document (the “Specific Terms”) or The Standard Conditions (as defined in the Specific Terms); and
(b) The terms of this document are subject to the Specific Terms and the Standard Conditions.
(c) Immervox offer a range of products and services within their Cloud Product Range. Individual Customers may take a unique and bespoke configuration of these services. Consequently, this document by necessity contains a generic overview of the full range of products and services available. Not all the terms and conditions set out in this document will be applicable to all Customers.
(d) The Services to be provided under a Services Agreement will be specified in the Order Form completed by the Customer and accepted by Immervox. Immervox has no obligation to provide any Service set out or described in this document unless they have been specified in the Order Form and accepted by Immervox
1 SERVICE OVERVIEW AND SCOPE
1.1 Immervox’s Cloud Service provides a range of cloud based IP solutions including Cloud Back for Customer’s data, Desktop SMS services and Fax to Email.
1.2 Immervox works with a number of third party network and telecommunication partners to provide Customers with the optimum solution for their Cloud Service requirements.
1.3 The Service may include:
• Cloud Back Up
• Desktop SMS
• Fax to Email Services
2 MINIMUM TERM
2.1 A minimum term of 12 months applies to all Cloud Service products.
3 CLOUD BACK UP
3.1 Back up your private and critical data. The data is encrypted and stored offsite in UK based Tier 3 data centres.
3.2 Cloud Back up with Immervox is automated with daily and advanced backup schedules. 1 to 1000 workstations/devices and servers running different operating systems can be backed up and managed from a single console.
3.3 All data has high level AES 256 encryption as standard with further encryption during the file transfer and storage for complete peace of mind that your client records are protected from any attack and in keeping with your data protection policy and compliance.
3.4 All data has high level AES 256 encryption as standard with further encryption during file transfer and storage for complete peace of mind that your client records are protected from any attack and in keeping with your data protection policy and compliance.
3.5 This solution uses your existing internet connection to send the encrypted data to the Tier 3 data centres, with this in mind you will be pleased to hear that only the changes to the original files are backed up keeping the time and bandwidth required for each backup to a minimum.
3.6 It’s not about just having the information backed up, it’s about how quickly your recovery is. Every hour it takes to get your files and data restored is going to cost the business. This solution is designed to be easy and quick enough to be used in a crisis when all is lost, as well as when the individual user overwrites their Important document with a blank, turning this DR tool into something you never knew you needed in your everyday working.
3.7 Immervox will use reasonable endeavours to ensure that Cloud Back Up will have a 99.5% availability per calendar month. In the event that Immervox do not achieve this level of availability (subject to the terms and conditions set out in Section 1 of the Specific Terms), then Immervox will issue rebates as set out in the table below:
Cloud Back Up – service availability in a given Month Rebate (% of monthly fees)
Less than 99.5% and greater than or equal to 98% 12.5%
Less than 98% and greater than or equal to 95% 25%
Less than 95% 37.5%
3.8 The humble SMS Text message with its basic functionality is a great tool for businesses. Send a message with up to 160 characters to single or multiple Mobile numbers from a desktop program. With the ability to track your sends, replies and receive delivery reports.
3.9 Providing outstanding customer service is achieved through effective communication. Keep your clients updated on their orders with a simple message with its progress and delivery details. Write and send one message for all customers to inform them of new products and promotions with the ability to track reply’s and capture new leads.
3.10 This tool on your Marketing team’s belt will add to the number of ways you can communicate your message to your target market. Using desktop access, you have the ability to send to multiple distribution lists and scheduled sends to improve your conversion rates.
3.11 Keep staff up to date with rota changes, praise good work, advise of new suppliers and products or quickly update on new processes and procedures. Our Technical consultants are on hand to assist with new and creative ways to use this great value communication method.
3.12 Each SMS message (max 160 characters) uses 1 credit. Credits are purchased in advance (min order of 500 credits). Once purchased, they remain on your account ready for up to 12 months. Alerts can be setup for when your credits get low.
3.13 Choose to have a single account of credits for selected staff to access or create multiple accounts to control use to different departments i.e. Marketing may need considerably more credits than your HR department.
4 FAX TO EMAIL
4.1 Send and receive faxes without a telephone line, fax machine or paper.
4.2 Fax to Email enables you to send and receive faxes from your computer/device, making it a great paperless solution. Fax to Email delivers incoming faxes directly to your email inbox as an attachment. The service can be set up with individual numbers allocated to each email address or alternatively a single number to multiple email addresses. For outbound faxes you can attach Adobe PDF or TIFF and JPEG image files. You may even be able to keep your existing number or set up a new one.
