Terms and conditions
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 My SoS Family Ltd. “The SoS Network”, “OneTouch Alert” and “Ripple” are trading names of My SoS Family Ltd. In this Agreement My SoS Family Ltd. may be referred to as “we”, “our”, “us” or “MSF”. By signing the T&C Contract or 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. If you are agreeing to the Agreement on behalf of an entity, you represent that you have the authority to agree to the Agreement on behalf of such entity. In the Agreement, the entity you represent may 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 T&C Contract) upon the applicable Service Start Date and without prejudice to any of MSF’s accrued rights and your accrued 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.
We reserve the right (but are not obliged) to provide certain Services (including but not limited to our pre-paid Services) to you under the Agreement without a T&C Contract. Capitalized terms in the Agreement shall have the meanings given to them in Section 19 of these Terms of Service.
(a) License. Subject to the Agreement, you will have a limited, non-exclusive, non-transferable, non-sub licensable right to use the applicable Services in accordance with the Agreement, and to permit your Affiliates, employees, contractors and agents to use the same. Such right shall be immediately revoked without notice upon the earlier of termination of: (i) the Agreement; (ii) the applicable T&C Contract; or (iii) the applicable Service.
(b) License Restrictions. You will not (and will not allow your Affiliates, employees, contractors, agents, or any third party) to: (i) reverse engineer, decompile, or disassemble the Services and layout; (ii) market, sell (subject to Section 1(c)), sublicense, rent, lease, or otherwise distribute the Services, in whole or in part; (iii) modify, upgrade, improve, enhance or create derivative works of any portion of the Services for any purpose (including without limitation error correction or any other type of maintenance); or (iv) remove, obscure, or alter any identification, proprietary, copyright or other notices in the Services.
(c) Resale. You may resell the Services to your customers, provided that: (i) You have a signed T&C Resale Contract with MSF (ii) your customers may not further resell Services, (iii) your customer’s use of the Services and any of their acts and omissions are deemed to be your use of the Services and your acts and omissions, (iv) each of your customers is legally bound by an agreement with you, which is at least as protective of MSF, its rights and the Services as this Agreement, (v) none of your customers shall be a third party beneficiary to the Agreement, (vi) as between us and you, Data shall be deemed to belong to you and no other party, and (vii) you use no MSF trademarks or branding and make no representations with respect to the Services that are inconsistent with any MSF representations.
(d) Applications, Devices, Numbers and Codes. You acknowledge and agree that you shall not have any intellectual property rights and/or other proprietary interests in any Devices, Applications, Numbers and Codes made available to you under the Agreement. You will not take any action that would cause you or any third party to acquire any intellectual property rights and/or other proprietary interest in any Devices, Applications, Numbers and Codes. We may withdraw or suspend such Devices, Applications, Numbers and Codes at any time to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority.
You agree that you will not, and will not encourage or permit any party 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 add Network numbers creating unsolicited messages or other communications; (d) in any manner that is infringing, obscene, threatening, libellous, 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, Security Industry, Telecare Industry, Lone Worker Industry, 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, its 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; or (i) to impersonate any person or entity or add a number you do not have the express authorisation of the bill payer or holder of the communications devices; (i) You will not add any emergency services (Like 999,111,101 or 911 types of numbers).
Additionally, you agree to promptly comply with all requests for documentation and information we make relating to your use of the Services.
(a) Your Account. You are solely responsible for your Account, all activities conducted in connection with your Account, and the accuracy of all information provided by or to you relating thereto, including without limitation, contact, technical and payment information, the Credentials, and for protecting and safeguarding the foregoing. You will promptly update any Account information if it changes and notify us of any unauthorized use of your Account and/or Credentials, and any related security breach. You will only connect to the Services through your Account and using only the Credentials.
(b) Content and Monitoring. You are solely responsible for all Content, and the storage and transmission of the Content must comply with the Agreement. We may (but have no obligation to) monitor your use of the Services at any time, with or without notice.
(d) Affiliates and Third Parties. You shall remain fully liable to us for any use of the Services by your Affiliates, customers, employees, contractors, agents or any third parties (whose acts and omissions shall be considered to be your acts and omissions). We will provide support, when and if provided, only to you, not to your Affiliates, customers, employees, contractors, agents or any third parties.
