Updated 19th March 2018
By signing up to our services and affirming that you agree to our Terms of Service through the sign-up process, you are entering into the Agreement with the legal entity set out below which shall be referred to as “we”, “our”, “us” or “Nevis Systems”.
Legal Entity you will be entering into an agreement with –
|You are contracting with:||Notices should be addressed to:||The governing law is:||Dispute resolution:|
|Nevis Systems Limitedt/a World Text||Nevis Systems Limited, 25 Kingsway House, Kingsway, Gateshead, Tyne and Wear, NE11 0HW, United Kingdom||English law||North East England|
Scope of the agreement
Nevis Systems offers services and products including, but not limited to:
Customer agrees to purchase the Services pursuant to the terms and conditions set out in this Terms of Service and the attachments hereto including e.g. Service Orders (referred to as the “Agreement”).
If the parties desire to include additional Services under this Agreement, such services will be set forth in subsequent Service Orders, Change Orders or Exhibits signed by authorized representatives by both parties.
In the event of a conflict among any of the components of this Agreement, precedence will be given in the following order: (a) Terms of Service, (b) Service Order(s)/Change Order(s)/Exhibit but solely with respect to the Service(s) covered by such Service Order/Change Order/Exhibit.
Authorisation and Effectiveness
The account creator represents to Nevis Systems that they are a duly-authorised representative and signatory of the corporate entity named in the account and that the information provided is complete and accurate. The corporate entity named in the account accepts the Terms of Service and the Exhibits. The Agreement shall be effective on the date at which time the account is created and verified.
The Agreement contains the legal terms and conditions that govern our provision of Services and your use of and access to the Services. You are entering into the Agreement with the legal entity set out in the account which shall be referred to as “we”, “our”, “us” or “Nevis Systems”. By creating an account and electronically accepting the Terms of Service or using the Services, you agree to and are legally bound by the Agreement. If you do not accept all of the terms contained in the Agreement, you may not use the Services. Any individual person, who accepts the Agreement on behalf of an Entity, represents to Nevis Systems that it has the authority to bind such Entity to the Agreement. In the Agreement: (i) the Entity represented by the individual accepting the Agreement; or (ii) the actual individual, where the individual enters into the Agreement as a sole proprietor or trader, shall be referred to as “you” “your” or “Customer”.
If you have a Prior Agreement, it shall be deemed terminated (to the extent it covers the Services provided pursuant to these Terms of Service and/or a Service Order) upon the applicable Service Order Effective Date and without prejudice to any of our or your accrued rights and liabilities under such Prior Agreement. Your use of and access to the Services are subject to additional terms that include without limitation the Supplemental Terms. Supplemental Terms may be presented or made available to you through means determined by us.
Nevis Systems and Customer agree that the non-binding date for the start of the Services will be the date on which the account is created and verified, hereinafter referred to as the “Service Start Date”. The date for the Service Start Date may be adjusted at our sole discretion, in which case we will notify you of the revised Service Start Date.
We reserve the right (but are not obliged) to provide certain Services to you under the Agreement without a Service Order. Capitalized terms in the Agreement shall have the meanings given to them in Section 18 of these Terms of Service unless otherwise defined in an applicable Section of the Agreement.
You agree that you will not, and will not encourage or permit any party (including but not limited to Service Users) to, access or use the Services: (a) other than as expressly prescribed by the Agreement; (b) in violation of: (i) Compliance Rules or Relevant Laws or (ii) applicable third party licenses; (c) to send spam or unsolicited messages or other communications; (d) in any manner that is infringing, obscene, threatening, libelous, unlawful, or in violation of any third party rights; (e) to breach, interfere or attempt to interfere with any requirements, procedures, policies, or regulations of any mobile industry association, Regulator or any Service Provider; (f) to facilitate the transmission or use of any: (i) malicious code (including malware, viruses, worms, and Trojan horses); (ii) traps, time bombs, or other code with a latent ability to disable or cripple software or services; or (iii) code that would allow any third party to interfere with or access any Data; (g) to circumvent, disable, violate, or otherwise interfere with the security or integrity of the Services, their operation, any networks or servers used in connection with the Services, or any activity being conducted in or in relation to the same (or attempt at any of the foregoing); (h) to gather, store, upload or otherwise transmit any Data for which you do not have a right to do so; (i) support or carry any emergency calls to any medical rescue, emergency, or law enforcement agency, service or provider of any kind; or (j) to impersonate any person or entity. Additionally, you agree to promptly comply with all requests for documentation and information we make relating to your use of the Services.