4.3 Many businesses are finding that although they vary rarely use Fax, as it’s much slower than sending an email, because it involves printing a piece of paper and walking to the fax machine (hidden somewhere on the premises). Some businesses have customers, suppliers or processes which just can’t be moved to email when communicating certain information. Fax to Email is an eco-friendly, timesaving and fast solution which enables you to make improvements without it affecting the person or organisation who must retain faxing functionality.
4.4 Some businesses are coming back to fax, using this method as a new marketing tool. You can also search for sent faxes and junk faxes can now be quickly filed in “trash” without wasting paper, improving your green credentials.
4.5 By receiving faxes electronically you can manage and File your communications in line with your Unified Communications strategy. Choose to either file the email in your email inbox or the attached PDF into your CRM or network storage facility.
4.6 Immervox manage your solution should you ever need to add or make changes to the fax numbers or their destination email address. You are not charged to receive each fax to email, instead you pay a small fixed monthly fee.
4.7 The Fax to Email Outbound Tariff is annexed to this Schedule.
4.8 Porting of Fax Numbers is available (subject to porting agreements existing between the gaining and losing providers)
4.9 Only geographic BT numbers can be ported to your Fax to Email service. A copy of your most recent BT is required to support your porting order.
4.10 In some instances, it may not be possible to port your number if it has been transferred between suppliers previously. Porting charges may still apply in the event a port fails.
4.11 Please note, any services hosted on your BT line will cease once your number porting order has been raised. A porting charge of £30 applies per single analogue line.
4.12 Connection charge of £4.95 per number
4.13 Rental charge of £4.95 per number, per month.
4.14 Inbound faxes are free
4.15 Charges apply for outbound faxes – please see our Fax to Email call tariff for more information
4.16 All pricing excludes VAT
SPECIFIC TERMS & CONDITIONS
SECTION 1 - CLOUD BACKUP
1.1 “Business Day” means any day within the year, excluding weekends (Saturday, Sunday) and public holidays.
1.2 "Immervox" "We" "Us" means Immervox Ltd.
1.3 “Immervox Cloud Backup Platform” means the backup server platform operated by Immervox from its partner’s data centre
1.4 "You" means the Customer.
1.5 "Queries" means all reports of software or service faults, queries, requests for service or any other enquiries from Customer and Customer Customers in relation to the software and its operation.
1.6 "The Software" means all or any computer programs sold or leased by Immervox to You, whether such programs are produced by Immervox, or are sold or leased as distributor or agent of a third party whether by licence or through the public domain.
1.7 “The Storage” means any electronic data storage provided offsite from the Customer’s premises.
1.8 “Immervox Cloud BackupSoftware” means the client software installed on the customers Desktop and Servers, including Plug-ins for Microsoft Exchange, Microsoft SQL and MySQL. Also includes software for the Onsite Backup Option.
1.9 “Assisted Restore Service” shall mean an ad hoc service provided by Immervox to deliver backup data to the client via physical disk or tape shipped to the Customer’s premises.
1.10 "The Internet" means the worldwide collection of equipment and systems that include but is not restricted to access to items of service ("the Internet Service").
1.11 1.6. "The Services" means the Immervox Cloud BackupSolution as outlined in the Description of Services below.
2 DESCRIPTION OF SERVICES
2.1 The "Services" means the service whereby the Customer will be offered the use of the Software and Storage to securely backup and retrieve their data online via any TCP/IP connection to the Immervox Cloud Backup storage platform, where such backed up data will be stored.
2.2 The Customer can then select and schedule their backup set. The Customer can restore their data whilst online. After the initial backup, incremental backups are carried out at intervals defined by the customer in the Immervox Cloud Backupweb management interface, the default is 1 day.
2.3 The Customer agrees to pay the charges raised by Immervox for the Service in relation to the volume of data held on the Storage platform, including backup sets and all incremental changes, as well for as any backup client licenses in use during any invoice period.
2.4 Where the Customer has ordered the Service against a Quotation supplied by Immervox that states a Storage Quota, the Customer may not exceed the Customer’s purchased Storage Quota allowance (as shown on the Customer’s Quotation or the Cloud Backup web management interface). Should the Customer attempt a new backup for which there is insufficient Storage Quota available and the customer has appropriate retention rules configured then the system will automatically delete the oldest backups until sufficient space is available. If the customer does not have appropriate retention rules configured or the new backup exceeds the total Quota, then the backup will fail. The customer will receive a warning email as they approach the limits of the Storage Quota, and again once the limit has been reached.
