1 DEFINITIONS
1.1 In these Conditions:
1.1.1 “Charges” means the Set Up Charges, Administration Charge, Key Word Charges and standard rate messages charges – each a “Charge” and together the “Charges”
1.1.2 “the Company” means The Messaging Centre Limited of 65 New Cavendish Street, London W1G 7LS (Registered Number 04552219);
1.1.3 “End-User” means the person who receives or responds to Short Codes;
1.1.4 “End-User Data” means information gathered which relates to End-User’s;
1.1.5 “Network Operator” means a telecommunications network operator;
1.1.6 “Outpayments” means as set out in schedule 1a;
1.1.7 “Platform” means the mechanism by which the Service is offered and managed;
1.1.8 “Regulator” means a national telecommunications regulatory authority or any other competent body or authority;
1.1.9 “Service” means the offering of Short Codes and the ability to send Short Codes to End-Users;
1.1.10 “Short Codes” means the sending of premium rate and standard rate messages to, or soliciting premium rate messages to be sent by end users via one or more numbers;
1.1.11 “Set-Up Charge” means the Set-Up Charge set out in the Connection Agreement which forms part of these Conditions;
1.1.12 “You/Your” means the company, organisation or individual for whom the Company has agreed to provide the Service in accordance with these Conditions;

2 CONDITIONS APPLICABLE
2.1 These Conditions apply whenever You use the Platform to access and use the Service and shall govern the contract for the supply of the Service to the exclusion of all other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in writing by the Company.

3 CHARGES AND PAYMENT
3.1 The terms of payment offered to You including direct debit payments are subject to the Company’s continued agreement and approval.
3.2 The Company may make a search with a credit reference agency which will keep a record of that search and share that information with other businesses. The Company may also make enquiries about the directors with a credit reference agency.
3.3 As soon as the Company receives the Conditions signed by an authorised representative on Your behalf it will send You an invoice for the Set-Up Charge. Payment of the Set-Up Charge is due immediately upon receipt of the Company’s invoice.
3.4 Administration or Key Word Charges will be invoiced immediately upon your connection to the Platform and then monthly in advance.
3.5 You will be invoiced monthly in arrears based on the actual number of messages sent for any standard rate messages that You send regarding the operation of end user accounts (e.g. account information or marketing messages).
3.6 Payment of the Charges is due in accordance with the payment terms detailed in the Connection Agreement that forms part of these Conditions.
3.7 The Company reserves the right to suspend or terminate your access to the Platform where the Charges set out in clause 3.6 above are not received by the Company on the due date. In addition where any Charge or Charges are not paid in accordance with the Company’s payment terms set out in the Connection Agreement the Company reserves the right in its sole discretion to suspend your access to the Service and cease to convey any messages provided by You and/or withhold any outpayments due to You until payment of the outstanding sum is received. The Company further reserves the right to charge You interest on the overdue Charge or Charges from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4 per cent per annum above the base rate for the time being of HSBC Bank plc, a part of a month being treated as a full month for the purpose of calculating interest.
3.8 The Company reserves the right to vary any of its Charges on giving You not less than 90 days’ written notice. If You do not agree with any proposed Charge variation You have the right to terminate these Conditions on giving the Company not less than 30 days’ written notice with such notice to take effect on the effective date of the Charge variation.

4 THE SERVICE
4.1 The Service enables You to send Short Codes that are required to access the network of each Network Operator.
4.2 Each Network Operator retains full ownership at all times of the Short Code(s) required to access its network and Your access to or use of the Service via any Short Code in no way transfers any further rights to You in that Short Code. The allocation and/or use of any Short Code will be subject to all applicable regulations, directions or instructions issued or given from time to time by the relevant Network Operator or Regulator.
4.3 If You use a Short Code that is shared with other users, You understand that other users of the Service will be sending messages to, or soliciting messages to be sent by, end-users via the same Short Code. You will not receive messages intended for other users and other users will not receive your messages.

5 KEY WORDS
5.1 If You use a shared Short Code, one or more Key Words (“Key Words”) are required for You to use the Service via that shared Short Code in order to distinguish Your use of the Service from use of the Service by other users via the shared Short Code.
5.2 Any Key Word must be agreed in advance with the Company before it may be used and the Company reserves the right to grant or refuse permission for You to use any Key Word in its sole discretion.

