Terms & Conditions

Orders and Specifications - All orders submitted by the Purchaser (the ‘Purchaser’ refers to any client - past or present - of the Company) must be in writing and shall not be deemed to be accepted by the ‘Company’ (the ‘Company’ refers to Cymba Integrated Solutions Ltd. registered number: 05104538) 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 Goods and Services within sufficient time to enable the Company to perform the Contract (the ‘Contract’ refers to the agreement, or booking or works order form that outlines the provision of service(s) between the Purchaser and the Company) in accordance with its terms and the terms of compliance of any legal or industry related ruling body.

The quantity and description of and any specification for the Goods or Services shall be those set out in the Company’s quotation (if accepted by the Purchaser) or the Purchaser’s order if accepted by the Company.

No order which has been accepted by the Company 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 loss (including loss of profit) costs (including the cost of all labour used) damages, charges and expenses incurred by the Company as a result of cancellation.

Price - The price of the Goods or Services shall be the Company's quoted price or where no price has been quoted (or if the quoted price is no longer valid) the price listed in the Company's published price list current at the date of acceptance of the order. 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 by giving notice to the Purchaser at any time before delivery to increase the price of the Goods and Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation or alteration of duties, significant increase in the costs of labour, material or other costs of manufacture or provision by network opertors) any change in delivery dates, quantity or specifications for the Goods and Services which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions or any other cause attributable to 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.

Intellectual Property and Confidentiality
The Purchaser agrees that copyright in any drawings, prints, specifications and designs including any stored in a computer retrievable system:-

produced by the Purchaser for the Company in connection with the Solution design, development and delivery of the Goods and 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 and Services of the provision of the Specified Services for any Purchaser 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 or Specified Services performed in accordance with a specification or design submitted by the Purchaser, the Purchaser shall indemnify the Company against all loss, damages, costs and expenses 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 Purchaser shall take all such steps as shall be necessary to protect all and any confidential information of the Company which comes into its possession and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute, sell or disclose the contents of the same to any third party without the prior written consent of the Company.
The Purchaser undertakes to the Company to make its employees, agents and subcontractors aware of the provisions of this clause and to use its best endeavours to ensure compliance by its said employees, agents and subcontractors with its obligations hereunder.

Payment
Our usual terms of trade are pre-payment of our services in advance of use.
Unless otherwise stated, payment is due on receipt of your invoice. Whilst reserving the right to suspend the service on any overdue account and to take legal action for recovery of debt due, our usual process is as follows.

Payment reminders will be sent by email 10, 20 and 35 days after the invoice date.
If payment is not made after 50 days the Company will issue a final reminder by email and/or telephone that the agreed payment terms have not been met.
If payment is not made after 60 days the service will be suspended at the Companies discretion and without further notice.
The invoice(s) will be referred to our debt recovery partner (Daniels Silverman), and will be subject to a surcharge of 20% to cover any collection costs incurred. This surcharge, together with all other charges and legal fees are the sole responsibility of the Client and will be legally enforced.

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 Goods and Services on order acceptance or at any time after delivery of the Goods and Services (in accordance with the details of the booking form agreement).

The Purchaser shall pay the price of the Goods and Services unless otherwise agreed in writing by the Company on demand but in any case not later than 15 days from the date of the Company's invoice notwithstanding that delivery may not have taken place and that The Goods or Service(s) has not passed to the Purchaser. The time for payment of the price shall be of the essence of the Contract.

If the Purchaser fails to make full payment (including any VAT payable) by the due date all of the Company’s invoices rendered (or to be rendered) to the Purchaser (whether in respect of the Contract or any other Contract between the Company and the Purchaser) shall become immediately due and payable to the Company. Without prejudice to any other right or remedy available to the Company the Company shall be entitled to: -

Cancel the Service(s) or suspend any further deliveries of Goods and Services to the Purchaser; Appropriate any payment made by the Purchaser to such of the Goods and Services (or the Goods and Services supplied under any other contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser)
The Purchaser shall pay the price for the Goods and Services in full and without deduction or set off.

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. All costs and expenses reasonably incurred by the Company in recovering monies due to it will be charged to and be payable by the Purchaser.

The Company reserves the right to suspend the Service(s) at any time due to non-payment by the Purchaser.