3.1 Immervox grants to Customers a non-exclusive, non-transferrable right and sub-licence to use the Software for the duration of this agreement;
3.2 Immervox may grant to potential Customers a non-exclusive, non-transferable right and sub-licence to use the Immervox Cloud Backup Software, free of charge, for a thirty day trial period ("trial period") for evaluation purposes only, provided that such potential Customers shall not allow the use thereof by more than fifty Desktop& Laptop (D&L) seats or 10 Server Edition (SE) seats and a maximum total of 50GB of allocated data storage during the trial period,.
4 LICENSE RESTRICTIONS
4.1 The Customer shall not, for the duration of this Agreement, nor at any time after its termination for any reason whatsoever, itself or through any third party, and whether directly or indirectly:
4.1.1 copy, reproduce, translate, adapt, vary, modify, encumber or in any other way deal with the Immervox Cloud Backup Software or any portion thereof other than so far is necessary and ancillary to the performance of the Services or the exercise by the Customer of any other rights afforded to it under this Agreement;
4.1.2 de-compile, disassemble or reverse engineer the Immervox Cloud Backup Software or any portion thereof, except to the extent permitted by applicable law (notwithstanding any contractual prohibition);
4.1.3 use the Immervox Cloud Backup Software and/or the Trademarks and/or provide the Services except under the terms and conditions contained in this Agreement; and
4.1.4 remove any proprietary notices or labels or Trademarks on the Immervox Cloud Backup Software or the User Documentation
4.2 In addition, unless otherwise indicated, nothing in this Agreement grants the Customer any right to the source code of the Immervox Cloud Backup Software.
5 OUR OBLIGATIONS
5.1 When the Services are operational, and connected to the Internet, We shall make all reasonable efforts to ensure that the Services are maintained and are fully available to You 24 hours x 365 days per year. Notwithstanding the foregoing, in the event that in any calendar month following commencement of the Services, We are unable to provide 99.5% connectivity to and available Storage (calculated on a monthly basis) (hereinafter "the Failure") You shall be entitled to claim Service Credits as per the Immervox Cloud Backup Service Level Agreement.
6.1 The charges for the Service as shown on Your order form or price list are non-refundable and apply for a minimum period of one (1) month from date on which the Service commences. . You must pay monthly via direct debit unless otherwise stated. All charges are exclusive of VAT. Where any payment from You remains due and unpaid We will be entitled to charge interest at 5% above National Westminster PLC base rate for the time
6.3 being accrued daily. You may not withhold payment for the Services by reason of any outstanding claim under this or any other agreement with Us.
6.4 All payments are non-refundable and non-returnable. You agree to pay Us by Direct Debit if available. If Direct Debit is not available You agree to pay by BACS or Cheque on presentation of our invoice. Any delay in payment will entitle Us at our sole election to suspend the service and/or to apply liquidated damages. Save as allowed by law, payment due for services provided shall not be withheld on grounds that any claim is outstanding.
7 RESTRICTION OF LIABILITY
7.1 You hereby confirm that You have not relied upon any representation made by Us or on our behalf which has induced You to enter into this agreement except as is provided herein. If We delay or fail to perform our obligations under this agreement our maximum liability is limited to the amount already paid by You under this agreement for the Services (excluding VAT or other tax and the cost of any equipment provided under this agreement and which shall be owned
7.2 or controlled by You). Subject to this, We shall not be liable to You for any claims loss damage (including consequential loss or damage) of whatsoever nature and howsoever caused except as is provided by statute.
7.3 Except for the terms of this agreement (or as required by law) no other conditions warranties terms representations and undertakings apply. If We are prevented from making use of the Services for any reason beyond our reasonable control, We may suspend or delay delivery of the Services and shall not be held responsible or liable to You for our inability to deliver them.
8 UNLAWFUL USE OF THE SERVICE
8.1 You warrant and undertake that neither You nor any person authorised by You will knowingly publish or transmit over the Internet nor store on the Immervox Cloud Backup Storage Platform any material that is obscene, threatening, defamatory or likely to cause offence or which in any way infringes the intellectual property rights of another party. You hereby agree to indemnify and hold Us harmless from any and all demands losses claims proceedings damages costs and expenses including legal fees arising out of any claim against Us in relation to such materials.
