The provisions included in these terms and conditions and associated documents, apply to the Faretext Services and the Oello Services.
1. Introduction and Interpretation
1.1 Unless other terms and conditions are expressly agreed in writing by Faretext by means of a specific written amendment signed by a Director (or authorised representative nominated by a Director) of Faretext, the supply of Services will be subject to the terms of the Agreement to the exclusion of any other terms and conditions whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent by the Customer to Faretext.
1.2 By submitting an Order, the Customer acknowledges that they have read and understood these documents and the obligations contained therein.
1.3 The headings in the Agreement are for ease of reference only and shall not affect its construction.
1.4 References in the Agreement to any statute or statutory instrument shall include any re-enactment, modifications or amendments thereto for the time being in force.
1.5 Except where expressly stated, references to clauses, sub-clauses, paragraphs and schedules refer, unless otherwise stated, to clauses and sub-clauses of, and schedules to, the Terms and Conditions.
1.6 References to “in writing” shall include fax and electronic mail.
1.7 Any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 Unless the context otherwise requires, singular shall include the plural and vice versa.
Except as otherwise expressly stated, the definitions detailed within this clause 2 (Definitions) shall be deemed to apply to the Terms and Conditions:
Anti-Spam Policy means Anti-Spam Policy located on the Website;
Billing Date means the date after which Faretext may raise an invoice to the Customer in respect of the Services, the Billing Date shall be as follows:
Pay As You Go (Oello Services) the date of Payment Notification;
Pay As You Go (Faretext Services) 30 days from the Order;
Subscription Services (Oello Services) the date of Payment Notification (or amended Order date) and each Payment Notification thereafter;
Monthly Commitment Charges the date of Payment Notification and each Payment Notification thereafter;
Charges means the charges for the Services provided by Faretext, as included within an applicable Order or posted on the Faretext Website or agreed between parties in writing;
Customer means the person, firm or company who purchases Services provided by Faretext;
Data means the personal data provided to Faretext and updated from time to time by the Customer (which may include sensitive personal data);
Due Date means 14 days from the date of the invoice, except as otherwise stated within the Agreement;
Faretext means Faretext Limited registered at 9 Main Road, Bilton, Hull, East Yorkshire, HU11 4AP. Faretext Services means the Services where they are made available by Faretext via software integration;
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or rights to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Material includes, in addition to a document in writing, the Data, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form.
Monthly Commitment Charges shall have the meaning as described within clause 7.5 (Monthly Commitment Charges (Faretext Services));
Minimum Period shall mean the minimum period for each Order, as further described in clause 3 (Term);
Oello means the trading name of Faretext that will be used to provide the Oello Services;
Oello Services means the Services, where they are made available by Faretext trading as Oello via a web-based application;
Order means each order for Service either Faretext Services or Oello Services;
Order Commencement Date means either the date as specified within an applicable Order or the date on which the Services are made available;
Pay As You Go Charges shall have the meaning described within clause 7.3 (Pay As You Go Charges);
Payment Notification has the meaning as described in clause 7.3 below;
Service(s) means either the Faretext Services or the Oello Services;
SMS means Short Messaging Service;
Subscription means an order for monthly purchase of SMS;
Subscription Period means the monthly duration applying to the number of SMSs purchased by way of a Subscription;
Subscription Charges shall have the meaning as described within clause 7.4 (Subscription Charges (Oello Services));
Termination Charges means the remainder of the Monthly Commitment Charges that would have otherwise been payable for the remainder of the Minimum Period which will be applied in respect of a Customer cancelling the Services during the Minimum Period or where Faretext terminates for the Customers breach;
Terms and Conditions means these terms and conditions;
Website means Faretext’s web site from which the Services can be accessed and found at the following urls www.faretext.co.uk and www.oello.co.uk or associated sub-domains thereof and any additional domains registered to Faretext that enables the Services to be used.
Working Day means Monday to Friday 9.00 am to 5.30 pm excluding bank holidays in England and Wales.
3.1 The Agreement will be deemed to come into effect from the first Order Commencement Date and shall continue to apply until the expiry or termination of the last applicable Order.
