Terms and Conditions
IMPORTANT – PLEASE READ CAREFULLY BEFORE PURCHASING SERVICES FROM Mobifi Messaging Ltd AND/OR USING THE Mobifi Messaging Ltd WEBSITE
Mobifi Messaging Limited Standard Terms and Conditions of Business.
The terms and conditions set out below (the “Conditions”) apply to the website at www.mobifi.com (the “Website”) (as accessed via that or any other address) owned, operated and controlled by Mobifi Messaging Limited (Registered in England Number 6961335) whose registered office is at Woodlands, 415 Limpsfield Road, Warlingham, Surrey, CR6 9HA and to all services provided using the Website and/or ordering any services from Mobifi You are deemed to have read and agreed to these Conditions.
The Services provided by Mobifi are available in the United Kingdom and in other countries where specified. By accepting these Conditions You warrant and represent that You are located within the UK or other country where specified where Mobifi’s services are made available.
Mobifi may, at any time, change, modify, add to or remove part or all of these Conditions. You should therefore check these Conditions periodically to see if they have changed. Your continued use of the Website and/or services provided by Mobifi will be deemed to constitute acceptance by You of any such changes.
If You are a consumer, the terms set out within these Conditions do not affect your statutory rights.
A. CONDITIONS RELATING TO YOUR USE OF THE WEBSITE OR ANY OTHER SERVICES OR SOFTWARE
Mobifi endeavours to ensure that the information on the Website is correct and fairly stated, but here excludes liability for any error or omission. The Website
is not part of a contract or licence save insofar as may be expressly agreed by Mobifi.
All designs, text, graphics and the compilation (meaning the collection, arrangement and assembly) of all content on the Website are the copyright of Mobifi and
its licensors unless indicated otherwise. You may electronically copy or print portions of the Website for your own personal, non-commercial use. Any other use,
including the reproduction, modification, distribution, transmission, republication, display or performance of the content on the Website is strictly prohibited.
No links to the Website may be included in any other web site without express written authorisation from Mobifi.
Any link (be it a hypertext link or other referral device) used on the Website is provided solely for the use and convenience of the visitor. The link does not
represent any endorsement or recommendation by Mobifi and does not mean that Mobifi has any association with the linked site. Mobifi is not responsible for the
content of any websites that have links with the Website or for the legal consequences of your entering into any contracts with the third parties that have these
linked web sites. Mobifi does not accept any liability for any loss, damage, expense, costs or liability whatsoever incurred to You as a result.
Mobifi will use your information, together with other information, including any which You provide to Mobifi, for administration, marketing and customer services.
Mobifi will NOT disclose your details to parties outside Mobifi unless your permission has been agreed. You may, from time to time, when You are using the Website,
be asked to provide or be provided with a password to enable You to access certain services. You must, at all times keep your password private and confidential and
You may not permit third parties to use your password.
Mobifi will NOT release your details to business partners. However, Mobifi may contact You by mail, telephone, email, SMS or fax to let You know about any Mobifi
goods, services or promotions of the business partners which are considered relevant to the services provided to You by Mobifi.
Mobifi will not be liable for any loss, damage, expense, costs, delays or other liability whatsoever (including, without limitation, any financial losses such as
loss of profit) which You may incur as a result of any event beyond Mobifi ‘s reasonable control (including without limitation any failure of transmission,
communication, computer or other facilities or your inability to access the site for any reason or any failure, error or delay in the sending or receiving of any notice
or communication or instruction through the post or any electronic medium).
Nothing within these Conditions operates so as to exclude, limit or restrict Mobifi’s liability for death or personal injury.
These disclaimers, exclusions and conditions shall be governed and construed in accordance with the law of England and Wales. If any provision shall be unlawful, void
or for any reason unenforceable then that provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
B. GENERAL CONDITIONS RELATING TO THE PROVISION OF SERVICES
In the following Conditions unless the context otherwise requires the following terms shall have the following meanings:
“ASP” an Application Service Provider (ASP) is a company that offers individuals or enterprises access over the Internet to applications and related services;
“Bankruptcy or Insolvency Proceedings” bankruptcy proceedings, sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) or having a receiver or administrative receiver of any assets appointed;
“Contract” the contract for the provision of Services between Mobifi and You incorporating these Conditions, the Mobifi Order Form (where completed and accepted by Mobifi and (where applicable) the Price List or as set out in the applicable Separate Contract;
“Email Provision” the Mobifi secondary email service provided by Mobifi as detailed on the Website from time to time;
“Fee” the fees (including any applicable VAT) due for the provision of the Services as set out in the Price List or, in the absence of provision in the Price List, the fees for the provision of the Services agreed between You and Mobifi as detailed in the applicable Order Form accepted by Mobifi in writing or via Mobifi’s online purchasing system;
“Force Majeure” means any event or condition, not existing as of the date of this Agreement, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents in whole or in material part the performance by a party of its obligations hereunder (other than the obligation to make any payment of money due and owing) or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following will constitute events or conditions of Force Majeure: acts of state or governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion.