9.1 This Agreement shall commence on the Commencement Date and shall, subject to the other provisions hereof, continue for a minimum period of twelve (12) months ("initial period"), whereafter it shall be automatically renewed for a further twelve (12) months unless notice of termination in writing is given by you not less than one hundred (100) days prior to the end of any twelve (12) month period.;
9.1.1 notice of termination in writing is given by Us not less than thirty (30) days prior to the date that the provision of Services by Immervox shall cease, or;
9.1.2 notice of termination in writing is given by you not less than one hundred (100) days prior to the date that the Services shall cease prior to the next invoice date that would otherwise have been due.
10.1 We reserve the right to terminate this Agreement at any time if You become the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these) or if it otherwise appears to Us that You are insolvent and unable to pay Your debts as they fall due. We shall also be entitled to terminate this Agreement in the event that You commit a material breach of this Agreement and fail to remedy the same within 30 days of receipt of written notice from Us. Any termination shall be without prejudice to our other rights or to Your liability for amounts payable under this agreement.
11.1 This agreement contains all the terms agreed between Us and supersedes any previous communications representations or agreement by either party including any terms and conditions on Your order.
11.2 No modification of this agreement will be accepted unless made in writing and signed by one of Immervox' Directors. Our acceptance will form a contract subject only to these Terms and Conditions.
11.3 We may assign our rights and obligations under this agreement. You may only assign Your rights without
11.4 further payment only with our written consent (not to be unreasonably withheld) where the assignment is to a parent affiliate or subsidiary corporation purchasing all or substantially all Your assets or where You merge with another corporate entity or partnership providing in each case the proposed assignee is not in our reasonable opinion a competitor.
11.5 The waiver by either party of any breach of these Terms and Conditions will not prevent the subsequent enforcement thereof and shall not be deemed a waiver of any subsequent breach.
11.6 If any part of this agreement is adjudged by a court of competent jurisdiction to be invalid such judgment shall not affect the remainder of this agreement which shall remain in full force and effect.
11.7 Notices may be given by facsimile, first class mail or by delivery to the address shown on our website.
11.8 English Law shall govern this Agreement and the forum for settling any dispute shall be the English Court.
12 SERVICE LEVEL PROVISIONS
12.1 Immervox will use all reasonable efforts to ensure that the Immervox MyCloud Backup Platform is available for a minimum of 99.5% of the time on a monthly basis.
12.2 The Immervox Cloud Backup Platform will be deemed unavailable if it cannot be reached from the Hosting Centre Infrastructure (*excludes scheduled down time for operating systems patches and updates with prior notification to the Customer).
12.3 The Immervox Cloud Backup Platform shall not be deemed unavailable (without limitation) in the event of any of the following:
12.3.1 Failure of the Customer connection to the Immervox Hosting Centre Infrastructure (e.g. via the public internet or Customer's own network);
12.3.2 Malfunction of Customer's or customer's own computing systems upon which Immervox Cloud Backup client software is installed (including hardware, operating system or local software), including non availability due to configuration issues;
12.3.3 Malfunction of Immervox Cloud Backup client software (Immervox would commit to resolve issues as outlined in section 4);
12.3.4 Malfunction of service due either to incorrect installation or configuration of the Immervox Cloud Backup client software or use of the software on platforms not qualified by Immervox.
12.4 Immervox will use all reasonable endeavours to ensure that a failure of either the main, or mirror site, is recovered as detailed in the table below
Recovery time to re-establish full functionality and capacity at either the main or mirror site in the event of failure 5 Business Days
12.5 Performance against target service levels will be reviewed and agreed on a quarterly basis by Immervox and Customer account management.
12.6 If Immervox fails to achieve the Service Level Targets specified for the Immervox Cloud Backup Service above, and if Customer requests Immervox to do so within five (5) Business Days after the target is not met, Immervox will issue to the Customer a credit rebate detailed in the table below.
SERVICE AVAILABILITY IN A GIVEN MONTH REBATE (% OF MONTHLY RECURRING CHARGE)
Less than 99.5% and greater than or equal to 98.0% 12.5
Less than 98.0% and greater than or equal to 95.0% 25
Less than 95.0% 37.5
12.7 The monthly recurring charges used to calculate the Immervox Service credits will be the total monthly recurring charges (MRCs) relating to for the affected Service.
12.8 The credits will be paid as discounts to the MRCs for the billing period following Immervox's approval of the Customer's credit request.