(e) Records. You will maintain accurate and complete records of your performance under the Agreement during the term and as required under the Compliance Rules and Relevant Laws. Upon reasonable written notice, you shall provide copies of any such records to MSF. MSF or its representatives shall be entitled to submit any such records to any Service Provider, Regulator or other competent authority.
Payments and Pricing
(a) Credit Customers. Where you have signed a T&C Contract for a Service, you shall be a Credit Customer. You will pay us the Fees and Taxes and all other invoiced amounts within seven (7) days of invoice date (or such alternative period specified in the applicable T&C Contract or determined by us). Unless stated otherwise in a T&C Contract, the Fees shall be calculated in accordance with rates and pricing which we make available to you (by means determined by us) from time to time. Unless stated otherwise in a T&C Contract, all Non-Recurring Fees may be invoiced monthly in arrears, and all Recurring Fees and One-Time Fees may be billed in advance. All Fees, Taxes and other sums shall be billed in the applicable currency stated in the T&C Contract. All sums will be paid by the method determined by us in our sole discretion. Time is of the essence in relation to your payment obligations.
(b) Pre-pay Customers. Unless you have signed a T&C Contract for a Service, you will be a pre-pay Customer. You will pay us the Fees and Taxes and all other amounts payable to us through prepayments made by you on your Account. The Fees shall be calculated in accordance with the rates and pricing which we make available to you (by means determined by us) from time to time. You will not earn interest on any Credit Balance held by us. You shall not be entitled to a refund of an unused Credit Balance under any circumstances. We may deduct or offset from your Credit Balance, any sums you owe to us, which may include but are not limited to Fees and Taxes. All Recurring Fees and One-Time Fees may be deducted in advance of the applicable Service being provided and all Non-Recurring Fees may be deducted after the applicable Service is provided. Payments received from you will be deposited in the currency selected during Account creation. We support USD, GBP, EUR, AUD CAD as standard and may be able to support other currencies on a case by case basis. All Fees, Taxes and other sums due will be deducted from this Credit Balance in the same currency (subject to Section 4(e) below). Every Service on an Account will deduct Fees, Taxes and other sums due from the same Credit Balance. You will lose the right to any Credit Balance and such Credit Balance shall be permanently assigned to us without further notice (and without prejudice to our other rights and remedies), where; (i) we suspend the Services more than once due to your breach of the Agreement; or (ii) such Unused Credit Balance remaining at the end of the time period you have selected for example, 14 days, 13 weeks (3 months), 26 weeks (6 months) or 52 weeks (12 months).
(c) Set-Off. You will not have a right of any type of deduction or setoff unless required by Relevant Laws. If any such set-off is required by Relevant Laws, you shall, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required.
(d) No Waiver. No omission or delay by us in invoicing any sums and/or deducting them from a Credit Balance shall prohibit us from raising an invoice and/or deducting them from a Credit Balance at a later date nor shall it relieve you of your liability to pay.
(e) Currency. If the pricing for the Services in a T&C Contract (or otherwise) is expressed in a currency other than GBP, then we reserve the right, with respect to the applicable Services and at the time when a payment obligation arises, to convert those sums expressed in non-GBP into GBP at our then-current conversion rate. Currency exchange fluctuations may result in changes to the final amount charged. We are not responsible for any currency exchange rate fluctuations or charges.
(f) Credit Limit. Your Credit Limit shall be as notified by us to you from time to time. If we determine that the Accrued Liability exceeds the Credit Limit, you shall pay, within twenty-four (24) hours of notice from us, such amount as we determine is necessary to (i) reduce the Accrued Liability to the same or less than the Credit Limit and, (ii) ensure the Credit Limit shall not be exceeded prior to the next invoice due date.
(g) Fee Changes. Unless expressly stated otherwise in the T&C Contract, we reserve the right to change the pricing used to calculate the Fees at any time (with or without notice).