“General Conditions” the general conditions relating to the provision of services set out in Section B of these Conditions;
“Hosting” the provision of hosting services by Mobifi;
“Hosted Service” a service that is hosted by Mobifi under its Hosting Service;
“Intellectual Property Rights” any and all intellectual property rights and similar rights including, without limitation, patents, trade marks or trade names, service marks, brand names, registered designs, design rights, rights in databases, Know-How, copyrights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating or attached thereto and all extensions and renewals thereto;
“Know-How” any and all know-how, confidential information, experience, drawings, designs, source code, programmes, notes, flowcharts, other technical information including the benefit of obligations of confidentiality in relation thereto howsoever arising;
“Minimum Contract Term” any minimum contract term applicable in respect of the provision of Services as specified in the relevant Contract;
“Networks” aggregated wireless gateways available for the transmission of SMS text messages transmitted to or from mobile telephones within the United Kingdom and/or other countries where specified;
“UK Operators” means Vodafone, O2, Orange, T-Mobile, Three, Virgin;
“Order Form” the Mobifi Order Form or online Order Form (if applicable);
“Price List” Mobifi’s published fees or charges for the provision of the Services from time to time;
“Separate Contract” any separate contract for the provision of Services entered into You and Mobifi;
“Services” the Mobifi Service, Hosting, Email Provision, SMS Service and any other service or facility provided to You by Mobifi as detailed on the relevant Order Form and/or as accessed or used by You via the Internet or the Website;
“Site” the premises or location at which a Service is or is to be provided;
“SMS Service” Mobifi’s facilitation of the sending and/or receipt of SMS messages via a web based interface, email client or other medium;
“Website” Mobifi’s website, www.mobifi.com;
“You” you as the client or customer having accepted this agreement and entered into a contract with Mobifi;
2 Basis of Provision of Services
2.1 Save as provided in clause 2.2 these General Conditions apply to each and any provision of Services to You by Mobifi to the exclusion of all other conditions, agreements, understandings or arrangements not set out in the applicable Contract.
2.2 Certain Services are provided by Mobifi on the terms of Separate Contracts. If You enter into a Separate Contract with Mobifi in relation to the provision of any Services the terms of that Separate Contract shall take priority over these Conditions. The Services in relation to which Mobifi currently uses Separate Contracts are Hosted Services, Managed Services, Special and Bespoke Projects;
3 Fees and Payment
3.1 In consideration of the payment of the appropriate Fees, Mobifi will provide the Services. The appropriate Fees for the provision of Services are such Fees as are expressly agreed in writing to You and Mobifi in respect of the Services or, in default of such agreement, such Fees as are calculated in accordance with the Price List in force at the time You submit a completed Order Form for the provision of the Services to Mobifi.
3.2 All Fees must be paid in full or otherwise stated without set off or deduction in UK pounds sterling by cheque or direct bank transfer within 14 days of invoice date if You submit an Order Form by fax or post. Purchases may also be initiated online in which case an invoice will be automatically generated and sent for payment. Payment of purchases initiated online must be paid in full by cheque or direct bank transfer within 14 days of invoice date.
Please note that if You make payment by cheque and your bank returns the cheque to Mobifi unpaid, You may be liable for an administrative fee of £25.
3.3 Fees are quoted by Mobifi (whether in the Price List or otherwise) in Pounds Sterling (£GBP) exclusive of Value Added Tax. If Value Added Tax is applicable, You must pay it in addition to the quoted Fee at the rate prescribed by law. Other currencies may be quoted upon request or for services that are available in other specified countries.
3.4 Mobifi reserves the right to increase the Fees for Services in respect of which it has entered into a Contract with You upon 14 days prior written notice to You.
3.5 Without prejudice to Mobifi’s other rights and remedies under these Conditions and/or at law, if any sum payable is not paid on or before the due date, Mobifi shall be entitled forthwith to:
3.5.1 withhold or, where provision of the Services has commenced, suspend the provision of Services to You; and/or
3.5.2 charge You an administration fee or service fee in respect of time spent and costs incurred by Mobifi in taking steps to recover payment of the due sums and for the time spent and costs incurred to maintain service. Mobifi also reserves the right to charge You a minimum £25 reconnection charge if services are suspended under this clause 3.5.