13.2 Immervox provides a service response Monday – Sunday, 24 hours a day.
13.3 Upon request Immervox may provide the Assisted Restore Service to provide bulk delivery of backup data to the client via physical disk or tape. This service is available on a 8x5x4 hour response basis. Immervox will download data and deliver it to site on a best endeavours basis. Lead time will be dependent upon amount of data and geographic location of the customer’s premises. Additional charges will apply for Assisted Restore. These will be quoted upon request subject to the client’s requirements.
14 IMMERVOX CLOUD BACKUP SERVICE SOFTWARE BUG FIXES AND PATCH UPGRADES
14.1 Immervox Cloud Backup Service Software Bugs Fixes
14.1.1 In the event that a customer identifies, or suspects, a bug or non-conformance in the Immervox Cloud Backup Software, this is to be reported to Immervox via email.
14.1.2 Immervox will work with the Customer to confirm that non availability of the service is due to a bug or non-conformance. Immervox will use all best endeavours to rectify any bug or non-conformance of the software and provide an upgrade/patched version of the software within a reasonable time period.
14.1.3 In the event that the existence of a bug within the Immervox Cloud Backup Software is confirmed then Immervox will notify the Customer's technical contacts by e-mail within 48 hours stating the nature of the bug, or non-conformance, platforms affected, any actions which should be taken by the Customer, and estimated time to rectify the bug or non-conformance.
15 PROVISION OF SERVICES
15.1 Immervox's obligations, in terms of the agreement and the Service Level Agreement, to resolve queries, shall be performed remotely via the Internet unless otherwise explicitly agreed.
16 FORCE MAJEURE
16.1 If Immervox is prevented from carrying out any of its service level undertakings as a result of an act of God, strikes, fire, riot, war (whether declared or not), embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, any court order, any requirements of any authority or other competent local authority, or any other circumstances whatsoever which are not within the reasonable control of Immervox, then Immervox will be deemed to have been relieved of the performance of these service level under takings to the extent that and for so long as it is so prevented from performing, this agreement will be deemed to have been suspended to such extent and for the period concerned.
16.2 Immervox shall in addition, not be liable for any loss, liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature that howsoever arising where Immervox's failure to meet the service level or otherwise perform any of the services.
SECTION 2 – DESKTOP SMS
1 ACCEPTANCE OF THESE TERMS AND CONDITIONS
1.1 By registering for, or using any of our services you agree that you have read, understand and are bound by these terms, regardless of how you registered for or use the services.
1.2 Without limiting the above, we may ask you to accept any or all of the terms when you first register for, or start using a service.
1.3 If you do not want to be bound by the terms, you must not register for, or use a service.
1.4 If you concluded a written contract with us, you will also be bound by these terms. However, to the extent that there is a conflict between the written contract and these terms, the written contract will prevail.
2 DEFINITIONS AND INTERPRETATION
In these terms –
2.1 “Agreement” means the agreement between us and you that comes about by your acceptance of these terms as set out in the section headed “Introduction” above;
2.2 “Immervox” means Immervox Limited.
2.3 “Immervox website” means the websites that we own and operate including www.immervox.com including any page, part or element thereof;
2.4 “Content” includes any information, data, text, music, sound, graphics, video, messages, hyperlinks or tags;
2.5 “Downloads” means any software, data, application, code, files or content that you retrieve, view or download when using a service charges means the amounts we charge you for rendering our services, including (without limitation) our transaction or subscription charges, and any third party charges we incur intellectual property rights includes (without limitation) any and all rights, title and interest (whether registered or not) in and to any intellectual property, copyright, related rights, patents, utility models, trade marks, trade names, service marks, designs, logos, devices, know-how, trade secrets and inventions (whether patentable or not), goodwill, source code, meta tags, databases, text, content, graphics, icons, and hyperlinks and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such rights which are all as such protected by domestic and international legislation and treaties from infringement; service means any service, product, goods, downloads, content, program or website that we may provide from time to time; operator means mobile network operators and mobile virtual network operators; terms means the terms and conditions set out herein, and includes any additional terms (as defined in the section headed “Additional Terms” below); use includes (without limitation) accessing, retrieving, downloading, logging on to or viewing a service; VAT means value-added tax; we, us and our means Immervox and includes our successors in title and/or assigns; you and your means any natural person who registers for, or uses any of our services and/or any legal entity on whose behalf any of our services are registered for or used;
2.6 The singular includes the plural and vice versa; and
2.7 Headings are only for reference and not interpretation. Hyperlinks in these terms are part of these terms under section 11(3) of the ECT Act. Any hyperlinks which are not operational will not in any way detract from the validity and interpretation of these terms.