(i) General. Fees and Taxes are non-refundable. Fees exclude, and you will pay, all Taxes, but neither party will pay income taxes of the other party. For any invoice you fail to pay by its due date, we may charge you a late penalty on the amount overdue each day it is overdue until it is paid, equal to the lesser of: (i) the maximum legally permissible interest rate, or (ii) an interest rate of five percent (5%) above LIBOR. The Fees payable shall be calculated by reference to data recorded or logged by us and not by reference to any data recorded or logged by you. Any invoices issued by us shall, save in the case of manifest error, be final, conclusive and binding on you. You may dispute an invoice in good faith, but must do so within seven (7) days of the invoice date, otherwise you will be deemed to have irrevocably waived all rights and claims concerning such invoice. MSF may setoff amounts owed by you under the Agreement or any other agreement you have with MSF or any of its Affiliates.
Term and Termination, Suspension, Survival
(a) Term and Termination. The Agreement takes effect as of the earlier of: (i) your use of any Services, (ii) both parties executing the T&C Contract, or (iii) your electronic acceptance of the Terms of Service, and will continue until terminated in accordance with the terms of the Agreement. Each T&C Contract will come into effect on the T&C Contract Effective Date. Unless terminated in accordance with the Agreement, each Service shall automatically renew for a Renewal Term upon expiry of its Initial Term or then current Renewal Term. Subject to Section 5(c), either party may terminate any T&C Contract and/or Service with no less than ninety (90) days’ notice to the other. We may also terminate a T&C Contract or Service for convenience on shorter notice where for operational reasons we can no longer make the applicable Service(s) available to you (including but not limited to where the Service has been withdrawn by a Service Provider). Termination of a T&C Contract shall trigger termination of all Services under it on the same date. Either party may terminate the Agreement for convenience, upon notice, if no T&C Contracts are in effect. We may terminate the Agreement (in whole or in part) for cause, immediately upon notice to you, should (i) you file for bankruptcy or otherwise become insolvent, (ii) a liquidator, administrator or receiver be appointed in respect of the whole or part of your assets or undertaking, (iii) you enter into (or propose to enter into) an arrangement with your creditors, (iv) anything analogous to Section 5(a) (ii) or (iii) occur in any jurisdiction, (v) a suspension of the Services under Section 5(b) continue for more than five (5) consecutive days or (vi) you breach the Agreement and fail to cure such breach within five (5) days of your receipt of notice of the same.
(b) Suspension. We may suspend all or any part of the Services: (i) in our sole discretion, if not doing so would have a detrimental effect on the Services or our provision thereof, (ii) if the Accrued Liability exceeds the Credit limit, (iii) to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority, (iv) where you fail to pay any Fees, Taxes or ETC in accordance with the Agreement; or (v) if we otherwise find it necessary to do so in order to maintain or to protect our interests (including without limitation, for any breach or potential breach of the Agreement). In addition to our right to terminate or suspend the Services, you acknowledge that we reserve the right to temporarily disable access to the Services (or any portion thereof) for maintenance purposes. Suspension under this section does not waive the obligation of any payment obligations under this Agreement.
(c) Early Termination Charge (ETC). Where a Service terminates on a date other than the date of expiration of an Initial Term or a Renewal Term, we reserve the right to charge an ETC, which you shall be liable to pay within seven (7) days of an invoice from us. This Section shall not apply where we have terminated for convenience or you have terminated for cause.
(d) Survival. The following provisions will survive the termination of the Agreement and the termination or expiration of each T&C Contract or Service (together with any other provisions of the Agreement which expressly or impliedly survive termination): Sections 3(e), 4, 5, 6, 8, 9, 10, 11, 12, 13, 16, 17, 18 and 19. The termination of the Agreement and the termination or expiration of any T&C Contract or Service shall be without prejudice to our accrued rights and your accrued liabilities.
You retain all rights and ownership in 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.
IF we have provided you with a SIM card (if you have opted for these services) the SIM always remains our, or a Network Operator's property, which must be used in conjunction with MSF services you receive; you must not (nor allow others to) remove the SIM or use it in another Device not provided by MSF.
Except as expressly stated in a T&C Contract, 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 http://www.mysosfamily.com/legal/ (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 T&C Contract; 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).
Relevant Laws and Compliance Rules
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.
(a) Warranties. Each party represents it has the necessary authority to enter into and perform the Agreement, and that such performance does not violate or breach any other agreement to which it is a party. Additionally, you represent and warrant that you will fully comply with the Agreement, and that the Content and your use of the Services do not and will not cause any breach of the Agreement.
