Terms of Service
TM4B Ltd provides its Service (as defined below) to you subject to the terms and conditions of this Agreement ("Terms" or "Agreement"). Please read this Agreement fully and carefully before using the Service.
This Agreement is between you (someone wanting to use the Service) and us (TM4B Ltd incorporated and registered in England and Wales with company number 4840038 whose registered office is International House, 10 Churchill Way, Cardiff, CF10 2HE, United Kingdom).
By registering for and/or using the Service in any manner, you agree that you have read, understand and accept this Agreement and all other operating rules, policies and procedures referenced herein, each of which is incorporated herein by this reference and each of which may be updated from time to time as set forth below, to the exclusion of all other terms.
If you are accepting on behalf of an organization, you represent and warrant that you have the authority to do so.
We reserve the right, at our sole discretion, to change the terms of this Agreement from time to time without notice. We will, however, announce any changes through the Client Portal. Your continued use of the Service after any such changes constitutes your agreement to the changes.
If you do not understand and unconditionally agree to be bound by all the terms of this Agreement, DO NOT USE the Service.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Active Users: those accounts which have used the Service in the 3 months prior to a specific date of action.
Authorised Users: those employees, agents and independent contractors who are authorised by you to use the Service.
Business Day: a day other than a Saturday, Sunday or public holiday in England when most banks in London are open for business.
Client Portal: that part of the website through which you administer your account.
Confidential Information: information that is deemed confidential as per Clause 9.
Customer Data: information associated with your account that we collect, hold and/or use.
Documentation: the user instructions we make available showing how to use the Service.
Fees: the fees payable by you to us for Paid Services.
Inbound SMS: text-messages sent to virtual numbers that we provide.
Normal Business Hours: 0900 – 1700 local UK time, each Business Day.
Outbound SMS: text-messages sent to mobile devices through us.
Paid Service: parts of the Service which are subject to payment now or maybe in the future.
Payment Processor: a third party company appointed by us to process payments.
Service Credit: the balance allocated to your account against which we deduct the Fees.
Service: all our platforms, programs, features, functions, reports, instructions, code samples, help files, technical documentation, portals, technical support, add-ons, upgrades, updates, SDKs, APIs or software provided delivered through the www.tm4b.com web domain or other *.tm4b.com subdomains.
Support Service Policy: our policy for providing support in relation to the Service.
Telco: telecommunications company.
Virtual Number: a telephone number without a directly associated telephone line that forwards incoming messages to our platform.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assignees.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to all genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date on which you register for the Service and shall include all subordinate legislation made under that statute or statutory provision.
1.8 References to clauses, schedules and paragraphs are to the clauses, schedules and paragraphs of this Agreement.
2.1 We shall provide the Service to you subject to the terms of this Agreement.
(a) With respect to Outbound SMS, the Service is limited to forwarding your text-messages to Telcos for them to deliver to mobile users and then providing you with any meta data that Telcos return to us with respect to those messages.
(b) With respect to Inbound SMS, the Service is limited to making available to you text-messages sent from mobile users to Virtual Numbers as provided to us by Telcos.
2.2 We shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for planned maintenance carried out between 21:00 – 05:00 London time and unplanned maintenance (provided we have used reasonable endeavours to avoid it).
2.3 We will provide you with our standard customer support services at no extra cost in accordance with our standard Support Service Policy. You may purchase enhanced support services separately.
2.4 We may change the Service in any way at any time for any reason, including the discontinuation of various features.
3. Customer Data
3.1 You own all right, title and interest in and to all Customer Data and have sole responsibility for its legality, reliability, integrity, accuracy and quality.
3.2 In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore it from the latest backup of such Customer Data. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
3.4 Where applicable, you shall ensure that you are entitled to transfer Customer Data to us so that we may lawfully use, process and transfer it in accordance with this Agreement on your behalf.
3.5 Where applicable, you shall ensure that the relevant third parties have been informed of and given their consent to such use, processing and transfer as required by all applicable data protection legislation.
3.6 We shall process Customer Data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time.
3.7 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of Customer Data or its accidental loss, destruction or damage.
4. Third-Party Providers
4.1 We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any third-party service providers, or any transactions completed and any contract entered into by you, with any such third party.