3.2 Each Order shall state a Minimum Period as follows:
a) Sixty (60) months; or
b) Forty-eight (48) months; or
c) Thirty-six (36) months; or
d) Twenty-four (24) months; or
e) Twelve (12) months; or
f) Monthly pay as you go
In the case of any conflict in relation to the provisions of the Agreement, the following order of precedence shall apply in descending order:
a) Terms and Conditions;
c) Anti-Spam Policy;
5. Accepting the Agreement
5.1 In order to use the Services, the Customer must firstly accept the terms of the Agreement. The Customer may not use the Services if they do not accept the Agreement.
5.2 The Services supplied under this Agreement shall be provided by Faretext to the Customer from the date the Customer signs up to the Services online or equally the date included within an applicable Order.
5.3 The Customer may request that the Services be varied but any such variation shall be subject to Faretext’s prior written consent and the written agreement of both parties.
5.4 The Customer may not use the Services and may not accept the Agreement if the Customer is (a) not duly authorised to do so, or (b) a person or entity barred from receiving the Services under the laws of England and Wales or other countries including the country in which they are resident or from which they use the Services.
6. Provision of Services
6.1 Faretext provides an online mobile messaging service, either the Faretext Service or the Oello Service.
6.2 The Service provides the Customer with the following capability:
a) the sending of notification and direct marketing SMS communication; and
b) distribution of surveys, discount codes and reward vouchers; and
c) set-up auto-reply SMS replies and offer scheduling and repeat functions.
6.3 The Customer acknowledges and agrees that while Faretext does not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service; such fixed upper limits may be set by Faretext at any time, at Faretext’s discretion.
6.4 Faretext may at any time without notifying the Customer make any changes to the Services which are necessary to comply with any relevant statutory, regulatory or similar requirements.
6.5 As part of providing the Service, Faretext may need to send announcements and messages regarding the Customers use of the Services. Faretext will use the contact details the Customer has provided in the Order or that have been used by the Customer on the Website. It is the Customers responsibility to notify Faretext if these contact details have been amended, such notification shall not be deemed valid until it has been acknowledged in writing by Faretext.
6.6 It is the Customers responsibility for the back-up of any information including content and contact details that they use as part of the Service.
6.7 The Customer shall not upload, or attempt to upload any mobile numbers (the “Customer Contacts”) that they do not have permission to use.
6.8 It is the Customers responsibility to obtain the express written permission from Customer Contacts to add them to the group SMS list. If Faretext receive any complaints about usage of this feature, then Faretext will notify the Customer and may suspend or shut down the Customer account.
6.9 If Faretext receives 2 or more separate complaints during any twelve (12) month period, then this will be regarded as material breach.
6.10 If the Customer has not obtained express written permission to add the Customer Contacts to their group SMS list, then they must not be added.
6.11 A Customer Contact who has previously unsubscribed from the Customer will not be able to be re-added via the Customer, they will need to re-subscribe on their own accord.
6.12 Where Faretext has provided “reply numbers” these have been issued by an applicable network operator or carrier. The Customer acknowledges and agree that ownership in such numbers does not transfer to the Customer and that the network operator or carrier or OFCOM may withdraw such numbers or number ranges at any time. Where numbers are withdrawn in accordance with the provisions of this clause (6.12 then the Customer shall have no right to continue to use such numbers. Additionally, the Customer expressly agrees that Faretext shall have no liability in connection with the withdrawal of such numbers, howsoever arising
6.13 The Customer shall fully and effectively indemnify Faretext in respect of any breach of the provisions or application of clauses of 6.6, 6.7, 6.8, 6.9, 6.10, 6.11.
7.1 The Charges for the Services are included within the Order or posted on the Website. Except as expressly agreed within an Order or as stated below, all Charges will be due and payable by the Due Date and will be invoiced on or after the Billing Date.
7.2 Charges will either be:
Pay As You Go Charges
Subscription Charges, or
Monthly Commitment Charges.