Payment Options:

ONLINE CREDIT/DEBIT CARD PAYMENT
OFFLINE CREDIT/DEBIT CARD PAYMENT
BACS TRANSFER
CHAPS TRANSFER
INVOICE/CHEQUE ACCOUNT (subject to approval)
DIRECT DEBIT (late ‘09)
STANDING ORDER MANDATE

The Company reserves the right to wait four days from receipt of a cheque before the Purchaser can use our services.

IT IS THE PURCHASER’S FINANCIAL RESPONSIBILITY, ABILITY AND WILLINGNESS TO PAY THE COMPANY’S INVOICES IN ACCORDANCE WITH TERMS OF AGREEMENT OR INVOICE; THE PURHASER’S RESPONSIBILITY TO UPDATE FINANCIAL INFORMATION IN LINE WITH THE PURCHASER’S AGREED PAYMENT PLAN OR METHOD OF PAYMENT WHERE REQUIRED AND THE PURCHASER’S AGREEMENT TO PAY A LATE CHARGE OR DEBT RECOVERY ON INVOICES NOT PAID WITHIN THESE TERMS.

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.
Invoicing - An invoice will be generated and sent by email to either the Purchaser’s email billing address or that of your nominated billing contact. It is the Purchaser’s responsibility to advise the Company of any changes to this email address in writing.

An invoice will be generated and sent to either your billing address or that of the nominated billing contact (typically given at the time of your initial booking/order confirmation) at the beginning of each monthly period, preceding the month’s service the Company provide. Individuals with your organisation with administrator rights can view your account statement and make secure payment(s) at any time.

All Customers are deemed pre-pay customers unless otherwise agreed.
All current and past invoices can be viewed online at anytime.
For queries call: 0845 08 29622.

Provision - The Company will use all reasonable endeavors to make the Service(s) available for use by any reasonable date specified or requested by you; however each such date is to be treated as an estimate only.

The Company may change the technical specification of the Service(s) from time to time; suspend the Service(s) for operational reasons such as repair, maintenance or improvement. All reasonable efforts will be made to inform you of such events prior to your order being placed.

A Dedicated Short Code needs to be set up directly by mobile network operators. The time required to do this can vary; however is usually between 6-8 weeks. Minimum contract period will be for 12 months unless otherwise stated. Unless otherwise stated the payments will be set up fee plus the monthly rental payment with order followed by agreed interval payments paid in advance of the agreed service period.

Shared Short Codes are usually set up same day or within 24 hours (subject to all premium compliance on behalf of the Purchaser). Shared Short Codes: Minimum contract period will be for 1 month. Unless otherwise stated the payments will be quoted set up fee plus each installment paid in advance of the month’s service.

Bespoke Development and Applications (including mobile WAP sites) - Quotations are valid for two months (unless otherwise stated) from the date of the proposal. The Company does not apply hidden or ongoing charges without informing the Purchaser at the proposal stage that such charges may be applicable.

Following delivery of the project the Purchaser will have 14 days to test the delivery and raise any issues which may affect acceptance. If no comments are received during the 14 day test period, the delivery will be deemed to have been accepted and the invoice will be due for payment.

The Company is willing to undertake reasonable amendments to this proposal once the project has begun. Major amendments, additions and exclusions from which extra work may arise may be chargeable. The Company will inform the Purchaser of any extra charges that may be relevant in writing for agreement prior to any additional work being undertaken.

Any changes to these terms and conditions must first be agreed in writing.

Staged payments may apply to Bespoke Development and Applications (including mobile WAP sites). Unless otherwise agreed with the proposal these are:- 50% on receipt of order, 50% on delivery.

Cancellation or Suspension of Service(s) - The Purchaser shall notify the Company in writing at least one month prior to the end of any agreed service period (be that ‘monthly ongoing’, quarterly or yearly agreement) to avoid being charged for the next term whatever that be in accordance to the Agreement. The Company will make every effort to contact the Purchaser prior to this notice period; however instructing notice of cancellation remains the responsibility of the Purchaser. Terms of notice can also be found on all Purchaser invoices. The Company requires written notice of cancellation.