(b) DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES AND DATA, AND WE DO NOT WARRANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, TIMELY, OR ERROR-FREE OR THAT CONTENT WILL BE DELIVERED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM AND THE AGREEMENT EXCLUDES ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN NETWORK CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, DATA, CONFIDENTIAL INFORMATION AND PROPERTY. YOU FURTHER ACKNOWLEDGE THAT MSF DOES NOT CONTROL NETWORKS OF THIRD PARTIES (INCLUDING WITHOUT LIMITATION SERVICE PROVIDERS AND THEIR NETWORKS) AND MSF IS NOT RESPONSIBLE FOR THE IMPACT ON THE SERVICES BY THE ACTION OR INACTION OF SUCH NETWORKS OR THIRD PARTIES.
(a) Indemnification by Us. We will indemnify, hold harmless and defend you from and against any and all Losses arising out of or relating to any Claim from a third party (other than one of your Affiliates) arising from or relating to any proven infringement of the intellectual property rights of such third party by your use of the Services in accordance with the Agreement. If we receive information about an alleged or potential infringement or misappropriation claim related to a particular Service, we may in our sole discretion: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for your continued use of that Service in accordance with the Agreement, or (iii) terminate your subscription to that Service upon written notice and refund you any prepaid Fees or Taxes less administration costs accrued on a time-basis relating to such part of the Services which have not been provided by the effective date of termination. The above defence and indemnification obligations do not apply to Claims relating to Data or breach of the Agreement.
(b) Indemnification by You. You will indemnify, keep indemnified, hold harmless and defend us from and against any and all Losses arising out of or relating to any and all (a) Claims arising from or relating to Data; and (b) Claims arising from or relating to all use of the Services (whether by you or your Affiliates, customers, agents, contractors or employees); and (c) breaches of Sections 1, 2 and/or 3 of these Terms of Service.
(c) Procedure. The indemnifying party’s obligations under this Section 10 are conditioned upon the indemnified party providing prompt written notice of a Claim. The indemnifying party will control the defence of the Claim, including any settlement, but will not settle any Claim without the indemnified party’s prior written consent, not to be unreasonably delayed, unless such settlement releases the indemnified party from all liability relating to the Claim. The indemnified party will provide reasonable cooperation in connection with the defence of a Claim, and may participate in the defence at its own expense. This Section 10 sets forth each party’s sole and exclusive remedy with respect to any and all Claims.
LIMITATION OF LIABILITY
EXCEPT AS SET FORTH IN THIS SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER (OR IN CONNECTION WITH) THE AGREEMENT (WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STATUTORY DUTY OR OTHERWISE) AND REGARDLESS OF THE NATURE OF THE CLAIM, ACTION OR DEMAND, FOR (I) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OF ANY KIND, (II) LOSS OF PROFITS, DATA (INCLUDING BUT NOT LIMITED TO CORRUPTION OF DATA), BUSINESS OPPORTUNITIES, CONTRACTS, REVENUE, GOODWILL, ANTICIPATED SAVINGS, OR FINANCIAL LOSS OF ANY KIND (WHETHER ANY OF THE TYPES OF LOSS REFERRED TO IN THIS SECTION 11 ARE DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES) AND (III) ANY AMOUNTS EXCEEDING FIVE HUNDRED GBP (£500) IN THE AGGREGATE WHERE YOUR AGREEMENT IS WITH MSF LTD. THE ABOVE LIMITATIONS AND EXCLUSIONS WILL NOT APPLY TO: (i) ANY INDEMNITY GIVEN BY A PARTY UNDER THE AGREEMENT; OR (ii) YOUR PAYMENT OBLIGATIONS. FURTHER, THE PARTIES AGREE THAT NOTHING IN THIS AGREEMENT IS INTENDED TO OR HAS THE EFFECT OF LIMITING OR EXCLUDING LIABILITY IN ANY WAY OR TO AN EXTENT THAT IS PROHIBITED BY RELEVANT LAW.
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.
Beta Releases & Value Added Services
We may, from time to time, make available in our sole discretion pre-release versions of the Services or components thereof (each a “Beta Release”). Beta Releases may be changed, terminated or suspended without notice and are offered solely on an “as-is“ basis. Additionally, certain features of the Services (including but not limited to certain types of Service interface) may be made available to you through without the charging of additional Fees. We reserve the right to charge for such features of the Services at any future date and will notify you in advance of the applicable rates upon which the Fees for such features will be calculated.