You retain all rights and ownership of Data. We do not claim any ownership rights in Data. Except for rights expressly granted herein, no implied licenses are granted by us, and we hereby reserve all rights not so granted. You acknowledge that we retain all sole and exclusive ownership of all right, title and interest in and to the Services and our Confidential Information (defined below), including all intellectual property rights thereto, and at no time will you dispute or contest our exclusive ownership rights in any of the foregoing. If you provide any Feedback, we will own such Feedback and may use and modify the Feedback without any restriction or payment to you.
Except as expressly stated in a Service Order, we reserve the right, in our sole discretion and with or without notice from time to time, to modify or update any Services (including but not limited to the features, scope, reach and functionality). Additionally, we may amend the Agreement (or any part thereof), and such amendment will take effect on the date we designate (or upon expiration of the minimum period of notice we are required to provide under Relevant Law). Further and without limit, we specifically reserve the right to make changes to the Terms of Service by publishing a revised version at https://www.world-text.com/docs/terms-of-service.php (or any successor URL we determine) as may be updated by us from time to time. If an amendment to the Agreement or Services is to your material detriment, you may terminate either: (i) the affected Service Order; or (ii) the affected Service, upon written notice within thirty (30) days following the effectiveness of such amendment (or by the date which you are entitled to terminate under Relevant Law).
You shall (and shall ensure that your customers, affiliates, employees, contractors and agents shall) ensure that all use of the Services and all Data complies with Relevant Laws and the Compliance Rules. You shall provide (and shall ensure that your customers, affiliates, employees, contractors and agents shall provide) all co-operation as is required by us to enable us to comply with requests and investigations by Regulators, law enforcement agencies and Service Providers relating to the Services and Data.
Each party will, during the Term and thereafter, maintain in confidence the Confidential Information of the other party and will not use such Confidential Information except as expressly permitted herein. Each party will use the same degree of care in protecting such Confidential Information as such party uses to protect its own confidential information from unauthorised use or disclosure, but in no event less than reasonable care. Each party will use such Confidential Information solely for the purpose of carrying out its respective rights and obligations under the Agreement. In addition, each party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its rights and obligations under the Agreement; and (b) will only disclose such Confidential Information to its affiliates, employees and consultants who have a need to know such Confidential Information in order to perform their rights and obligations relating to the Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of the Agreement through no fault of the receiving party; (b) the receiving party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing party; (c) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the Confidential Information; or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Either party may disclose Confidential Information of the other party (and we may disclose any Data) to the extent required by law, Regulators or Service Provider request.
You hereby grant us a limited, non-exclusive, non-transferable, royalty-free, non-revocable, perpetual, non-sublicenseable license to display your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that you use or have used the Services, including on our website, in press releases and in other media.
We may make an Account available to you for the purposes of testing of certain Services (with or without a test Account and Service Order, at our discretion). The terms of the Agreement shall govern your use and access to such test Account and test Services. You shall ensure that the test Account and test Services are used only for the purpose of testing, and not for any productive, commercial or other purpose (such restriction prevailing over any other provision to the contrary in the Agreement). You shall comply with any relevant instructions or protocols we notify you of in relation to the test Account and test Services. The Fees for such test Account and test Services shall be as determined by us from time to time. You agree that we can withdraw such test Account and test Services at any time (with or without notice to you).
Applicable governing law and venue are set out in the Introduction. We may, however, bring enforcement proceedings against you in any jurisdiction.
Nevis Systems may provide all written notices hereunder to any email address under your Account, effective upon transmission. If an email address under your Account is not valid, or we for any reason are not capable of delivering to you any notices required/permitted by the Agreement, our dispatch of the email containing such notice will constitute effective notice. We may also give notice to you at the postal address listed in your Account, which shall be deemed effective on the date of dispatch. You may give notice to us at the applicable address set out in the Introduction. Such postal notice will be deemed effective when received by us by letter delivered by nationally recognized overnight delivery service or recorded prepaid mail at the above address.