6 PROVISION OF AND INTERRUPTIONS TO THE SERVICE
6.1 The Company will provide the Service to You using reasonable care and skill but You acknowledge that access to the Service and the Platform, your ability to access and/or use the Service and the sending of messages to and from end-users may not be uninterrupted and that they may not be error free and reception could be subject to delays depending on factors beyond the Company’s control including but not limited to factors affecting the operation of the Platform and/or preventing the delivery of messages to end-users such as geographical or topographical shortcomings in the network of any Network Operator, network capacity, physical obstructions or atmospheric conditions or factors preventing end-users from sending or receiving messages such as the terms and conditions of an end-user’s service provider.
6.2 Beyond using reasonable care and skill the Company accepts no responsibility or liability to make the Platform and Service available to you at all times or free from faults or interruptions or to guarantee the receipt by an intended recipient of any message sent using the Service.
6.3 If at any time the Service becomes unavailable whether in whole or part the Company will use reasonable efforts to inform You as soon as reasonably possible of any such unavailability through e-mail, the Company’s website or other appropriate channels.
6.4 Due to its agreements with other providers and the need to improve the Service the Company reserves the right in its sole discretion to alter or improve the Service provided any such alteration does not materially affect the nature of or detract from the functionality of the Service.
6.5 Where it is necessary from time to time for the Company or its providers to suspend part or all of the Service for routine or emergency maintenance or repairs the Company will so far as it is reasonably possible provide You with a reasonable period of notice.

7 SUSPENSION OF SERVICE
7.1 The Company reserves the right in its sole discretion to suspend Your connection to the Platform and access to the Service and to cease to send any messages provided by You and/or withhold any Outpayments due to You if:
7.1.1 You are in material breach of any of the provisions of these Conditions and/or any applicable codes of practice, guidelines, rulings or regulations of any Regulator relating to the Service which may be in force or introduced from time to time during the term of the Conditions and with which You must comply or to which You have agreed to be bound including those issued by any global regulatory body;
7.1.2 a Network Operator or a Regulator requires it;
7.1.3 in Your use of the Service or in relation to the Service You are doing or have done anything which is or may be illegal or unlawful;
7.1.4 at any time the number of messages that You are sending to the Platform exceeds any forecast You have given the Company of the message traffic that You expected to be using the Service to send at that time (“Forecast”) or in the absence of any applicable Forecast, the number of messages that You are sending to the Platform at any time causes or is likely to cause congestion to the whole or part of the Platform; or
7.1.5 any other term of these Conditions allows us to terminate the Conditions.

8 CONFIDENTIALITY AND DATA PROTECTION
8.1 The Company will keep confidential at all times all information acquired as a consequence of these Conditions in respect of You or Your business, with the exception of information already in the public domain or information which we are required to disclose by law or any regulatory authority or requested by any Regulator.
8.2 You will at all times keep confidential all information acquired as a consequence of these conditions in respect of the Company, the Platform or any Network Operator except for information already in the public domain or information which You are required to disclose by law or any regulatory authority or requested by any Regulator.
8.3 In processing any personal data, including the mobile telephone numbers of Your end-users who will send or be sent messages as a consequence of making the Service available to you (“End-User Data”) in connection with these conditions both parties will comply with the Data Protection Act 1998 and all regulations made under that Act or as the Act may be amended or replaced from time to time.
8.4 The Company will treat Your End-User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purpose of conveying messages and ensuring untroubled performance of the Service.

9 TECHNICAL SUPPORT
9.1 Technical support will be provided during office hours between 9am and 5.30pm Monday to Friday. A 24 hour contact number is provided outside office hours on which the Company will endeavour to respond to any request for assistance.

10 NETWORK OPERATOR OUTPAYMENTS
10.1 Under the Service, You have contracted with Your relevant end-users to provide them with certain services following receipt of premium rate messages (that You have solicited) from them. You will receive the Outpayments set out at schedule 1a which can be viewed at http://www.tmcsms.com/costspremium.aspx less the Company’s administration charge as set out on that schedule 1a or as agreed in writing between the Company and You. The Company receives Outpayments from each Network Operator (“Network Operator Outpayments”) after every month based upon the number of premium rate messages that You have solicited from Your end-users during that month that have actually been received by that Network Operator and for which the Network Operator has been able to collect payment from the relevant end-users, less the portion deducted by the Network Operator from those payments it has actually managed to collect from the relevant end-users.
10.2 Network Operator Outpayments are paid to the Company up to 60 days after the end of the month to which they relate.
10.3 You acknowledge and agree that the records of each Network Operator in relation to:
10.3.1 the number of premium rate messages from Your end-users that have been received by that Network Operator in any given month; and
10.3.2 the number of such premium rate messages for which the Network Operator has been able to collect payment from the relevant end-users,
are conclusive and, as such, the Company shall not enter into any discussion or negotiations with You with regard to any actual or perceived discrepancy between Your records of such matters and the relevant Network Operator’s records, nor shall the Company be in any way responsible or liable for any such discrepancy or making up any actual or perceived shortfall in Outpayments due to You as the result of any such discrepancy.