3.6 we reserve the right to attempt to recover monies for outstanding invoices by contacting the administrator email address or owner email address for the account, or by any other contact details we have been provided pertaining to that account.
4.1 Mobifi warrants that it will provide the Services with reasonable care and skill.
4.2 All conditions, terms, warranties and representations, whether imposed statute, operation of law or otherwise, that are not expressly stated in these Conditions are here excluded to the fullest extent permitted law.
5 Intellectual Property Ownership
5.1 All Intellectual Property Rights in and to the Services provided by Mobifi are, as between You and Mobifi, the property of and shall vest in and be the property of Mobifi.
5.2 This Agreement does not operate as an assignment by or to either party of any copyright, registered design, trademark or any other intellectual property rights of whatever nature.
5.3 Nothing in this Agreement shall entitle either party to use the other party’s name, logo or trademark or any intellectual without the prior written consent of the other.
6 Use of the Services
6.1 You represent, undertake and warrant to Mobifi that You will use Services provided by Mobifi only for lawful purposes. In particular, You represent, warrant and undertake that:
6.1.1 You will not use the Services in any manner which infringes any law or regulation or which infringes the rights of or, causes annoyance, inconvenience or needless anxiety to any third party, nor will You authorise or permit any other person to do so;
6.1.2 You will not use the Services to post, link to or transmit:
(a) any material which is immoral, indecent, unlawful, threatening, abusive, malicious, libel, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program; and/or
(c) any material which constitutes, or encourages the commission of, a criminal offence, infringes any intellectual property right or would otherwise be unlawful in the jurisdiction where the messages are capable of being sent and/or received;
(d) any material which may contain any statement likely or which may bring the name of Mobifi into disrepute or otherwise have adverse effect on Mobifi, its name, or brand
(e) any material for the purposes of marketing, advertising or direct selling, without the express written approval of Mobifi, which may be withheld without explanation or granted subject to such conditions (including payment) as Mobifi may consider fit.
(f) any data that will impair the operation of Mobifi’s network, computer systems or infrastructure or the Networks or any part of it
6.1.3 You will keep secure any identification, password and other confidential information relating to the Services and shall notify Mobifi immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information;
6.1.4 You will observe the procedures which Mobifi may from time to time prescribe and shall make no use of the Services which is detrimental to Mobifi ‘s other customers;
6.1.5 You will procure that the Services are used in accordance with all applicable legislation (including data protection legislation) and in a secure manner;
6.1.6 the content of messages shall be determined by You and You will be solely responsible for the content.
6.2 Whilst Mobifi will use reasonable endeavours to ensure the integrity and security of the Services, Mobifi does not guarantee that the Services will be error or interruption free or free from unauthorised users or hackers.
6.3 Mobifi may from time to time:
6.3.1 temporarily suspend part or all of the Services without notice for the purposes of repair, maintenance or improvement. Mobifi undertakes to use reasonable endeavours to restore the Services as soon as possible after any such suspension;
6.3.2 give instructions regarding the use of the Services which in Mobifi ‘s reasonable opinion are necessary in the interests of safety or to maintain or improve the quality of the Services provided by Mobifi and any such instructions shall, whilst they are in force, be deemed to form part of the Contract between You and Mobifi; and/or
6.3.3 vary the technical specification of the Services for operational needs.
7.1 Mobifi may terminate its Contract with You at any time, immediately upon written notice if You:
7.1.1 breach any term of the Contract; or
7.1.2 are subject to Insolvency Proceedings.
7.2 Either You or Mobifi may terminate your Contract at any time upon at least 30 days notice to the other expiring on the last day of the Minimum Contract Term (if any) or at any time thereafter. If no Minimum Contract Term is specified the notice to terminate shall take effect upon the last day of the notice period. In any event You must pay the Fees for all Services provided to You up to and including the date of termination.
7.3 Mobifi reserves the right to terminate any Contract at any time (notwithstanding any Minimum Contract Term) giving to You not less than 30 days prior written notice of termination. If Mobifi terminates your Contract under this clause 7.3 it will refund any Fees that You have paid in advance for Services that, as a result of Mobifi’s termination of the Contract, You will not receive.
7.4 Termination and/or expiry of your Contract is without prejudice to any rights and/or liabilities accrued as at the date of expiration or termination.
7.5 On termination or suspension of Services under the Contract Mobifi shall be entitled to immediately block any website provided to You or hosted for You by Mobifi as part of the Services and to remove all data located on it. Mobifi shall be entitled to delete all such data but Mobifi may, at its discretion, hold such data for such period as Mobifi may decide, to allow You to collect it at your expense, subject to payment in full of any amount outstanding under Contract and payable to Mobifi. Mobifi shall further be entitled to post such notice in respect of the non-availability of such website as Mobifi thinks fit.