Mobile Messaging - You may access most areas of the Company website(s) without registering your details with us. Certain areas and services of the website(s) may only open to you if you register with us. You may not use our Service(s) for unlawful purposes or send unlawful, harassing, threatening, obscene or abusive messages or use our services for sending unsolicited (spamming) messages. If your usage of our systems result in any complaints against the Company, or adversely affect the performance of our systems for other customers, your account may be suspended without refund of any monies paid. If you conduct any of these activities you agree to indemnify CYMBA INTEGRATED SOLUTIONS LTD for any losses incurred.

Purchaser; Your Responsibilities

You agree that you are responsible for the security and use of any user names or passwords (if any) needed to access or use the Services supplied by or accessed by the Company. You must take all reasonable steps to ensure that these user names and passwords are kept confidential and secure and you do not allow any unauthorised person to access the Goods, Services or Solutions of the Company using your user name or password.
You agree that you will not use the Company Site or Services or any of the Company Services as follows:
to send, receive, upload, download, store, use, distribute or publish any material that is offensive, abusive, indecent, defamatory, obscene, or in breach of any other person's Intellectual Property Rights or breaches any obligation of confidentiality by which you are bound;
to send or distribute multiple unsolicited emails or messages ('spam') or to cause any other person annoyance, inconvenience or worry.
You agree to indemnify the Company against any claims, costs, expenses or legal proceedings caused as a result of your use of the Companies Services or Solutions in contravention of these terms. Further, in these circumstances, the Company shall be entitled to treat the contravention as a material breach of these User Terms and terminate the User Terms and any access permission granted to you by the Company forthwith, without notice to you, the Purchaser.

Messaging using API’s - Before access is granted to a messaging gateway the Purchaser will be asked sign and return the Company API Gateway Compliance Agreement. This agreement outlines and refers to compliance, governance and payment for any messages sent through the messaging gateway.

LIABILITY - The Company accepts no responsibility for any breach of the Purchaser’s IT security that results in messaging being sent or received using unique and valid Purchaser passwords. In the event of any such breech in the Purchaser’s security liability rests with the Purchaser (including Purchaser evaluation/test environment).

Message Content - The Company processes some messages on an automated basis. The Company is not responsible for the contents of a message or its accuracy in relation to these messages. The Company transmits messages in good faith and cannot be responsible for the message content, save for administrative messages generated by the Company.

Taste and Decency - Messages sent out via SMS MMS WAP must be appropriate for the target audience; no messages may be sent which could in any way bring the Company into disrepute. In case of difficulty the Purchaser must consult the Company prior to sending the message.
*CYMBA does not support services relating to adult services/content.

Premium Rate Messaging - The Purchaser must agree to conform to the relevant legislation associated with the provision of premium rate telecommunications services. For more information of the current guidelines related to premium services go to: www.PhonepayPlus.org.uk. The Purchaser agrees that by using any premium application or gateway service provided or supported by the Company that they comply with all relevant guidelines and governing law associated to their service or promotion.

IF ANY CLIENT IS DEEMED NOT TO COMPLY WITH ANY OF THESE CONDITIONS OF SERVICE THEN PREMIUM RATED SERVICES TO THAT CLIENT WILL BE TERMINATED AT THE SOLE DISCRETION OF CYMBA INTEGRATED SOLUTIONS LTD.

Before any premium SMS services are launched, prior permission must be obtained from the Company. Permission may also need to be sought from PhonepayPlus and/or mobile network operators.

The Company shall be entitled to demand immediate payment from Customer or to suspend services if accrued Charges increase beyond the Purchaser’s approved credit limit.

The Company shall be entitled to net-off all Charges from Premium Revenue Out-Payment due to the Purchaser due to non-payment or non-compliance.

*CYMBA does not support adult services.

The Company does not give professional advice, and information we provide should not be treated as a full and authoritative statement of the law. We cannot be responsible for incorrect provision of information, or any problems caused by third parties (including any court, agent of ours or the network operators). We may offer our Best Practice, based on our experiences date. Any information we share with you regarding these matters must be treated as opinion and is expressed in good faith. If you are in any doubt about a service or promotion you wish to operate through the Company you should seek your own legal advice.

Premium SMS Compliance - The Company want to promote the right measures in place to ensure a culture of compliance where services are offered responsibly and consumers get a fair deal. Charges should be clearly stated on all documented and audible promotional correspondence in accordance with PhonepayPlus guidance. If a set charge is applied, announcements and published terms must remind users that this charge applies irrespective of their normal operator arrangements. Likewise; future (subscription) charges and ‘opt-out’ details MUST be transparent and easily understood by users at all times.