3 CHANGES TO TERMS
3.1 We may change any or all of the terms including (without limitation) the charges at any time without notice to you.
3.2 Any changes will become effective when we publish them on the Immervox website.
3.3 You must check the Immervox website and the terms regularly for changes.
3.4 By continuing to use our services after we make the changes, you agree to be bound by the changed terms and charges.
3.5 If you do not accept the changed terms or charges, you must stop using the service (see the section headed “Ending a service” below).
4 ADDITIONAL TERMS
4.1 Some of our websites or documents may contain additional rules, guidelines, charges or terms and conditions (additional terms).
4.2 By subscribing to or using our services relating to those websites or documents, you agree to be bound by, and comply with those additional terms.
4.3 These terms apply to the extent that there is a conflict between these terms and the additional terms.
5 SERVICES – GENERAL
5.1 We always try to provide the services to the best of our ability.
5.2 We may suspend, interrupt, change or end any service for any reason without notice.
5.3 We will try to widely publicise changes to the services which apply generally.
5.4 We may also give you advance notice of any interruption of a service due to maintenance.
6 LIMITATION OF LIABILITY AND INDEMNITY
6.1 In this section –
6.1.1 damages means all damages of whatever nature and includes (without limitation) all damages, loss, claims or costs, including (without limitation) loss of data, profits or custom, or business foregone whether -
· in contract, tort or otherwise;
· direct, indirect, special or consequential;
· foreseeable or not; and notification of the damages were given in advance or not.
6.1.2 uncontrollable events mean any circumstances beyond our reasonable control, including (without limitation) fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, or any act or omission on the part of a third party.
6.2 You subscribe to and use any service at your own risk.
6.3 Subject to the ECT Act, neither we nor our affiliates, employees, shareholders, agents or service providers are liable to you or any third party for any damages suffered by you or a third party howsoever arising, including (without limitation) any damages suffered by you due to our negligence, or the negligence of our affiliates, employees, shareholders, agents or service providers; your use of a service; any interruption of, or error in the service; our failure to fulfil our obligations as a result of uncontrollable events; or disclosure of your information.
6.4 If you suffer damages or are dissatisfied with a service your only remedy is to end the agreement or stop using the service (see the section headed “Ending a service” below).
6.5 You indemnify, us and our affiliates, employees, shareholders, agents and service providers, against all third party claims, damages and legal costs howsoever arising from or relating to -your breach of these terms; any claims made by third parties by your use of a service.
6.6 Despite anything to the contrary in these terms, we – provide all services “as is” and “as available”; and don’t warrant, represent or guarantee, whether expressly or by implication, that any service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights.
6.7 Without limiting the generality of the above, no service is fault-tolerant or is designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, including (without limitation) to use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which any failure could lead directly to death, personal injury, or severe physical or environmental damage (“high risk activities”). In addition to the other disclaimers and limitations contained within this agreement, we and our affiliates, shareholders, employees, agents and service providers specifically disclaim any express or implied warranty of fitness for high risk activities including emergency notification services.
6.8 You should not regard any information, ideas and opinions expressed on the Immervox website as professional advice or as our official opinion. Please get professional advice before you take any course of action related to the information, ideas or opinions expressed on the Immervox website.
6.9 Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so the above limitations or exclusions may not apply. In such jurisdictions, our liability (and the liability of our affiliates, employees, shareholders, agents, and service providers) shall be limited to the greatest extent permitted by applicable law.
7 THIRD PARTY GOODS AND SERVICES
7.1 In many cases, we provide the services of third parties, or our services in conjunction with those of third parties including (without limitation) network providers.
7.2 In those cases, the following conditions apply:
7.3 We provide such services subject to the terms, conditions and limitations imposed by those third parties.
7.4 If those third parties change, suspend or stop providing such services, we may similarly change, suspend or stop providing the services to you without notice. We may nevertheless try to provide such a service in another way or by using another third party.
7.5 You authorise us to provide any of your information to those third parties to the extent that it may be necessary to enable the third parties and ourselves to provide the services to you.
7.6 To the extent that there is a conflict between the third party’s terms and conditions and these terms, these terms prevail.