7.3 Pay As You Go Charges (Oello Services and Faretext Services)
7.3.1 Pay As You Go Charges will be payable either at point of Order (Oello Services) or on receipt of invoice (Faretext Services).
7.3.2 An invoice for Oello Services will be made available to the Customer following receipt of notification to Faretext from the Third Party Payment Processor that payment has been properly made (“Payment Notification”).
7.3.3 Oello Services will not be made available until Payment Notification, which shall also be the Billing Date for such Services.
7.3.4 An invoice for Faretext Services will be made available on the Billing Date.
7.3.5 Where a Customer has selected “low credit alert” or “auto top-up” within the billing preferences on the Website, this will be automatically processed in accordance with their selected preference. Such preferences can be amended via the Website. This is only available on the Website in respect of the Oello Services.
7.4 Subscription Charges (Oello Services)
7.4.1 Where the Customer elects to place an Order for a Subscription, then the number of SMSs purchased will be automatically applied on each Billing Date for each Subscription Period, up and to the point that the Subscription is cancelled by the Customer.
7.4.2 For any month for which the Customer has already paid, and then chooses to increase their usage (and therefore, accepting a higher pricing Subscription), the Customer will be required to select a new Subscription to upgrade their account to the higher level. Following Payment Notification, a new full Subscription will commence, and the new Billing Date will be the same date, or the closest date in that month, to the date this new Subscription started. Where a new Subscription is purchased, the previous Subscription shall be cancelled.
7.4.3 Any cancellations or downgrades to the Subscription (and therefore accepting a lower pricing Subscription) will be processed in the following month (the next Billing Date). All Subscriptions (including, but not limited to, remaining messages and use of keywords) will remain available until the next Billing Date.
7.4.4 The number of messages purchased in a Subscription Period will remain on the Customer account is used or Faretext closes the account in accordance with the terms of the Agreement.
7.4.5 Payments are due for the full month for which any part of the month is included in the Subscription. Charges are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly Charge unless agreed in writing between you and Faretext.
7.5.1 Where the Customer elects to place an Order for a Minimum Period, this will also include a Monthly Commitment Charge, then the number of SMSs purchased will be automatically applied on each Billing Date for each Subscription Period, up and to the point of the end of the Minimum Period.
7.5.2 Unless expressly agreed between the parties in writing, unused SMSs purchased as part of a Monthly Commitment Charge cannot be rolled over into subsequent months. In any event, all unused messages are forfeited upon the end of the Minimum Period and/or the Monthly Commitment Charge no longer being applied and/or the Customer or Faretext terminates this Agreement in accordance with 16 (Termination and Suspension).
7.5.3 An Order for a Minimum Period that includes a Monthly Commitment Charge may also include an associated API charge. This would be present on the Order and applied on each Billing Date forming part of the Subscription Period and is subject to the same terms associated with any applicable Minimum Period.
7.6 Auto Top-up. If the Customer selects Auto Top-up in respect of the Oello Services, then the Customer must provide Faretext with a valid credit card or debit card from which the Auto Top-up payment for further credits can be taken. Any payment taken by Faretext via Auto Top-Up facility will be deemed to have been authorised by the Customer; If any Auto Top-up payment which has been properly requested by Faretext fails it is the Customers responsibility to correct such failed payment within 2 days of such failure.
7.7 Faretext may alter the level of Charges or the Charges payment terms from time to time on not less than 30 days’ written notice and shall notify the Customer of the changes to the Charges. If the Customer does not wish to accept the altered Charges, the Customer shall notify Faretext of this and shall terminate the Order on one (1) months’ notice in writing, providing that such notice is sent within 5 Working Days or receipt of the notification of the changes to the Charges.
7.8 The Customer will be Charged for every SMS Sent regardless of the final delivery status of the SMS and Faretext shall not be liable for any SMS not delivered, or not delivered in a reasonable period of time.
7.9 In the event that any additional charges are levied upon Faretext, by a network operator or carrier or third-party provider, as a result of the Customer use of the Services, these will be passed on to the Customer and the Customer shall indemnify Faretext in respect of such charges.