11 OUTPAYMENTS DUE TO YOU
11.1 The Outpayments due to You for the premium rate messages that You have solicited from Your end-users in any month and for the services You are therefore contracted to provide to those end-users will be:
11.1.1 paid out of the Network Operator Outpayments received by the Company for that month;
11.1.2 based only upon the records of each Network Operator in relation to the number of premium rate messages from Your end-users that have been received by that Network Operator in that month and for which a Network Operator has been able to collect payment from the relevant end-users; and
11.1.3 calculated in accordance with the Outpayment Schedule that forms part of these Conditions.
11.2 Any Network Operator may, from time to time, change the basis upon which they calculate the Network Operator Outpayments that they pay to the Company by altering the portion that the Network Operator deducts from gross payments it collects from Your end-users or otherwise. Any such change is completely outside the Company’s control. In the event of any such change, the Company may in its sole discretion choose to amend the Outpayments that it pays to You out of such Network Operator Outpayments by a corresponding amount. The Company will notify You of any such amendment as soon as reasonably possible and no less than 30 days before the Company brings the amendment into effect.
11.3 You acknowledge and agree that changes to the basis upon which a Network Operator calculates the Network Operator Outpayments that it pays to the Company are outside the Company’s control. If however You do not agree to any amendment the Company makes to the Outpayments as a result of any such change, You have the right to terminate these Conditions on giving the Company no less than 15 days’ written notice, such notice to take effect on the effective date upon which the Company bring the amendment into effect.
11.4 If You are sharing any Short Code, the number of premium rate messages sent by Your end-users via that Short Code and for which payment is being collected by the relevant Network Operator in any given month will be calculated by pro-rating the total number of premium rate messages for which payment has been collected from an end-user by the relevant Network Operator in that month to reflect the number of such messages that were sent by Your end-users using one or more of Your Key Words. This proportion will be used to calculate the Network Operator Outpayment due to the Company and accordingly the Outpayment due to You for that month. Again, the records of each Network Operator are conclusive for the purposes of this provision and as such the Company will not enter into any discussion or negotiation with You with regard to any actual or perceived discrepancy between Your records of such matters and the relevant Network Operator’s records nor shall the Company be in any way responsible or liable for any such discrepancy or making up any actual or perceived shortfall in the Outpayments due to You as a result of any such discrepancy.
11.5 Once the Company has calculated the Outpayments due to You for any given month, we will provide you with a self-billed VAT invoice and supporting statement based on the information provided to the Company by the Network Operators. The self-bill invoice will be available no less than 30 and no more than 40 days after the end of the month to which it relates.
11.6 Unless the Company otherwise agrees, each invoice for Outpayments will be paid 45 days after the end of the month to which it relates or on the first banking day thereafter. Notwithstanding the foregoing:
11.6.1 no payment will be made to You by the Company under these Conditions unless the total of the outstanding Outpayments due to You exceeds £100 excluding VAT;
11.6.2 the Company may withhold any Outpayments due to You if:
11.6.2.1 You are in breach of any of the Codes;
11.6.2.2 You are conducting Your business unlawfully or for an unlawful purpose or are using the Service fraudulently or unlawfully;
11.6.2.3 the Company has not received all of the Network Operator Outpayments due to it for the month in question out of which the invoice Outpayments will be made;
11.6.2.4 You have failed to obtain the necessary consents and/or licences required by any Regulator; or
11.6.2.5 they relate to an unpaid fine or administrative charge or an order for compensation, costs and/or expenses that has not been complied with as a direct result of a breach of any of the Codes by You or that has been imposed by a Regulator; and
11.6.3 the Company may set off any Outpayments that it owes to You against any sums that You owe to the Company including, but not limited to, the Charges.
11.7 The Company will make any Outpayments due to You under the Conditions by electronic transfer. Written proof of transfer will be deemed to be sufficient to demonstrate that the Company has made the relevant payment to You.

