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TERMS AND CONDITIONS OF USE AND SALE
Orders, Acceptance and Specifications - All orders submitted by the Purchaser (the “Purchaser” or “You” must be in writing and shall not be deemed to be accepted by the “Company” (the “Company” refers to Cymba Integrated Solutions Ltd a company registered in England and Wales, registered number: 05104538, with its registered office at Primrose Hill Business Centre, 110 Gloucester Avenue, London NW1 8HX) unless and until confirmed in writing by a director or some other person authorised on behalf of the Company. Verbal orders will only be deemed made if confirmed in writing by the Purchaser within 24 hours.
The Purchaser shall be responsible to the Company for ensuring the accuracy of the terms of any order submitted by the Purchaser and for giving the Company any necessary information, materials and documentation relating to the Services (those services to be supplied by the Company to the Purchaser) within sufficient time to enable the Company to perform the Contract (the “Contract” or “Agreement” refers to these terms and conditions and any related booking form supplied to the Company by the Purchaser ordering Services) in accordance with its terms of sale, conditions of use, and the terms of compliance; including best practice and of any legal or industry related ruling body.
Following notification by the Company to the Purchaser of its acceptance of the terms of any Booking Form or proposal for Services submitted by the Purchaser, the Services in that booking form shall be deemed to be part of the Services and subject to these terms and conditions. The Company agrees to provide any such Services to the Purchaser in accordance with the Contract (including the terms, specification, any service levels, any price, and the duration set out in each booking form). The quantity and description of and any specification for the Services shall be those set out in the Purchaser’s booking form if accepted by the Company, or if none are set out in the booking form shall be those set out in the Company’s quotation for such Services.
Cymba online remote software products (also referred to as “Services”) are licensed not sold to you by Cymba. Unless you have another agreement directly with Cymba that controls your use of Cymba online software products, these terms and conditions shall apply. For more information regarding Cymba license agreement(s) telephone 0845 08 29622 or contact the Cymba Customer Service Team using the contact details at WWW.CYMBA.CO.UK
Furthermore, any un authorised use, modification, reproduction release, performance, public display or disclosure of the Cymba remote software product or Services by the Purchaser may be unlawful. Contact Cymba for more information. If you are uncertain about your right to copy or permit access to any Company remote software product, Services, documents or materials you should contact your legal advisor.
1. Exclusion and Warranties - The Purchaser shall not be liable for any indirect loss suffered by the Company arising out of in connection with the Contract. The Purchaser’s aggregate liability in respect of any loss or damage suffered by the Company arising out of in connection with the Contract shall be limited to the value of the Services supplied under the Contract. Nothing in the Contract shall limit either party’s liability for death or personal injury resulting from the other party’s negligence, or for fraud or fraudulent misrepresentation.
Subject to the above limitations, no booking form order which has been accepted by the Company in writing may be cancelled by the Purchaser except with the agreement in writing of the Company and on terms that the Purchaser shall indemnify the Company in full against all reasonable loss (including loss of profit) costs (including the cost of all labour used), charges and expenses incurred by the Company as a result of cancellation.
2. The Company warrants that it will perform its obligations under the Contract in a timely and professional manner using best industry practice; that its employees, officer and agents are suitably skilled, experienced and qualified to carry out the duties and tasks assigned to them in connection with the provision of the Services; and that it will comply with (and procure that its employees, officer and agents comply with) the Purchaser’s reasonable requests in providing the Services.
3. Interruptions and Omissions in Service - Errors and omissions, interruptions of Service and delays may occur at any time. We do not accept any liability arising from any such errors, omissions, interruptions or delays or any ongoing obligation or responsibility to operate this website (or any part of it) or to provide the Service offered on this website and we may vary the specification of this site from time to time without notice. Every effort is made to ensure timely delivery of messages but please be advised that our Service may rely on third parties such as Mobile Network Operators or other aggregators. As their performance is out of our direct control we do not accept liability for failure or non-performance of their Systems.
4. Price - The price of the Services shall be the price stated on the Booking Form, or where no price has been stated, the price quoted to the Company for such work, or where no price had been quoted (or if the quoted price is no longer valid) the price listed in the Company's published price list current at the date of acceptance of the booking form. All prices quoted are valid for 30 days only (or such other period as is specified in the quotation) or until earlier acceptance by the Purchaser. The Company reserves the right to increase the price of the Services to such amount as is agreed with the Purchaser in writing to reflect any change in delivery dates, quantity or specifications for the Services which is requested by the Purchaser. The price is exclusive of any value added tax, which the Purchaser shall be additionally liable to pay to the Company at the then prevailing rate.