7.10 Where a Customer purchases SMSs in accordance with any of the models detailed within this clause 7 then the Customer acknowledges and agrees that these are non-refundable.
8. Use of Data
8.1 Faretext shall store Customer’s Data securely and the Customer should note that: Faretext does not buy, sell or rent any of the Customer’s Data nor will Faretext disclose any Data to any business, organisation or individual without the Customer’s prior express consent.
8.2 Faretext uses a third party to host the application servers and to provide communication services. Faretext will procure that such third party undertakes to provide its services at or above industry standards. Faretext uses a separate third party to provide SMS messaging services. Both third parties rely upon the services of other telecommunications operators. Accordingly, Faretext does not warrant that the Services will be uninterrupted or error free nor that the delivery of SMS text messages will be without delay. Faretext will use reasonable endeavours to ensure that any third parties involved in the supply of the Services take appropriate security measures to protect Data. Interruption to the Services due to matters out of our control and but not limited to issues caused by provided third party services does not warrant reason or justification to terminate the Minimum Period without the applicable Termination Charges being applied.
8.3 Faretext reserves the right to gather, process and publish anonymous statistics on aggregate delivery and other campaign statistics. These statistics are produced on an aggregate basis across all clients, for the purposes of quality control and allowing clients to compare their performance across their particular industry. The gathering of these statistics will not require processing of any personal Data.
8.5 Faretext may also record some aspects of the Customers pattern of use of the services, which may be anonymously aggregated together with that of other clients and analysed to make improvements to the quality and function of the Services.
8.6 Faretext will hold the Data securely and will not contact you for purposes other than running the services without your explicit permission.
9. Use of Services
9.1 For the benefit and security of our clients, and to comply with applicable laws the following guidelines dictate the basic use of the Services: If there is any reason to believe that these rules have been violated at any time, Faretext reserve the right to terminate the Customer’s account and levy the applicable Termination Charges. If any applicable laws have been breached Faretext reserve the right to report these incidents to appropriate authorities, providing supporting information if required.
9.2 Providing Accurate Information: The Customer agree to provide true, accurate and complete information, as requested in the Service registration form and account set-up forms and the Customer agrees to not misrepresent their identity or their account information. Accurate personal details including email, telephone numbers and routes enable Faretext to provide the correct Services. The Customer agrees to keep their registration and account information up to date and accurate. The Customer will validate their email and SMS number by responding to a message Faretext send to each address: this protects the Customer from any other user inadvertently (or maliciously) entering the Customer contact details and causing the system to send the Customer unwanted alerts.
9.3 Password Security: The Customer will be asked to choose a password when registering to use the Service. The Customer is responsible for maintaining the confidentiality of their password and account. The Customer is responsible for all activities that occur using their password or account. The Customer must notify Faretext immediately of any unauthorised use of their password or account or any other breach of security. Faretext will not be liable for any loss that may incur as a result of someone else using the Customer’s password or account, either with or without their knowledge. The Customer may not use anyone else’s password at any time.
9.4 Obey the Law: The Customer agrees to not use the Service for illegal purposes or for the transmission of Material that is misrepresentative, unlawful, harassing, libellous (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others, including but not limited to complying with the Anti-Spam Policy which can be located at the following urls: www.faretext.co.uk/anti-spam orwww.oello.co.uk/anti-spam
9.5 Restrictions on Commercial Use or Resale: The Customer’s right to use the Service is personal to the Customer; therefore, the Customer agrees to not resell the Services
10. Customer Warranties
10.1 The Customer warrants that they will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
10.2 The Customer warrants that they are solely responsible for (and that Faretext has no responsibility to the Customer or to any third party) any Customer breach of obligations under the Agreement and for the consequences (including any loss or damage which Faretext may suffer) of any such breach.
10.3 The Customer warrants that they shall obtain and maintain all necessary licences and consents and comply with all relevant legislation. The Customer shall comply, and ensure that all of the data and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, in force or effect from time to time.
10.5 The Customer acknowledges that Faretext will monitor and record each account’s usage of the Services, to include any campaigns sent or Data processed, for the purposes of ensuring legal compliance and anti-spam measures.