12 YOUR LIABILITIES AND OBLIGATIONS
12.1 You will not use the Service or permit the Service to be used:
12.1.1 for any purpose other than to:
(a) deliver within a message written information relating to any topic (including but not limited to news, sport, weather or entertainment), games playable on or between mobile phones, ringtones suitable for mobile phones, logos suitable for mobile phone screens and pictures and graphics suitable for mobile phones;
(b) provide services (including the delivery of digitised products) which attract VAT at the same rate and on the same basis in terms of accrual and payment as mobile telephony services from time to time and which are detailed in Schedule 4 of the Value Added Tax Act 1994; or
(c) provide any other service to which the Company have given our prior written consent which the Company may withhold in its sole discretion;
12.1.2 to send messages to any end-user without that end-user’s explicit request for or consent to receiving such message;
12.1.3 for any improper, fraudulent, immoral or unlawful purpose;
12.1.4 for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature;
12.1.5 in a manner which infringes the intellectual property rights or any other proprietary rights of any third party; or
12.1.6 in a manner that may injure or damage any person or property or cause the quality of the Service to be impeded.
12.2 You will at all times during the continuation of these Conditions:
12.2.1 send only messages that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offence in view of the generally prevailing standards of decency and propriety from time to time;
12.2.2 comply with all reasonable directions and instructions issued by the Company from time to time in relation to the Service;
12.2.3 comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
12.2.4 not to act in any manner likely to bring the Company, the Service or any Network Operator into disrepute.
12.3 You will upon request provide the Company, any Network Operator or any Regulator with any information relating to Your use of the Service that the requesting party reasonably requires. You are responsible for ensuring that any information provided to the Company relating to Your end-users including but not limited to Your End-User Data, is accurate and complete.
12.4 The Company accepts no liability for and You will be solely responsible for all advertising and promotion of the Service to Your end-users (including compliance with any applicable Codes) and ensuring that any services that you provide to Your end-users are suitable for their intended purposes. Before advertising any Short Code(s) in the mass media, You must provide the Network Operators with at least 14 days’ prior notice. You will at all times ensure that all advertising or promotional material regarding the Service complies with all applicable Codes and includes information that will enable its end-users to ascertain the charges to them before sending or receiving any message using the Service and that, in any advertising or promotional activity You undertake in relation to the Service You will not state or imply any approval by the Company of any particular message or refer to the Company in any way without its prior written approval.
12.5 Where requested by the Company You will promptly provide the Company with a representative Forecast of Your Service needs for the requested period, including all reasonable details required for the Company to plan capacity requirements and to maintain the levels of Service availability provided for in these Conditions.
12.6 You will at all times during continuation of these Conditions ensure that, prior to using the Service, each of Your end-users has:
12.6.1 been made aware of Your identity and contact address and the identity and contact address of any relevant sub-contractor or contractors;
12.6.2 received an adequate description of the services to be provided to them by You, including (but not limited to) the cost of such services, the means by which they will pay for such services, the frequency and number of messages that will be sent, their rights to cancel and Your contact number for help and enquiries; and
12.6.3 been given the right to opt out of receiving messages sent for commercial purposes (and You shall promptly process any end-user’s request not to do so).
12.7 The Company may, at its sole discretion cease to convey and You will promptly cease to transmit at the Company’s request any message which the Company reasonably considers to be in breach of these conditions.
12.8 You will not convey messages to any end-user the frequency and number of which is excessive in the Company’s reasonable opinion.
12.9 You will not acquire any title or other proprietary right to any intellectual property, including (but not limited to) any patents, know-how, registered or unregistered trademarks, design rights or copyright, relating to the Platform or the Service, nor will You cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. You will notify the Company of any suspected infringement of the Company’s intellectual property of which you may become aware and will take all reasonable action as the Company may direct in relation to that suspected infringement.
12.10 You warrant that:
12.10.1 You are the sole owner or licensor of all rights in Your End-User Data or You have obtained all necessary rights, licences and consents from all relevant third parties to enable You, the Company and the Company’s sub-contractors to use the End-User Data for the purposes of these Conditions; and
12.10.2 nothing contained in any message conveyed by You or on Your behalf will infringe the intellectual property rights or any other proprietary rights of any third party or be defamatory, offensive, abusive, obscene, menacing or otherwise unlawful nor will this accessing, holding, conveyance, transmission or supply of any such message amount to a criminal offence or otherwise be unlawful;
12.10.3 without prejudice to any other rights or remedies available to the Company under these Conditions or at law, You shall fully indemnify the Company for all liabilities, losses, damages, costs and expenses suffered or incurred by the Company as a result of any breach by You or any of Your officers, employees or sub-contractors of any term or terms of these Conditions.