Any notice to be given You or Mobifi to the other may be sent either by email, fax or first class recorded delivery to the address of the other party as appearing in the relevant Contract (or, in the case of Mobifi, as appearing on the Website) or such other address as either party may from time to time have communicated to the other in writing. If sent by email a notice shall, unless the contrary is proved, be deemed to be received on the day it was sent or, if sent fax, shall be deemed to be served on receipt of an error free transmission report or, if sent by first class recorded delivery within the UK, shall be deemed to be served two days following the date of posting.
9 Force Majeure – Matters Beyond Mobifi’s Reasonable Control
Mobifi is not liable for any breach of Contract or any delay or failure in its performance of any of its obligations under a Contract when caused as a result of any Force Majeure – matters beyond its reasonable control including, but not limited to, war, civil disorder, industrial disputes, adverse or extreme weather, acts of local or central government or other competent authorities or failure other service providers.
9.1 Notice –
Upon being affected by an event of Force Majeure the party so affected shall give notice to the other, together with details of the event which has occurred so suggested to amount to Force Majeure. On receipt of such notice the parties shall discuss with the other (using all reasonable endeavors and acting in good faith) how to best progress the provisions of this Agreement (if at all) bearing in mind the event, which shall have occurred. Upon the giving of such notice the affected party will be released without any liability on its part from the performance of its obligations under this Agreement (except for an obligation to make any payment of money due and owing), but only to the extent and only for the period that its performance of such obligations is prevented by the event of Force Majeure.
9.2 Suspension of Performance –
During the period that the performance by a party of its obligations under this Agreement has been suspended by reason of an event of Force Majeure, the other party may likewise suspend the performance of all or part of its obligations (except for an obligation to make any payment of money due and owing) hereunder relating to the circumstances constituting the claimed event of Force Majeure (to the extent that such suspension is commercially reasonable).
10.1 Mobifi shall not in any way be liable for any loss of profits, anticipated savings, goodwill or business opportunity, for the loss, corruption or destruction of data, for injury to reputation or third party losses or for indirect, consequential or special loss or damage regardless of form of action, whether in tort (including negligence) contract, strict liability or otherwise and regardless of whether Mobifi knew or had reason to know of the possibility of the loss, injury or damage in question.
10.2 Nothing in these Conditions shall operate so as to exclude Mobifi’s liability for death or personal injury resulting from its negligence or for fraudulent misrepresentation.
10.3 Mobifi’s total aggregate liability under any Contract for any claim arising out of or in connection with the provision of the Services shall be limited to the Fees paid by You in respect of the Services which are the subject of any such claim.
10.4 In any event no claim shall be brought against Mobifi unless You notify Mobifi of the claim within one year of it arising.
11.1 You shall indemnify and hold Mobifi harmless from and against any breach by You of these Conditions and/or the terms of any Contract and any claim brought against Mobifi by a third party resulting from the provision of Services to You and your use of the Services other than in accordance with the terms of these Conditions and the applicable Contract.
11.2 Mobifi’s duty in performing its obligations under this Agreement is to exercise the reasonable skill and care of a competent mobile application service provider and mobile service provider. You acknowledge and accept that provision of mobile services is available only within the communication range of the UK Operators, You accept that the quality and availability of mobile services may be affected by factors outside Mobifi or UK Operators control such as local physical obstructions, atmospheric conditions and other causes of radio and/or communication interference or faults in other telecommunications networks to which the UK Operators are connected.
11.3 Mobifi shall not be liable in any manner whatsoever to You in respect of any purported loss of profit, business or anticipated savings or for any indirect or consequential loss whatever and howsoever arising.
11.4 The provisions of this Agreement set out the entire understanding between You and Mobifi in respect of which Mobifi shall be under no other obligation duty or liability except as specifically set out herein.
The failure or delay of Mobifi to enforce or exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect Mobifi’s right later to enforce or exercise it. No single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
The invalidity or unenforceability of any term of or any right arising pursuant to this Agreement shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
14 Third Party Rights
Nothing in this Agreement shall be construed so as to confer any benefit or impose any obligation upon any person who is not a party to it whether under the Contracts (Right of Third Parties) Act 1999 or otherwise.
The headings in these Conditions are for ease of reference only and shall not affect the interpretation of the Conditions.
All documentation and correspondence in connection with this Agreement shall be in the English language.