5. Intellectual Property - The Purchaser agrees that copyright in any drawings, prints, graphic design, written materials, specifications and designs including remote accessed online software products, and any stored in a computer retrievable system: produced by the Purchaser for the Company in connection with the Solution (the design, development and delivery of the Services) shall vest in the Company; and produced by the Company shall remain the Company's property and may not be copied or made accessible to third parties in any way by the Purchaser without the prior written consent of the Company.
Intellectual property rights existing in any tools made for the Solution or Services shall remain the property of the Company notwithstanding that the Purchaser may have been charged with part of the cost of such development.
If Products and Services are supplied by the Company in accordance with a specification or design submitted by the Purchaser, the Purchaser shall indemnify the Company against all reasonable loss, damages and reasonable expenses (including legal fees) awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent copyright design trademark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Purchaser’s specification or design.
The Company shall indemnify and hold harmless the Purchaser against any reasonable loss, damages and reasonable expenses (including legal fees) incurred by the Purchaser as a result of a claim that the Purchaser’s use of the Services infringe the intellectual property rights or other proprietary rights of any other party.
6. Confidentiality - The parties shall take all such steps as shall be necessary to protect all and any confidential information of the other party which comes into their possession and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute, sell, lend or disclose the contents of the same to any third party without the prior written consent of the other party.
The Company warrants that it will not use any telephone number or other information obtained from any third party through its provision of the Services for any purpose not agreed to by the Purchaser in writing, including providing those telephone numbers or other information to other organisations.
The parties undertake to each other to make their employees, agents and subcontractors aware of the provisions of this confidentiality clause and to use their best endeavours to ensure compliance by their said employees, agents and subcontractors with their obligations in this confidentiality clause.
7. Data Protection - The Company warrants that it has made all registrations required of it under any applicable data protection legislation and in respect of any Personal Data (as defined in the Data Protection Act 1998) processed by it in connection with the Contract, and that it complies, and shall continue to comply, with all applicable provisions of the Data Protection Act 1998 or other applicable data protection legislation, including data protection principles and the guidance and codes of practice issued by the Information Commissioner.
The Company shall not do anything which may cause the Purchaser to infringe the Data Protection Act 1998.
The Company warrants to the Purchaser that it has in place and will maintain appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage, or disclosure of any personal Data and adequate security programs and procedures to ensure that unauthorised persons do not have access to any equipment used to process such personal Data.
Upon demand by the individual that any personal data relates to, or on termination of the Contract, or on written request by the Purchaser, as the case may be, the Company will promptly destroy and expunge all personal data it holds relating to that individual and, following a written request by the Purchaser, will provide written confirmation to the Purchaser of its compliance with the requirements of this clause. The provisions of this clause on data protection shall survive termination of the Contract.
Miscellaneous - Cymba has no obligation to monitor use of the Messaging Broadcast Feature or Data transmitted or stored through the Service, or Data transmitted via A.P.I (messaging gateway) using the Purchaser’s own messaging application. To the maximum extent permissible under applicable law, the Company reserves the right at all times to monitor, review, retain and/or disclose any Data or other information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to investigate any use or suspected breach of this Agreement.
PURCHASERS PROVIDING LISTS OF MOBILE PHONE NUMBERS FOR OUTBOUND MESSAGING BROADCAST MUST UNDERTAKE NOT TO INCLUDE MOBILE NUMBERS FROM OTHER PARTIES WITHOUT PROOF THAT THE PROPOSED RECIPIENTS HAVE AGREED TO THIS. IF YOU ARE DEEMED NOT TO COMPLY WITH ANY OF THESE CONDITIONS THAN SERVICES TO THE PURCHASER WILL BE TERMINATED AT THE SOLE DISCRETION OF THE COMPANY.
ALL DATA PROVIDED TO THE COMPANY FOR USE BY THE PURCHASER WILL REMAIN THE PROPERTY OF THE PURCHASER AND WILL NOT BE DISCLOSED TO OTHER PARTIES. CYMBA INTEGRATED SOLUTIONS LTD DOES NOT SELL, RENT OR OTHERWISE DISTRIBUTE MOBILE OR EMAIL DATA TO OTHER PARTIES.
8. Cymba Account - A Cymba Customer Account (“Cymba Account”) is required to access and use the remote online Software. If you do not have a Cymba Account, You must complete the applicable registration and booking process to create a Cymba Account in order to use the Companies Services. You are entirely responsible for maintaining the confidentiality of Your Cymba Account password and login details.