13 THE COMPANY’S LIABILITY
13.1 All warranties, conditions, representations or other terms express or implied by statute, common law or otherwise are excluded to the fullest extent permitted in law.
13.2 Nothing in the Agreement will in any way exclude or limit either party’s liability to the other for death or personal injury caused by the negligence of that party or its employees.
13.3 The Company will not in any way be liable to You for any liabilities, losses, damages, costs and/or expenses incurred or suffered by you as a result of Your use of the Service except to the extent that such liabilities, losses, damages, costs and/or expenses result directly from the Company’s negligence or wilful misconduct.
13.4 The Company will not be in any way liable to or for the content of any messages sent or transmitted using the Service, nor will the Company be liable for any failure to make the Service available to You or to maintain the availability of the Service to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is outside the Company’s reasonable control.
13.5 Subject to any express provision to the contrary in the Conditions the Company’s aggregate liability in contract, tort, negligence or otherwise arising under or in connection with these Conditions shall be limited to the amount received by the Company under its professional indemnity insurance in respect of the liability in question.
13.5 Subject to any express provision to the contrary in these Conditions neither party will in any circumstances be liable in contract, tort, negligence or otherwise for any economic loss (including but not limited to any loss of profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses whether or not they were foreseen or foreseeable or any other special indirect or consequential loss or damage.
13.6 Each party acknowledges that in entering into these Conditions it did not do so on the basis of or in reliance upon any representation, warranty or other term except as expressly provided in these Conditions and as such all conditions, warranties or other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.

14 TERM AND TERMINATION
14.1 Except as other set out in this Agreement this Agreement shall continue until terminated by either party giving 90 days notice in writing to the other party.
14.2 Either party may also terminate this Agreement with immediate effect by notice in writing to the other party if:
14.2.1 the other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading;
14.2.2 the other party commits a material breach of the Agreement and (where such breach is capable of remedy fails to remedy the breach within 14 days of a written notice from the other party requiring its remedy; or any licence required by the Company to operate the Service is revoked, terminated or modified or in the case of new licence requirements being imposed the applicable licence is not granted to the Company or is granted to the Company in such way as to prevent it from continuing to make the Service available or a Network Operator from enabling the Company to make the Service available.
14.3 The Company may terminate these Conditions immediately on giving you 14 days’ written notice in the event that any relevant legislation or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for the Company to make the Service available.
14.4 Termination of the Agreement for any reason does not affect any rights that have accrued to either party under these Conditions up to the date of its termination and those terms and conditions of these Conditions that are by their nature capable of surviving termination which shall continue in full force and effect following such termination.
14.5 On termination of the Agreement:
14.5.1 You will immediately cease to use the Service and as soon as is reasonably possible procure that Your end-users cease to use the Service;
14.5.2 all monies then owing by either party to the other under or in connection with these Conditions will become immediately due and payable; and
14.5.3 you will have no further entitlement to receive Outpayments (other than Outpayments that have accrued prior to the date of termination).

15 FORCE MAJEURE
15.1 Neither party will be liable for any delay in the performance of or failure to perform any of its obligations under these Conditions that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and/or computer services, power supply failures or shortages, acts or omissions of third parties (including but not limited to Network Operators), acts of Government or Regulators or the non-operation of the Platform due to congestion.

16 ASSIGNMENT
16.1 You shall not assign, transfer or sub-contract either in whole or in part any of Your rights or obligations under these Conditions without the Company’s prior written consent, which consent shall not be unreasonably withheld or delayed).

17 GENERAL
17.1 Any notices to be given under these Conditions will be given in writing to the addressee at its address, its fax number or its e-mail address as set out in these Conditions and will be deemed to have been received within 48 hours of posting first class or within 24 hours of sending if sent by facsimile transmission or e-mail to the correct fax number or e-mail address of the addressee.
17.2 Nothing in the Agreement will be deemed to constitute a partnership or joint venture between the parties or constitute any power to the agent of the other party.
17.3 The failure by either party to enforce any of the terms or conditions of these Conditions at any time will not be a waiver of those terms or conditions or the right to subsequently enforce those or any other terms or conditions of the Conditions at any time.
17.4 In the event that any of the terms or conditions of these Conditions is held to be invalid or unenforceable this will not affect the validity or enforceability of all remaining terms and conditions.
17.5 These Conditions supersede any previous agreement between the parties in relation to the matters dealt with herein and represents (together with any documents referred to herein) the entire agreement between the parties in relation thereto and no variation hereof shall be effective unless made in writing provided that nothing in these Conditions will in any way exclude or limit either party’s liability for any fraudulent misrepresentation or concealment.
17.6 A party that is not a party to these Conditions has no right to enforce or rely on any term or condition under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
17.7 These Conditions are governed by and shall be construed in accordance with the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English courts.