Test Accounts & Free Trails
We may make an Account available to you for the purposes of testing or trailing of certain Services (with or without a test Account T&C Contract, at our discretion). Or provide you with the services for a limited period free of charges.
The terms of the Agreement shall govern your use and access to such Test Account, Free Account, Free Services, Free Trails or Test Services. You shall ensure that the test/free Account and test/free 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/free Account and test/free 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/free Account and test/free Services at any time (with or without notice to you).
Governing Law and Venue
If you are party to the Agreement with My SoS Family Ltd the law of England governs the Agreement (and any non-contractual matters arising out of it), and the parties agree to the exclusive jurisdiction of the courts in London, England (including without limit, in relation to non-contractual matters). We may however bring enforcement proceedings in any jurisdiction.
MSF 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 any postal address provided, which shall be deemed effective on the date of dispatch. For an Agreement with MSF Ltd., you may give notice to us at the following address: My SOS Family LTD, Legal Department, Enterprise House, 14 Market Street, Birkenhead, Wirral, CH41 5ER. Such postal notice will be deemed effective when received by us by letter delivered by nationally recognised 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/union 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 may not assign any of your rights in the Agreement, and any such attempt is void, but MSF may assign its rights to any of its Affiliates, or to any successor in interest of any business associated with the Services. You may not delegate or sub-contract any of your obligations under the Agreement. MSF may delegate any of its obligations under the Agreement as it sees fit. 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. There are no third party beneficiaries to the Agreement and any Relevant Law, which may grants 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 customer-issued purchase order or order form 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.
- “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.
- “Claim”claim, action, demand, allegation or proceeding brought or made by a third party.
- “Compliance Rules” rules and restrictions (as updated by us from time to time) pertaining to the use of the Services including without limitation: the Messaging Compliance Rules at http://mysosfamily.com/ MessagingComplianceRuleMSFpublished (or any successor URL we stipulate) or as otherwise provided to you by us 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.
- “T&C Contract”any T&C Contract to which these Terms of Service are attached or incorporated by reference.
- “Resale Contract” any Resale Contract to which these Terms of Service are attached or incorporated by reference.
- “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 Product Specification(s).
- “ETC”the early termination charge, which unless specified otherwise in a T&C Contract, 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 Start Date), which you are committed to purchase that Service. Unless detailed otherwise in a T&C Contract, the Initial Term of each Service shall be lower of the period/term selected by you for pre-paid accounts or a minimum of 12 months for Credit Accounts.
- “Losses”all losses, damages, liabilities, costs, expenses, Fines and penalties (including without limitation reasonable legal fees and costs).
- “MSF Ltd” MSF Limited, a company incorporated in England and Wales, with company registration number 08918454.
- “Non-Recurring Fees”includes but is not limited to usage based fees and Service Provider pass through fees.
- “Applications, Devices, Numbers and Codes”Applications, Devices, numbers and/or codes which we make available for you to use as part of the Services, including (but not limited to), IOS Applications, Android Applications, Quick-Dial Numbers, Check-in Numbers, short codes, long numbers, senderID’s and @XXX Unique identifiers,
- “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 us prior to the effectiveness of the Agreement, which governs your use of the Services or any part of them.
- “Product Specification”the document or documents setting forth our description of the Services, as provided (or otherwise made available) to you by us, which may also be referred to as a “Service Specification”.
- “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, to which a party is subject.
- "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 either the same length of time as the Initial Term for that Service, or a newly selected term based on the pre-paid period selected with the first Renewal Term commencing upon expiry of the Initial Term and subsequent Renewal Terms commencing on expiry of each Renewal Term.
- “T&C Contract”the means through which you purchase Services, which means are determined by us, governed by the Agreement and which shall come into force when accepted by us.
- “T&C Contract Effective Date”the date detailed in a T&C Contract, being the date which it takes legal effect.
- “Service Provider”any entity (including without limitation, a network, a mobile messaging aggregator or payment processor, 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, Documentation and any services made available to you or as set forth on a T&C Contract.
- “Service Start Date”in respect of any Services, the date upon which such Services are first made available for your use, as determined by us.
- “Supplemental Terms”the Documentation, Compliance Rules, 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.