Miscellaneous - The Company will use all reasonable endeavours to make the Service available for use by any reasonable date specified or requested by the Purchaser, however each such date is to be treated as an estimate only.
The Company may make reasonable changes to the technical specification of the Service from time to time and suspend the Service for a reasonable period of time for operational reasons such as repair or maintenance.
The Company Service support U.K. SMS Short Code numbers. Short Codes are country specific. U.K. Short Codes, unless specifically stated may exclude the Channel Islands and the Isle of Man. If You are in any doubt regarding Short Code coverage and exclusion contact Cymba on 0845 08 29622 prior to placing Your order.
9. Communication Connections; Online Software Availability (access to Company Services). You are solely responsible for acquiring and maintaining the internet or telecommunications services and devices required to access and/or use the online software Services. The remote online software is provided “as is” and “as available” and the Company will not be responsible for pay the Purchaser for any loss or damage resulting from any downtime of the Services due to reasonable scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control of the Company.
10. Purchaser Conduct and Responsibility; Compliance with Applicable Laws. Use of the Companies Service(s) (including the transmission of any data You (“The Purchaser”) choose to upload, store or broadcast (“Data”) through the Services is subject to all applicable local, national and international laws and regulations, including but not limited to the United Kingdom of Great Britain and Northern Ireland. You agree to comply with such applicable laws and regulations and with the specifications set out or referred to in the provision of Services documentation or booking form, or Company invoice or Service Agreement by the Company or the authorised reseller from which the Purchaser obtained access to the Services and not to (a) use the Online Messaging Broadcast Feature, A.P.I messaging gateway or Short Code(s) for illegal or negligent purposes, (b) transmit or store material that may infringe the intellectual property rights or other rights of third parties or that is illegal, tortuous, defamatory, libellous, or invasive of another's privacy; (c) transmit or store data belonging to another party without first obtaining all consents required by law from the data owner for transmission of the data to the Company for storage within the United Kingdom; (d) transmit any material that contains software viruses or other harmful computer code, files or programs such as Trojan horses, worms or time bombs; (e) interfere with or disrupt servers or (mobile) networks connected to the Services; or (f) attempt to gain unauthorised access to the accounts of other (Service) users, or computer systems or networks connected to Cymba’s Online Software Products or Services.
Your obligations in this Section regarding use of the Services apply to all use of the Services in connection with Your Cymba Account. You are solely responsible for the use of the Services, and the Data transmitted or stored through the Services, in connection with Your (The Purchaser’s) Cymba Account.
11. Responsibility - To the maximum amount permissible under applicable law, You agree to pay Cymba, its parents, subsidiaries, affiliates, officers, directors, employees and agents the amount of any claims, demands, costs, damages, losses, liabilities and expenses, including reasonable legal fees, made by any third party arising out of or in connection with use of the Service through Your Cymba Account to the extent any such claims, demands, costs, damages, losses, liabilities and expenses arise as a result of Your breach of this Contract or Your negligence or wilful misconduct. Such amount may include but is not limited to responsibility for payments of any such claims, demands, costs, damages, losses, liabilities and expenses arising out of or in connection with the Data transmitted, stored or collected through the Services in connection with Your Cymba Account.
Some important compliance information can be found here:
http://www.phonepayplus.org.uk http://www.ico.gov.uk http://www.clearcast.co.uk
12. Compliance - All PREMIUM RATE MESSAGING AND SMS DONATION SERVICES MUST BE REGISTERED WITH AND COMPLY WITH THE PHONEPAYPLUS CODE OF PRACTICE. FOR INFORMATION AND CONTACT DETAILS SEE WWW.PHONEPAYPLUS.ORG.UK.
The Company do not allow unsolicited messaging or adult content to be sent through any Company Service and Premium Services must comply with PhonepayPlus guidance, rules and regulations. By using any Company Service you agree to this.
13. Termination; Suspension of Service. The Purchaser’s right to use the Service will terminate on expiration of the Service Period. The Company may immediately suspend or terminate use of the Service during the Service Period for Your failure to; or Cymba’s reasonable belief that You have failed to comply with these terms and conditions (other than a trivial or inconsequential breach) or any other misuse of the Service.
Following the expiration or termination of the Service Period:
The Company may permanently delete any Data stored in the online space associated with the Service; Cymba will not be obligated to maintain such Data, forward such Data to You or a third party, or migrate such Data to another service or account; and the Purchaser will not be able to store or migrate the Data to any additional Service that you may have purchased separately unless reasonable advance notice is given to the Company and reasonable labour costs are agreed by Cymba to undertake this work or until the Service Period is renewed.