11. Data Protection and GDPR
Applicable Legislation includes but is not limited to Data Protection Act 2018 and the EU Data Protection Directive 2016/680 (Law Enforcement Directive).
Controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the Controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;
Data Subject refers to any individual person who can be identified, directly or indirectly, via an identifier such as a name, an ID number, location data, or via factors specific to the person’s physical, physiological, genetic, mental, economic, cultural or social identity.
Personal Data means any information relating to Data Subject
Processing means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
Processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
11.1 Both parties acknowledge and agree that in order for Faretext to provide the Services, Faretext may have access to Personal Data and that the Personal Data (subject to the provisions of this clause 11 Data Protection and GDPR) may be used, managed, accessed, transferred or held as is reasonably necessary to enable Faretext to provide the Services, provided that, at all times Faretext will comply with the Applicable Legislation.
11.2 Depending upon the nature of the Services provided, Faretext may act as either a Controller or Processor or both, in accordance with the Applicable Legislation.
11.3 In undertaking activities as a Controller, Faretext may collect, Process, use or share Personal Data with Faretext Affiliates and sub-Processors, within or outside the country of origin in order to do any or all of the following:
Manage Orders from receipt of request for implementation of an Order and in life service management.
Subject always to compliance with the Applicable Legislation and associated data security requirements and policies specifically but not limited to Article 40 (Codes of Conduct) of GDPR.
11.4 In undertaking the required activities, Faretext has a statutory duty to agree with the Customer:
the subject matter and duration of the Processing;
the nature and purpose of the Processing;
the type of personal data and categories of Data Subject; and
the obligations and rights of the Controller.
11.5 Where Faretext are acting as a Processor, Faretext will:
only act on the written instructions of the Controller;
ensure that people Processing the data are subject to a duty of confidence;
take appropriate measures to ensure the security of Processing;
only engage sub-Processors with the prior consent of the Controller and under a written contract;
assist the Controller in providing subject access and allowing Data Subjects to exercise their rights under the GDPR;
assist the Controller in meeting its GDPR obligations in relation to the security of processing, the notification of Personal Data breaches and data protection impact assessments;
delete or return all Personal Data to the Controller as requested at the end of the contract; and
submit to audits and inspections and provide the Controller with whatever reasonable information required ensure that we are both meeting their Article 28 obligations and tell the Controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
Faretext reserve the right acting reasonably, to levy additional Charges on the Customer where assistance in accordance with this clause (11.5), requires Faretext to utilise resource/professional services above that which is contained within the applicable Order. The Customer also acknowledge and agree that audits (except where determined by a regulatory authority) shall be within usual business hours and on reasonable notice.
11.6 Nothing within the Agreement shall be deemed to relieve Faretext acting as the Processor of our own responsibilities and liabilities under the Applicable Legislation.
12. Force Majeure
12.1 A Party is excused from performance and is not liable for any failure due to a cause beyond its reasonable control, including, but not limited to:
any accident, fire, or explosion, (other than in each case, one caused by a breach of contract by or assistance of that party (or its sub-contractor)), storm, flood, earthquake, subsidence, epidemic or other natural physical disaster or acts of God, inclement or severe weather;
industrial disputes, or any shortage of or difficulty in obtaining labour, fuel, raw materials or components failure or shortage of power supplies, lightning or fire;
any action taken by a governmental or public authority of any kind or other competent authority, including, without limitation, not granting a consent, exemption, approval or clearance or imposing an embargo, export or import restriction, rationing, quota or other restriction or prohibition;
any civil commotion or disorder, riot, invasion, terrorist attack, war, threat of or preparation for war, military operations;
acts or omissions of other telecommunications operators (including but not limited to a third party service provider or network operator), or events beyond the reasonable control of its suppliers;
12.2 The affected party will promptly notify the other of any circumstance covered by this clause.
12.3 In the event non-performance continues for a period of 3 months either party may terminate the affected Service provided any payments due under the terms of this Agreement have been made.