4.2 Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party and not us.
4.4 We do not endorse or approve any third-party websites nor the content of any of the third-party websites, even if made available through the Service.
5. Our Obligations
5.1 We undertake that the Service will perform substantially in accordance with the Documentation and with reasonable skill and care. This does not apply to the extent of any non-conformance which is caused by use of the Service contrary to our instructions and policies. If the Service does not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of our undertaking in this clause.Notwithstanding the foregoing, we:
(a) do not warrant that your use of the Service will be uninterrupted or error-free; or that the Service will meet your requirements;
(b) disclaim all express and implied warranties as to the accuracy, completeness, non-infringement, merchantability or fitness for particular purpose of the Service generally and any content or services contained therein, as well as all express and implied warranties that the operation of the Service generally and any content or services contained therein will be uninterrupted or error-free.
(c) are not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and you acknowledge that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(d) shall in no event be liable for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of the Service generally and any aspect ancillary thereto.
6. Your Obligations
6.1 Subject to the restrictions set out by this Agreement, you agree to use the Service solely for your internal business operations and we reserve the right, without liability or prejudice to our other rights, to disable your access in case of any breaches of this Agreement. The rights provided are granted to you only and shall not be considered granted to any subsidiary or holding company.
6.2 You are responsible for:
(a) Complying with the terms of this Agreement, including the terms of our Acceptable Use Policy.
(b) All the activity which takes place in connection with your account, including the accuracy, completeness and appropriateness of any content transmitted.
(c) Handling your account's credentials (i.e. login password, API keys etc.) carefully. You shall notify us immediately if you have reason to believe that there has been or is likely to be an unauthorized or impermissible use of your account.
(d) Providing us with all necessary cooperation in relation to this Agreement and all necessary access to such information that we may require to enforce it.
(e) Complying with all applicable laws and regulations with respect to your activities under this Agreement.
(f) Carrying out all of your responsibilities in a timely and efficient manner. In the event of any delays in your provision of such assistance, we may adjust any agreed timetable or delivery schedule as reasonably necessary.
(g) Ensuring that any Authorised Users use the Service in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement.
(h) Obtaining and maintaining all necessary licences, consents and permissions necessary for us, our contractors and agents to perform our obligations under this Agreement.
(i) Ensuring that your network and systems comply with any relevant specifications that we may provide from time to time.
(j) Procuring and maintaining the network connections and telecommunications links from your systems to our data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
6.3 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify us.
7. Fees and Payment
(a) Our provision of Paid Services is done according to the pricing laid out on our website or otherwise agreed in writing.
(b) Paid Services are provided on a prepaid basis and you are required to purchase Service Credit in advance of actual use, in the currency we specify, without the right of set-off, deductions or counterclaim.
(c) Unused Service Credit (less any associated transactions fees) can be refunded upon request within 14 days of purchase through the corresponding means of payment it was purchased through.
(d) Unused Service Credit on accounts that engage in actions prohibited by our Acceptable Use Policy will not be refunded.
(e) Unused Service Credit expires after a period of 365 days from the date of purchase.
(f) We guarantee the delivery of Outbound SMS provided that destination number/handset (i) is supported by our network coverage (ii) is not blocked by any network operators (iii) is switched on (iv) has sufficient memory (v) does not use an SMS blocker and (vi) is not roaming away from their home network. You can request such refunds within 72 hours and we will provide them to you by way of Service Credit Notes applied to your account. For the avoidance of doubt, Outbound SMS is billed according to message submission and not delivery.
(g) Payments made through Payment Processors are subject to their terms, conditions and privacy policies in addition to ours. We are not responsible for any errors they may make.
(h) You may choose to automate the purchasing of Service Credit whenever your balance drops below a minimum threshold that you define. Your use of this feature represents your authorisation for purchases to be made on your behalf. Please ensure that your billing information is kept current, complete and accurate to ensure that such purchases can be made.
(i) Any free trial or promotion that provides access to a Paid Service must only be used within the time specified.
(j) We reserve the right to change our fees from time to time. We will only send you a courtesy email if your usage in the previous 3 months indicates that you will be affected by any such changes. Your continued use of the Service after a price change constitutes your agreement to pay the changed amount.