7.7 When you acquire goods, downloads or services from a third party through any of our services, you understand and agree that -
7.7.1 we are not a party to the contract between you and the third party;
7.7.2 we don’t have to monitor the third party service you use;
7.7.3 the third party will be responsible for all obligations under the contract including (without limitation) warranties or guarantees;
7.7.4 you must evaluate the goods, software or service and the applicable terms and conditions before acquiring the goods, software or service; and
7.7.5 you indemnify us against any damages (as defined in the section headed “Limitation of liability and indemnity” above) howsoever arising from your acquisition and use of the third party goods, software or service.
7.8 We may reject or refuse any third party service used by you in conjunction with our service.
8.1 Messages are deemed to have been delivered when we have delivered or sent the messages to the immediate destination that our software is programmed for, including SMTP servers, mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message.
8.2 Please note that, although we focus on providing extensive coverage aggregation services, third party network providers may choose from time to time to not be part of our networks or the networks of our service providers. This may result in messages not being delivered.
9 MOBILE-ORIGINATED (MO) AND PREMIUM RATE SERVICES – GENERAL
9.1 In addition to the other terms, this section applies if you use any of our Mobile-originated (MO) or Premium Rate services.
9.2 We collect MO messages and pass these on to you in the methods described by us.
9.3 You are responsible for content of the service, as well as the cost of all bearer charges to provide the content to your end client.
9.4 Please note that to ensure that we comply with industry codes of conduct, you must route all MT messages directly or indirectly associated with any of our hosted short codes, or other two-way services, via our messaging gateway. This will enable us to ensure that all premium rate, short code messaging services and other two-way services offer the required confirmation messages as stipulated by the various codes of practice and that such messages can be validated as having been submitted. We may end the service immediately without notice if you don’t comply.
9.5 MO messages are charged at an agreed rate. Please refer to the pricing pages on our website and/or your signed agreement with Immervox for the exact charge. These fees are subtracted real-time unless otherwise specified in a signed agreement with Immervox.
9.6 You must ensure all times that there are enough credits in your account to be subtracted by us for incoming messages from your account. We may end the service immediately without notice to you if you don’t have enough credits in your account at any time to be subtracted by us for charges owed to us.
9.7 You may also contact our Client Services Team for more clarity on the charges.
9.8 We will pay any revenue share due to you within 90 (ninety) days after we receive the relevant amount from the mobile network operator or third party involved.
9.9 Refer to the “Charges and Payment” section of this document.
9.10 If there are any differences between our records, your records or the mobile network operator / third party’s records, the records of the mobile network operator / third party are deemed to be correct and binding on us and you.
10 MOBILE-ORIGINATED (MO) OR PREMIUM RATE SERVICES – ADVERTISING GUIDELINES
10.1 In addition to the other terms, this section applies if you use any of our Mobile-originated (MO) or Premium Rate services.
10.2 In this section –
10.2.1 “advertisement” means any form of communication with your clients including (without limitation) advertisements, brochures and websites;
10.2.2 “charges” means network charges and premium charges;
10.2.3 “network charges” means the charges of the network service providers for use of their networks, e.g. SMS, MMS, USSD, GPRS; and
10.2.4 “a premium charge” means the content or value-added charges that you charge your clients for using your premium rate service.
10.3 This section sets out how you must advertise your services.
10.4 If you don’t advertise your service in the way set out in this section, we may –
10.4.1 withhold your share of the monthly revenue for that service (if any) until you comply; or
10.4.2 end the service if you fail to comply repeatedly.
10.5 All your advertisements must comply with the following rules:
10.5.1 The advertisements must state the charges of your service fully and correctly. For example -
10.5.2 The advertisement must state the charges inclusive of VAT.
10.5.3 The font size of the charges must be such that they can be easily seen in the advertisement. Your client must be able to see the charges with very little effort.
10.5.4 Your charges must be located on the advertisement in such a place that your client can see it easily. Your client must be able to see the charges when looking at the advertisement without having to search the advertisement for the charges. You may not hide the charges in the terms and conditions.
10.5.5 You may not state the charges in some advertisements and not in others.
10.5.6 If you give your client the option to unsubscribe for a service, you may only charge network charges to unsubscribe and you may not charge premium charges.
10.5.7 Your advertisement must state all the material terms and conditions to the extent that this is practical.
10.5.8 Your advertisement must not contain our intellectual property.
10.5.9 Your advertisement must make it clear that you, and not we, provide your service.
10.6 These advertising guidelines may change from time to time. Please ensure that you adhere to the local advertising guidelines in the country where you offer these services.