14. Invoicing - An invoice will be generated and sent by email to either the Purchaser’s email billing address or that of the Purchaser’s nominated billing contact at the beginning of each agreed Service period or prior to commencement of work. It is the Purchaser’s responsibility to advise the Company of any changes to this email address in writing.
Individuals within the Purchaser’s organisation with administrator rights will be able to view an account statement and make a secure payment at any time. The Purchaser is deemed pre-pay customers unless otherwise agreed. All current and past invoices can be viewed online at anytime.
15. Payment of Services - The Company’s usual terms of business are pre-payment of Service in advance of use. Unless otherwise stated in the Purchaser Booking Form, Service Agreement, Quotation or Documentation, payment is due on receipt of the Company invoice notwithstanding that delivery may not have taken place and that the Service have not been received yet by the Purchaser.
Whilst reserving the right to suspend the Service on any overdue account and to take legal action for recovery of debt due, the Company’s usual process is as follows:
Payment reminders will be sent by email 07, 14 and 33 days after the invoice date. The Company may also telephone the Purchaser to remind and request payment in accordance with the Agreement.
If payment is not made after 45 days the Company will issue a final reminder by email and/or telephone that the payment terms have not been met.
If payment is not made after 60 days the Service may be suspended at the Company’s discretion and without further notice. The invoice(s) will be referred to our debt recovery partner (Daniels Silverman). The Purchaser agrees to pay the Company all reasonable charges and legal fees resulting from its failure to pay an invoice within 60 days of its receipt.
Subject to any special terms agreed in writing between the Purchaser and the Company, the Company shall be entitled to invoice the Purchaser for the price of the Services on order acceptance or at any time after delivery of the Services (in accordance with the details of the booking form agreed).
The Purchaser shall pay the price for the Service in full and without deduction.
The Company reserves the right to refuse to execute any order if the arrangements for payment or the Purchaser’s credit are not satisfactory to the Company. The Purchaser shall pay using one of the following payment options:
- online credit or debit card payment
- offline credit or debit card payment
- BACS transfer
- CHAPS transfer
- invoice/ cheque account (subject to approval)
- direct debit or standing order mandate.
The Company reserves the right to wait four days from receipt of a cheque before the Purchaser can use the Services.
THE PURCHASER AGREES TO PAY THE COMPANY’S INVOICES IN ACCORDANCE WITH THIS CONTRACT AGREEMENT AND ANY RELEVENT BOOKING FORM, WORKS ORDER REQUEST OR LICENSE AGREEMENT. Notwithstanding anything in this Agreement, nothing obliges the Company to continue to extend credit to any party, and extension or continuation of credit is at the Company’s sole discretion.
Miscellaneous - Following delivery of the Service the Purchaser will have 14 days to test the delivery as set out in the Booking Form or Documentation and raise any issues which may affect acceptance. If no comments are received during this period, the delivery of the Service will be deemed to have been accepted and the invoice will be due for payment subject to the agreed payment schedule.
The Company is willing to undertake reasonable amendments to the Booking Form once the Project or Solution has begun; however this is discretional and major additions and exclusions from which additional work by the Company may arise may be chargeable. The Company will inform the Purchaser of any extra charges in writing that may be relevant, for agreement prior to the additional work being undertaken by the Company.
16. Notice of Cancellation (by the Purchaser) - Unless otherwise stated and agreed by Cymba, the Company require one month’s notice of cancellation prior to Your next agreed (recurring or scheduled) invoice date, or the agreed “rolling” Service Period as detailed in the Booking Form, Service Agreement or Documentation. Notice of Cancellation must be made in writing by the Purchaser or acknowledged by the Company in writing.
Miscellaneous - The charges the Company make for the Service can comprise of one-time capital expenditure and/or rental fees that are for a set period of time. This period of time can be paid in full or in agreed instalments. There is also Service period that is deemed “Ongoing” or “Recurring” or a “Rolling” Agreement. These are subject to clearly defined notice periods as set out in Your Booking Form or Documentation.
The minimum Service Rental period is one calendar month. The maximum Service Rental period is three calendar months depending on the type of Service. If any Rolling Contract is not terminated (notice of cancellation served by the Purchaser in writing to the Company) one month prior to the expiry of the period or anniversary invoice that has been agreed then it automatically renews for a further Service Period on the anniversary of the rental period. The rental period has been agreed within Your instruction to the Company in the way of the Company Booking Form or Documentation.