(k) All prices are exclusive of value added tax, which we will add according to the appropriate rates.
8. Proprietary Rights
8.1 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Service. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service.
8.2 We confirm that we have all the rights in relation to the Service that are necessary to grant all the rights we purport to grant under and in accordance with, the terms of this Agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
9.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 You acknowledge that details of the Service and the results of any performance tests of the Service, constitute our Confidential Information.
9.7 You grant us the right to use and display your name, logo and other non-Confidential Information on our website and other promotional materials. Any such use must be in accordance with your applicable usage guidelines.
9.8 The above provisions of this Clause shall survive termination of this Agreement, however arising.
10.1 You shall defend, indemnify and hold us (and our affiliates, agents, contractors and subcontractors) harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Service, provided that:
(a) you are given prompt notice of any such claim;
(b) we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense;
(c) you are given sole authority to defend or settle the claim.
10.2 We shall defend you, your officers, directors, employees, affiliates and service providers against any claim that the Service infringes any United Kingdom patent, copyright, trade mark, database right or right of confidentiality and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
(a) we are given prompt notice of any such claim;
(b) you provide reasonable cooperation to us in the defence and settlement of such claim, at our expense;
(c) we are given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
10.4 In no event shall we, our employees, agents and subcontractors be liable to you to the extent that the alleged infringement is based on:
(a) a modification of the Service by anyone other than us; or
(b) your use of the Service in a manner contrary to the instructions given to you by us; or
(c) your use of the Service after notice of the alleged or actual infringement from us or any appropriate authority; or
(d) your use of the Service in a manner contrary to the Acceptable Use Policy;
10.5 The foregoing clauses state your sole and exclusive rights and remedies and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of Liability
11.1 Except as expressly and specifically provided in this Agreement:
(a) you assume sole responsibility for any results obtained from the use of the Service by you and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
(c) the Service is provided to you on an "as is" basis.
11.2 Nothing in this Agreement excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to Clause 11.1 and Clause 11.2:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
(b) our total aggregate liability in contract (including in respect of the indemnity at Clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount spent by you you on Paid Services in the month immediately preceding the date of the first claim made.
11.4 You acknowledge that:
(a) Our ability to provide the Service depends upon limitations imposed upon us by Telcos and that we only act as a mere conduit. Our responsibility is limited to storing messages and forwarding them accordingly.
(b) Text-messages are transmitted unencrypted and eavesdropping by third parties is possible.
11.5 We hereby agree that the content of all SMS is deemed to have zero value.
12. Term and Termination
12.1 This Agreement shall commence when you register to use the Service and shall continue indefinitely unless it is otherwise terminated in accordance with the provisions of this Agreement.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect if:
(a) the other party commits a material breach of any term of this Agreement which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(d) the other party commences negotiations with any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 30 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the aforementioned events;
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
12.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Service;
(b) we may destroy or otherwise dispose of any of your Data in our possession unless we receive, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to you of the Data. If received, we shall then use reasonable commercial endeavours to deliver the Data to you within 30 days, provided that you have paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall also pay all reasonable expenses incurred by us in returning Customer Data;
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Force MajeureWe shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lockouts or other industrial disputes (whether involving our workforce or not), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14. ConflictIf there is an inconsistency between any of the provisions in the main body of this Agreement and other policies referenced by this Agreement, the provisions in the main body of this Agreement shall prevail.
15. VariationNo variation of this Agreement shall be effective unless it is in writing and signed by the parties.
16. WaiverNo failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and RemediesExcept as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to and not exclusive of, any rights or remedies provided by law.
18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19. Entire Agreement
19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in this Agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with any of your rights or obligations under this Agreement.
20.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
21. No Partnership or AgencyNothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Third-Party Rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assignees) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23.1 Any notice required to be given under this Agreement shall be in writing, sent by email or pre-paid first-class post or recorded delivery post to the other party at its address.
23.2 A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice delivered by email shall be deemed to have been received at 9am on the first business day after sending it.
24. Governing Law
This Agreement and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement or its subject matter or formation (including non-contractual disputes or claims).