11 UK DEDICATED AND SHARED SHORTCODE SERVICES
11.1 In addition to the other terms, this section applies if you use our dedicated or shared UK Shortcode service.
11.2 Please note that Immervox’s UK Shortcode services may not be used for or in relation to adult services, gambling services, chat services or subscription services.
11.3 You acknowledge that you are aware of and agree to comply with and abide by the following laws, regulations and guidelines:
· Phone Pay Plus guidelines (www.phonepayplus.org.uk)
· Vodafone’s Premium Rate Services Code of Practice;
· Hutchison’s (Three) Code of Practice for 3rd Party Services;
· O2′s policy document Clear Breach of ICSTIS code and the promotion of premium rate services by spam SMS;
· Wireless Marketing Association principles. www.mmaglobal.co.uk;
· All Office of Telecommunications requests. www.ofcom.org.uk;
· IMBC guidelines (Independent Mobile Classification Body). www.imcb.org.uk;
· Data Protection Act of 1998 (including Directive 97/ 66/EC). www.hmso.gov.uk;
· Consumer Protection regulations 2000: Distance Selling (SI No.2334). www.oft.gov.uk;
· E- money Order and Gaming Lottery Acts;
· Short code regulation www.short-codes.com/pages/documents.php;
· Trusted Mobile Payment Framework ‘ Payforit’ guidelines for WAP billing;
· All adult content regulations and guidelines which vary from operator to operator.
11.4 You agree:
11.4.1 to ensure that the End–user’s bill is no more than £30 per day;
11.4.2 to obtain permission from Immervox for subscription services where the total cost of the service is greater than GBP 20 per month or greater than GBP 4.50 per week;
11.4.3 to ensure that End–user‘s consent is obtained prior to any transmission of content or message, and be prepared to give evidence of prior consent within 24 hours to Immervox and UK operators;
11.4.4 to allow Operators to view your marketing material at any time;
11.4.5 to use dedicated short codes or shared 7**** series short code as a minimum;
11.4.6 to comply with the STOP command for all subscription services and enable marketing messages to cease if the End-user sends STOP to a short code;
11.4.7 that you may not send marketing messages to MISISDN’S if the opted-in database you use is older than 6 months
11.4.8 to ensure that End User’s consent is obtained prior to any transmission of content or message to such End-user
11.4.9 you are responsible for any fines from operators, regulators (including Phonepay Plus) or other parties that may result from using our UK Shortcode services; and
11.4.10 to abide by all relevant provisions of the relevant Operators’ terms and conditions, as available on each Operator’s website.
11.5 If we send you a MSISDN or alias on your request in respect of a WAP session, you agree to ensure the following:
11.5.1 That the service to the End–user is a registered premium service with Immervox.
11.5.2 That the billing relating to the identification must be performed via Immervox
11.5.3 That no marketing is performed to the MSISDN unless a specific request for marketing from the End–user is given.
11.6 If identification is used then approval must be gained from the operators via Immervox.
11.7 You acknowledge that WAP services may be removed by the operators at any time without notice.
11.8 We may terminate your dedicated and shared short code with 14 day’s notice to you.
11.9 Should you want to terminate your dedicated or shared UK Shortcode, you agree to pay us a cancellation fee equal to 4 (four) months’ subscription fee. However, you may terminate a shared short code during the first 14 days of applying therefore with no penalty.
12.1 You must at your own cost acquire and maintain such -
12.1.1 computer, telephone, other communications equipment and software; and
12.1.2 network or Internet access, as may be necessary to use our services.
12.2 You must ensure that your computer, phone, other communications equipment and software are compatible with the service concerned before you register for or use the service.
12.3 You must regularly back up all your data.
13 ACCOUNT, PASSWORD AND SECURITY
13.1 Sometimes, to register for, or use a service, you must give us information about yourself as prompted.
13.2 You warrant that all information you give is current, complete and accurate.
13.3 We may suspend or stop any service if you give information that is not current, complete and accurate.
13.4 You must promptly tell us if any of the information you provided changes.
13.5 You must choose a username and password. For some accounts we may assign a Client ID to you.
13.6 You –
13.6.1 must keep your password, account name and account information confidential and must not disclose these to third parties;
13.6.2 must not circumvent, or attempt to circumvent, our user authentication systems;
13.6.3 are entirely responsible f