13. Content in the Services
13.1 The Customer understands and agrees that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which the Customer may have access to as part of, or through the use of the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”.
13.2 Faretext reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service. For some of the Services, Faretext may provide tools to filter out any discriminatory content or profanity.
13.3 The Customer understands and agrees that they are solely responsible for (and that Faretext has no responsibility to the Customer or to any third party) for any Content that they create, transmit or display while using the Services and for the consequences of their actions; including any loss or damage which Faretext may suffer by doing so and shall indemnify Faretext in the event of such loss.
14. Proprietary Rights
14.1 The Customer understands and agrees that Faretext own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
14.2 The Customer understands and agrees that the Services may contain information which is designated confidential by Faretext and that they shall not disclose such information without Faretext’s prior written consent.
14.3 Faretext acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any content that they submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
14.4 Unless the Customer has agreed otherwise in writing with Faretext, the Customer agrees that they are responsible for protecting and enforcing those rights and that Faretext has no obligation to do The Customer understands and agrees that they shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices), which may be affixed to or contained within the Services.
14.5 The Customer understands and agrees that in using the Services, they will not use any trademark, service mark, trade name, logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.
14.6 The Customer shall indemnify Faretext in respect of any breach of this clause (14) Proprietary Rights.
15. Licence from Faretext
15.1 Faretext grants to the Customer a personal, worldwide, royalty-free, non-assignable and non-exclusive licence to use the software provided to you by Faretext as part of the Services for the duration of each applicable Order (referred to as the “Software” below). This licence is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Faretext, in the manner permitted by the Agreement.
15.2 The Customer may not (and will not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law.
15.3 Unless Faretext has given specific written permission, the Customer may not assign (or grant a sub-licence of) their rights to use the Software, grant a security interest in or over their rights to use the Software, or otherwise transfer any part of their rights to use the Software.
15.4 The Customer shall indemnify Faretext in respect of any Customer breach of the provisions of this clause (15) Licence from Faretext.
16. Termination and Suspension
16.1 Without prejudice to any other rights that may be available at any time, each party shall have the right, by giving at any time written notice to the other party, to terminate this Agreement immediately if:
the other party at any time has a court order made or resolution passed for winding it up or a petition is presented for an administration order to be made in relation to it or is otherwise insolvent or unable to pay its debts as they fall due; or
a supervisor, receiver, administrator, administrative receiver or other encumbrancer takes possession of or is appointed over, or any distress, execution or other process is levied or enforced upon the whole or a substantial part of the assets of the other party.
16.2 Without prejudice to any other rights that may be available at any time, Faretext shall have the right, by giving at any time written notice to the Customer, to terminate this Agreement immediately if the Customer is guilty of fraud or wilful default.
16.3 Either party may terminate this Agreement for convenience on 90 days’ written notice at any time, provided that such termination shall not affect any existing Order Minimum Period and the Agreement shall be deemed to apply to all such existing Orders for the remainder of their applicable Minimum Period.
16.4 In the event that any Charges are not paid by the applicable Due Date, then Faretext shall notify the Customer in writing that such sums are overdue. If such sums are not paid within 2 days of such notice, then without prejudice to any other rights or remedies, Faretext shall be entitled to suspend or terminate the Services.
16.5 Any termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such termination.
16.6 Faretext may at any time, terminate the Agreement if
16.6.1 the Customer breaches any provision of the Agreement (or have acted in manner which clearly shows that the Customer intends to do so, or the Customer is unable to comply with the provisions of the Agreement); or
16.6.2 Faretext is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
16.6.3 the sub-contractor of Faretext, involved in the provision of the Service ends its relationship with Faretext or ceases to offer the services; or
16.6.4 Faretext is transitioning to no longer providing the Services to clients in the country in which the Customer is resident or from which they use the Service; or
16.6.5 the provision of the Services by Faretext is, in Faretext’s opinion, no longer commercially viable.