17 Law and Jurisdiction
The construction, validity and performance of these Conditions and each and every Contract is governed the law of England and Wales and the parties accept the exclusive jurisdiction of the courts of England and Wales.
18 Specific Conditions applicable to Email Provision and SMS Services
18.1 Mobifi makes no representation, gives no warranty as to and accepts no liability in relation to your use of the Email Provision and/or SMS Services the accuracy or quality of information received any person via the Email Provision and/or SMS Services and/or any loss of or damage to any data stored or transferred via the Email Provision and/or SMS Services.
18.2 Mobifi reserves the right to suspend any SMS account after contract expiry and delete any remaining credit balance, without refund. In the case where an account is active but credits remain unused after a period of twelve months or greater; Mobifi reserves the right to remove any unused credits from the balance of the account.
18.3 one message credit is consumed per message delivery or attempted delivery. Mobifi reserves the right to charge internetworking, inbound or network termination fees or to deduct messages from an SMS account balance of equivalent value to any internetworking, inbound or network termination fees due.
18.4 message credits are non-refundable under any and all circumstances.
18.5 Mobifi shall be entitled to disconnect or suspend any service or direct connection provided by You without prior notice, should a fault or other form of transmission error occur considered in the reasonable opinion of Mobifi to affect or be likely to affect the performance of the Networks or Mobifi’s network, computer systems or infrastructure.
19.1 Each party acknowledges to the other that mutual disclosure of Confidential Information will be essential to the due performance of the parties’ respective obligations under this Agreement and that unauthorised use or disclosure of any such Confidential Information could harm the business operations of its owner.
19.2 It is agreed that each party will limit the disclosure of Confidential Information to those of its employees, contractors or agents who require that information for purposes connected with the performance of this Agreement and will procure that any record of such Confidential Information is kept secure in accordance with normal business practices.
19.3 Neither party will use any such Confidential Information of the other otherwise than for the purposes of this Agreement without the express consent of its owner.
19.4 The undertakings contained in this clause 20 shall not apply to the receiving party in respect of any information which:
19.4.1 is already in the receiving party’s possession as at the date of this agreement (except only where disclosed by the other party as a consequence of or during the negotiations leading to the signing of this Agreement); or
19.4.2 is independently developed or generated by the receiving party; or
19.4.3 is provided to the receiving party by any third party who was free of any restriction as to its use or disclosure at the time of such provision; or
19.4.4 is or falls into the public domain (otherwise than in consequence of a breach of this Agreement); or
19.4.5 the receiving party is obliged to disclose by reason of any legal requirement.
19.4 On termination of this Agreement each party will cease use of Confidential Information of the other and will return any records of it to the owner. The rights and obligations of the parties under this clause 20 will survive termination of the Agreement. The obligations and restrictions in this clause shall be valid for a period of five years from the termination of this Agreement.
Nothing contained in this Agreement shall be construed to give either party the power to direct or control the day-to-day activities of the other party, nor to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations under this Agreement, each party will be acting as an independent contractor.
20.2 Entire Agreement
This Agreement and the Schedules hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter, and there are no agreements or understandings between the parties other than those set forth or referred to herein.
Customer is not entitled to transfer or assign this Agreement without Mobifi’s prior written consent. Mobifi may transfer, assign, sub-contract or sub-let this Agreement or any part thereof.
This Agreement may be executed in any number of counterparts, and by the parties to it on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
Both Mobifi and the Client shall comply with the Data Protection Act 1998 and any privacy guidelines issued from time to time by Mobifi in connection with the respective activities carried out by the parties under this Agreement.
Mobifi will use your personal or company information in accordance with the Data Protection Act 1998. Information about You will be used to process your order and to provide You with the best possible service, including dealing with your queries and sending You information about changes in the Mobifi service.
Mobifi will not release, offer or sell your personal or company information to third parties without first seeking your consent, except that You hereby consent to such information being transferred to any third party acquiring substantially or all of Mobifi’s assets. However, where Mobifi provides or offers a product, service or solution in partnership with a third party or affiliate, then your details will be shared with that third party or affiliate for the sole purpose of providing you with the requested service.
The information Mobifi holds will be accurate and up to date. You are entitled to ask for a copy of your personal or company information (for which Mobifi may charge a small fee) and to ask Mobifi to correct any inaccuracies or update such information at any time by contacting Mobifi at Mobifi Messaging Limited, 10 Greycoat Place, London SW1P 1SB or email at email@example.com.
Mobifi may need to transfer your personal or company information to countries that do not provide the same level of data protection as is required in the UK. Mobifi will transfer such information only in accordance with the relevant provisions of the Data Protection Act 1998. By submitting your personal information to Mobifi You consent to such transfer.
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