If you fail to send us this notice of termination within four weeks of the date your contract is automatically renewed then you shall become liable for the next Service rental period fee in full.
17. Notices - Any notices must be sent by receipted email, by post or by hand as follows:
- To You, at the address You have given Us or the email address given to Us on Your Booking Form or the related correspondence from this time.
- To Us, by email or by post to The Company address shown on this Website.
Notices sent by email (including making contact via any Company System), such notices shall be deemed to be received when capable of being accessed by you. In the case of Notices sent by post, such Notices shall be deemed as being received on the third business day after posting.
18. Premium SMS Payment (including Third Sector donations) - The Company will collect from its mobile network operators all successfully delivered Premium SMS messaging (“PSMS”) payments that were processed by the Service, less any charges made by those mobile operators partners within 45 days of a successful PSMS transaction. A summary statement of Your net revenue for the Period will be sent to the Purchaser between the 18th and 20th day of each month following the calendar month whereby the PSMS transaction was processed by the Company and acknowledged by the mobile network operators. The Company shall provide the Purchaser with a Revenue Statement each month showing the breakdown and quantity of successfully delivered PSMS messages for the Period and show the Total Revenue to make Your claim for, for the Period. The Purchaser shall then send a Request for Payment or Invoice to the Company. The Company shall transfer Your net revenue via BACS between the on or around the 18th day of each calendar month.
For the Company to issue a Payment to You the Company must be in receipt of such funds from its mobile network operator’s partners for the Period concerned. The parties agree that the above payment obligation will survive the termination of the Contract.
The Company shall: keep true and accurate records and accounts in sufficient detail to enable the Purchaser to determine how much it is owed under the Contract; at the reasonable request of the Purchaser, allow the Purchaser (or its agent) at its own expense to inspect the records and accounts relating to the sums owed under the Contract and to take copies of them; and within 30 days of the end of its financial year, obtain at its own expense and supply to the Purchaser an auditors’ certificate as to the accuracy of the sums paid by it to the Purchaser during that year pursuant to the Contract.
The Company reserves the right to change premium SMS out payments rates in line with Mobile Operator charges.
Miscellaneous; Mobile Network Operator claw backs. From time to time the Service may experience A.I.T. (“Artificial Inflation of Traffic”). The Company is notified by the relevant Mobile Operator that A.I.T has been deemed to have occurred. The Short Code and/or Keyword are identified and all identified premium revenue is withheld from the Company or clawed back from the Company for the Service. In this instance the Company shall contact the Purchaser and withhold, arrange for a contra payment or invoice the Purchaser for premium revenue that has been previously paid to the Purchaser.
THE COMPANY RESERVE THE RIGHT TO CLAW BACK OR WITHHOLD PREMIUM SMS PAYMENTS MADE PREVIOUSLY, OR CONTRA OUTSTANDING PAYMENTS WHEN REQUIRED TO DO SO DUE TO A.I.T. THE COMPANY RESERVES THE RIGHT TO DELAY PAYMENT UNTIL ANY A.I.T. QUERY IS RESOLOVED OR THERE ARE NO REGULATORY OR OPERATOR INVESTIGATIONS PENDING REGARDING THE PURCHASER’S SERVICE.
19. MODIFICATION OF TERMS - CYMBA INTEGRATED SOLUTIONS LTD reserves the right to change the terms, conditions, and notices under which CYMBA INTEGRATED SOLUTIONS LTD Websites and Services are offered, including but not limited to the charges associated with the use of the CYMBA INTEGRATED SOLUTIONS LTD Websites, Remote Software and Services. The Purchaser is responsible for regularly reviewing the Terms and Conditions and additional terms posted on particular web pages including invoices and payment reminders. Continued use of the CYMBA INTEGRATED SOLUTIONS LTD Websites and Services constitutes an agreement to all such terms, conditions, and notices.
By using Services of the Company, you agree to the terms and conditions above.
The Contract shall be the entire agreement between the parties, shall supersede all previous communications between the parties and shall exclude all representations and other communications between the parties unless mentioned in the Contract. The Contract shall be governed by English law and be subject to the exclusive jurisdiction of the English courts.
SMShortcodes.co.uk is a trading name and website of Cymba Integrated Solutions Ltd.
© Cymba Integrated Solutions Ltd.
Terms and Conditions of Use and Sale version 4.1 dated 16 October 2012
SMSshortcodes.co.uk is a trading name/website of Cymba Integrated
110 Gloucester Avenue, London, NW1 8HX.