Neither party will be liable for failures or delays in the performance of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, in respect of the provision of the Services, failures or delays caused by Service Providers, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labor disturbance, compliance with Relevant Laws, any act or omission of Government or other competent authorities. The parties are independent contractors, and there is no partnership, joint venture, employment, franchise or agency relationship created by the Agreement. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Agreement. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without your consent however, you shall, if we require, execute such deeds and/or documents as may be necessary or required by us to give effect to any such dealing in such rights and/or obligations. A waiver of any provision of the Agreement must be made in writing to be effective, and our waiver of a breach of any provision or right contained in the Agreement will not constitute a continuing waiver or waive any subsequent breach or right. You shall, in relation to this Agreement, comply with all Relevant Laws which are applicable to you, including but not limited to export control laws and regulations, economic, trade and financial sanctions laws, regulations, embargoes, restricted state lists or restrictive measures administered. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention, and the remaining provisions will not be affected. The Supplemental Terms will prevail in the event of a conflict with the Terms of Service, but only to the extent such conflicting term relates to the Services governed by those Supplemental Terms. In all other cases, the Terms of Service will prevail in the event of a conflict with another part of the Agreement, unless such other part of the Agreement intends and expressly states that the specific term supersedes. Further, the fact that a part of the Agreement does not contain a provision relating to particular matter, which another part of the Agreement does have a provision for, shall not be deemed to give rise to a conflict. Any Nevis Systems Affiliate is entitled to enforce any provision of this Agreement which confers a benefit on it (however the consent of such Nevis Systems Affiliate shall not be required to amend or terminate the Agreement in accordance with its term). There are no other third party beneficiaries to the Agreement and any Relevant Law, which may grant third party rights, is expressly excluded. The Agreement is the parties’ entire agreement relating to its subject, and supersedes any and all prior oral and written proposals, agreements, understandings and contemporaneous discussions between the parties as to the subject matter. Neither party has entered into the Agreement (or any part thereof) in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other party or any other person) which is not expressly set out in the Agreement. The only remedies available for breach of any representation or statement which was made prior to entry into the Agreement (or any part thereof) and which is expressly set out in the Agreement shall be for breach of contract (although nothing in this Section shall be interpreted or construed as limiting or excluding the liability of either party for any type of fraud). The terms contained in any purchase order, order form or similar document, will have no force or effect, and will not be binding upon us. The parties may sign the Agreement (or any part thereof) electronically and in counterparts, each of which is deemed an original and, together, comprise a single document. Each party to this Agreement agrees to use electronic signatures; and be subject to the provisions of the applicable national laws governing electronic signatures.
“Account” your account with us for the Services.
“Account Information” information you supply in relation to your Account.
“Accrued Liability” when calculated at any given time, the total Fees, Taxes and ETC’s invoiced under the Agreement which remain unpaid, plus the unbilled but accrued Fees, Taxes and ETC’s.
“Affiliate” an entity that directly or indirectly controls, is directly or indirectly controlled by, or is under common direct or indirect control with, a party. For purposes of this Agreement, “control” of any entity shall mean ownership of a majority of the voting equity interests or profit interests in such entity.
“Application” an application owned by you and offered by you under a brand controlled by you.
“Confidential Information” all information disclosed (whether in oral, written, or other tangible or intangible form) by a party to the other party concerning or related to the Agreement (whether before, during or after the Term), which the receiving party knows or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of the disclosing party. Our Confidential Information includes, but is not limited to, the Agreement, our pricing, our intellectual property rights and the Services.
“Change Order” the document provided by us (and entered into by both you and us) which details changes to Service Orders, Services, Fees and other Service-related terms (and which is governed by the Terms of Service).
“Claim” claim, action, demand, allegation or proceeding brought or made.
“Nevis Systems Limited” Nevis Systems Limted t/a World Text, a company incorporated in Scotland, with company registration number SC106760 and VAT No. GB735360440.
“Compliance Rules” rules and restrictions (as may be updated by us from time to time) pertaining to the use of the Services, including without limitation the Messaging Compliance Rules at https://www.world-text.com/docs/compliance-guide.php (or any successor URL we stipulate) or as otherwise provided to you by us.
“Content” messages, information, data, text, software, music, audio, photographs, graphics, video, messages or other materials stored or transmitted via the Services in any medium.
“Credentials” names, passwords and other information provided to you or created in accordance with our policies.
“Credit Balance” a credit balance on a prepay Customer’s account.
“Credit Limit” the aggregate credit limit of all sums payable by you to us which is applied by us to your Account.
“Data” Account Information, Content, Personal Data and any other information made available to us in connection with the use of the Services.
“Data Controller” has the meaning given to it in the applicable Data Protection Laws.
“Data Processor” has the meaning given to it in the applicable Data Protection Laws.