Service providers (you; the Purchaser) must ensure that there are in place customer service arrangements which must include a non-premium rate UK customer service phone number and an effective mechanism for the consideration of claims for refunds and their payment where justified. The Company requests that the Purchaser publishes full terms of the service on a website.

Using any premium rated service or application supplied by the Company the Purchaser agrees to comply with PhonepayPlus regulations (or any other governing law). Using the Company service(s) constitutes your understanding and your acceptance of these terms.

Premium Revenue Out payments - The Company processes a payment statement each calendar month. A detailed mobile operator (of delivered messages) revenue statement is sent to the Purchaser to by email to invoice the Company against any payment due for the Period. The premium revenue statement shows messages that were successfully delivered to mobiles through each network operator.

Messages not delivered to the mobile device during the period (e.g. because the phone is switched off, out of coverage, due to roaming or does not have enough pre-pay credit remaining to receive the billing message) will either appear in the following monthly statement, may expire on the network after 14 days if the network is unable to deliver them, or may not be delivered at all.

The Company reserves the right to change these rates in line with mobile operator charges.
Historical changes of premium rate out payment has (to date) been to the benefit the Purchaser.

Term and Termination - Without prejudice to its other rights and remedies, either party may terminate this Agreement forthwith at any time by giving notice in writing to the other party if:

either party submits to the other 30 days written notice of termination prior to the next agreed term of service, be that ‘monthly ongoing’ rental, a quarterly agreement or 12 month contract for services, or the other party commits persistent breaches of any provisions of this agreement or a material breach (for the avoidance of doubt any breach of PhonepayPlus rules will constitute a material breach) of any provision of this Agreement and provided that such material breach is capable of remedy, fails to remedy the same within 10 Business Days after receipt of a written notice from the other party giving full particulars of the breach and requiring it to be remedied; or through non payment of invoice(s) the other party is or may be (in the reasonable opinion of the Company) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business.

In such case the Purchaser will pay the Company all sums properly due in respect of all Services provided up to and including the termination date and any additional costs reasonably incurred as a result of the termination of the Services, such as expenses legitimately incurred following termination and costs relating to sub-contracts, project solution/application development (including WAP site design and delivery) and short codes.

Termination of this Agreement does not affect the accrued rights, obligations or liabilities of the Parties prior to termination.

The following Clauses shall survive termination of this Agreement: Invoicing/Payments, Term and Termination, Compliance and Responsibilities, Intellectual Property Indemnity and Confidentiality and Liability.

Upon termination under these terms the Company shall be entitled to suspend any further deliveries of the Products or Services or performance of Specified Services under the Agreement/Contract without any liability to the Purchaser and if the goods or services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. Termination of the Contract shall not affect any rights which have accrued prior to termination.

Any termination of the Agreement shall not affect the Purchaser’s obligation to pay any amounts
outstanding at the time of termination and no refund shall become due.

Interruptions and Omissions in Service

Errors and omissions, interruptions of Service(s) 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(s) 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(s) may rely on third parties such as mobile network operators. As their performance is out of our direct control we do not accept liability for failure or non-performance of their systems.

Force Majeure

If either Party (“Affected Party” be that the Purchaser or the Company) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement (other than an obligation to make payment) by a Force Majeure Event (as defined in the clause detailed below):

the Affected Party’s obligations under this Agreement shall be suspended for so long as the Force Majeure Event continues;

the Affected Party shall forthwith notify the other Party (“Other Party”) in writing of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event, the estimated duration of the Force Majeure Event (if known) and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;

the Affected Party shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement in any other way that is reasonably practicable; and

as soon as reasonably possible after the cessation of the Force Majeure Event the Affected Party shall notify the Other Party in writing of the cessation of the Force Majeure Event and shall resume performance of its obligations under this Agreement.

If the Force Majeure Event shall continue for more than sixty days either Party may terminate this Agreement by giving not less than five business days’ notice in writing to the other Party.

For the purposes of this clause, "Force Majeure Event" means any event beyond the reasonable control of a Party including strikes, lock-outs, labour disputes (not involving the workforce of the Affected Party), acts of god, war, terrorist act/threat, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, fire, flood, storm, or failure or any omission of any government or authority; obstruction or failure of telecommunication services or any other delay or failure caused by a third party. In such an event, we reserve the right to cancel or suspend our services without incurring any liability.