“Data Protection Laws” the Relevant Laws relating to the collection, use, storage or disclosure of information about an identifiable individual.
“Documentation” the technical documentation made available to you by us regarding any portion of the Services, which includes without limitation the relevant Service Specification(s).
“Entity” a corporation, company, body corporate, unincorporated association, state, governmental or statutory body or authority, and/or a partnership.
“ETC” the early termination charge, which unless specified otherwise in a Service Order, shall be 100% of any monthly Recurring Fees (where charges are billed monthly) for a Service (including but not limited to the minimum monthly fee) payable for the remainder of the Initial Term or Renewal Term, as applicable. For any Fees billed annually in advance, the ETC shall be 100% of the annual Fee.
“Fees” the charges payable for the Services including but not limited to Recurring Fees, Non-Recurring Fees and One-Time Fees.
“Feedback” the ideas, suggestions or recommendations on the Services provided by you.
“Fine” any and all fines, penalties, refunds, charges, debits, deductions, legal fees and costs incurred by or other sums payable to a Service Provider or Regulator.
“Initial Term” in respect of a Service, is the minimum period (commencing on the Service Order Effective Date), which you are committed to purchase that Service. Unless detailed otherwise in a Service Order, the Initial Term of each Service shall be twelve (12) months.
“Losses” all losses, damages, liabilities, costs, expenses, Fines and penalties (including without limitation reasonable legal fees and costs).
“Non-Recurring Fees” includes but is not limited to usage based fees and Service Provider pass through fees.
“Numbers and Codes” numbers and/or codes which we make available for you to use as part of the Services, including (but not limited to), short codes, long numbers, VSIM (Virtual SIMs), hosted SIMs and/or alphanumeric sender ID’s.
“One-Time Fees” one-off fees, including but not limited to set-up fees.
“Personal Data” information about an individual that is defined as “personal data” or “personal information” in the applicable Data Protection Laws.
“Prior Agreement” any other agreement you have entered into with Nevis Systems Limited, prior to the effectiveness of the Agreement, which governs your use of the Services or any part of them.
“Recurring Fees” non-usage based fees, including but not limited to minimum fees and lease fees.
“Regulator” any regulator or other authority, voluntary or otherwise, which a party is regulated by.
“Relevant Laws” any statute, regulation, bylaw, ordinance or subordinate legislation which is in force for the time being to which a party is subject; the common law as applicable to the parties (or any one of them); any binding court order, judgment or decree applicable to the parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms enforceable by law, which is in force for the time being, and/or stipulated by any Regulator to which a party is subject, in each case, for the time being.
“Renewal Term” in respect of a Service, is the same length of time as the Initial Term for that Service unless otherwise set out in the Service Order, with the first Renewal Term commencing upon expiry of the Initial Term and subsequent Renewal Terms commencing on expiry of each Renewal Term.
“Service Level Agreement” (also “SLA”) the document or documents setting forth our standard support terms and service levels for the Services, as provided to you by us.
“Service Order” the document provided by us (and entered into by both you and us) which details the applicable Services, Fees and other Service related terms (and which is governed by the Terms of Service).
“Service Order Effective Date” the date detailed in a Service Order, being the date which it takes legal effect.
“Service Provider” any entity (including without limitation, a mobile network operator, mobile virtual network operator, signaling provider, messaging aggregator or hosting provider, that directly or indirectly provides a service to us or an Affiliate of ours) that is used in relation to the provision of any of the Services.
“Services” your use of and access to the platform, software (including any and all software development kits, API and all other software and tools provided to you by us in order to enable you to use the Services and integrate them with Applications), Documentation and any services made available to you or as set forth on a Service Order.
“Service Specification” the document or documents detailing a description of the Services, as provided (or otherwise made available) to you by us.
“Service Start Date” means as defined in the third paragraph of the Introduction of these Terms of Service.
“Service User” means any user of the Services, whether or not you have a contractual relationship with such user including (without limitation) any of your customers (or any other third parties to whom the Services are subsequently resold or made available) or any of your affiliates, suppliers, employees, contractors, agents.
“Supplemental Terms” the Documentation, Compliance Rules, SLA and any other terms governing your use of the Services.
“Taxes” applicable taxes, duties, and similar charges, including sales, usage, excise and value added taxes
“Term” the term of the Agreement, which commences on the date referred to in Section 5(a).
“Terms of Service” these terms of service.
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