Miscellaneous

The Purchaser shall be responsible for compliance with all relevant laws and regulations and for obtaining and maintaining at its expense any licenses and governance clearance control consent or other authorisations and permits required in connection with the purchase of any Products and Services.
The Company may perform its obligations hereunder through agents or subcontractors; the contract may be assigned by the Company but shall not be assigned by the Purchaser without the Company’s prior written consent. References herein to the Company include references to any assignee of the Company’s rights or obligations under this contract.
This Contract constitutes the entire agreement between the parties as to the matters to which it relates and supersedes all previous agreements between the parties and may only be varied by written agreement of the parties. All prior representations or statements made before this Contract was entered into and not expressly repeated in it are withdrawn and of no effect.
If any provision of this Contract is held by any Court or other competent authority to be void or unenforceable in whole or in part this Contract shall continue to be valid as to the remaining provisions.
A notice to be given hereunder by either party to the other may be served personally upon the other or by sending the same by pre-paid post addressed to the other party in the case of the Company at its registered office and in the case of the Purchaser at its registered office or address for delivery or trading address of the Goods or Services or last known address. Any notice sent by post shall be deemed to be served on the date after posting and in proving such service it shall be sufficient to show that a letter containing the same was properly addressed stamped and posted.
This Contract and these conditions shall be governed by and construed in accordance with English law and both the Company and the Purchaser shall submit to the non exclusive jurisdiction of the English courts.
It is not intended that any third party should be entitled to enforce terms of this agreement (unless otherwise expressly so provided) purely by virtue of the Contracts (Rights of Third Parties) Act 1999.

CONTRACTS AND GOVERNING LAW – As a customer of a UK business you are protected by UK law. In particular CYMBA INTEGRATED SOLUTIONS LTD seek to meet our obligations under:

The Trade Descriptions Act 1968
The Consumer Credit Act 1974
The Unfair Contract Terms Act 1977
The Sale of Goods Act 1979
The Supply of Goods and Services Act 1982
The Consumer Protection Act 1987
The Data Protection Act 1998

Under this agreement you agree to the exclusive jurisdiction of the English Courts in respect of any dispute or matter arising out of or in connection with the Service.

PRIVACY NOTICE

PURCHASERS PROVIDING LISTS OF MOBILE PHONE NUMBERS FOR BROADCAST MUST UNDERTAKE NOT TO INCLUDE MOBILE NUMBERS FROM OTHER PARTIES WITHOUT PROOF THAT THE PROPOSED RECIPIENTS HAVE AGREED TO THIS USE.

IF ANY CLIENT IS DEEMED NOT TO COMPLY WITH ANY OF THESE CONDITIONS THEN SERVICES TO THAT CLIENT WILL BE TERMINATED AT THE SOLE DISCRETION OF CYMBA INTEGRATED SOLUTIONS LTD.

ALL DATA PROVIDED TO CYMBA INTEGRATED SOLUTIONS LTD BY ITS CLIENTS WILL REMAIN THE PROPERTY OF ITS CLIENTS AND WILL NOT BE DISCLOSED TO OTHER PARTIES.

CYMBA INTEGRATED SOLUTIONS LTD DOES NOT SELL, RENT OR OTHERWISE DISTRIBUTE MOBILE OR EMAIL DETAILS TO OTHER PARTIES.

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 and Services. The Purchaser is responsible for regularly reviewing the terms and conditions and additional terms posted on particular web pages including invoices and outstanding invoice reminders. Continued use of the CYMBA INTEGRATED SOLUTIONS LTD Websites/Services constitutes an agreement to all such terms, conditions, and notices.

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 on related correspondence from this time.
To us by email or by post to our address shown on this website.

To notices sent by email (including via our email invoicing 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 day business day after posting.

By using services of The Company, you agree to the terms and conditions above.

We look forward to providing you with the most effective mobile marketing available.

Terms and Conditions of CYMBA INTEGRATED SOLUTIONS LTD.
Version 3.0 dated JAN 18 2009

SMSshortcodes.co.uk is a trading name/website of Cymba Integrated Solutions Ltd.
110 Gloucester Avenue, London, NW1 8HX.

a division of Cymba Integrated Solutions Ltd.

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