16.7 Faretext shall have the right to either suspend or terminate this Agreement with immediate effect if it should be discovered, through third party complaints or through Faretext’s internal monitoring procedures, if Customer is sending any SPAM messages through the Services. If Faretext suspends a Customer’s account then the Customer will have to rectify any damage caused, either to Faretext’s reputation or to a third party, and will have to commit to not sending any further SPAM through the Services. Termination or Suspension of a Customer’s account under this clause 16.7 shall be at Faretext’s sole discretion.
16.8 Faretext may temporarily suspend the Services from time to time to carry out maintenance of equipment; Faretext will use reasonable endeavours to minimise such period of suspension.
16.9 The Services may also be suspended (in whole or part) where Faretext or the third-party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.
16.10 Where the Customer cancels their account in accordance with the provisions of this Agreement, Customer information regarding use and activity of the services may be retained for a period of time in order to improve the quality and function of services; however, this will be kept anonymously. Extended periods of inactivity may result in the Customer account being terminated. From time to time Faretext may contact the Customer to confirm that they still wish to receive the services. If a response is not received, Faretext may choose to cancel the account.
16.11 The Customer acknowledges and agrees if Faretext disables access to the Customer account, the Customer will be prevented from accessing the Services, their account details or any files or other content which is contained in their account.
16.12 The Customer acknowledges and agrees that Faretext may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to clients generally at Faretext’s sole discretion, without prior notice to you.
16.13 In the event that the Customer purports to cancel the Agreement or an Order that is subject to a Monthly Commitment Charge or Faretext terminates for the Customers breach an Order that is subject to a Monthly Commitment Charge, the Termination Charges shall be payable by the Customer. Faretext may, delete all data associated with the Customer account, and in any event will comply with all Applicable Legislation.
17. Exclusion of Warranties
17.1 The Services are provided “as is” and Faretext, and its licensors or sub-contractors give you no warranty with respect to them.
17.2 The following warranties are expressly excluded:
use of the Services will meet specific requirements,
use of the Services will be uninterrupted, timely, secure or free from error,
any information obtained a result of use of the Services will be accurate or reliable, and
that defects in the operation or functionality of any Software provided as part of the Services will be corrected.
17.3 No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in the Terms.
17.4 Nothing in the Agreement shall affect those statutory rights which cannot be altered or waived.
18. Limitation of Liability
18.1 The exclusions and limitations of liability set out in this Agreement will not apply so as to restrict either party’s liability:
for death or personal injury resulting from that party’s negligence; or
for fraud or fraudulent misrepresentation; or
in respect of the payment of any amounts that are due and payable in accordance with the terms of this Agreement (including but not limited to the Charges and the Termination Charges); or
for any other liability which cannot be excluded or restricted by law;
Indemnities included within the Agreement.
The provisions at 18.1(2) above apply equally to the Customer misrepresenting or partaking in fraudulent activity in their use of the Service.
18.2 Neither party will, in an action based on breach of contract, be liable to the other for:
loss of profit, business, contract, corruption or loss of data; or
indirect, consequential, anticipated savings or indirect or special damages;
arising from a breach of this Agreement (even if advised of the possibility of such losses arising).
18.3 The Customer acknowledges and agrees that Faretext shall have no liability in respect of the following:
any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Services;
any changes which Faretext may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services);
the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Services;
your failure to provide Faretext with accurate account information;
your failure to keep your password or account details secure and confidential.
18.4 The limitations on Faretext’s liability in clause 18.3 above shall apply whether or not Faretext has been advised of or should have been aware of the possibility of any such losses arising.
19. Other Content
19.1 The Website may include hyperlinks to other web sites or content or resources. Faretext may have no control over any web sites or resources which are provided by companies or persons other than Faretext.
19.2 The Customer acknowledges and agrees that Faretext is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other Materials on or available from such web sites or resources.
19.3 The Customer acknowledge and agree that Faretext is not liable for any loss or damage which may be incurred by the Customer as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other Materials on, or available from, such web sites or resources.
21.1 As part of using the Services the Customer may (as a result of, or through their use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. The Customers use of these other services, software or goods may be subject to separate terms between the Customer and the company or person concerned. If so, the Agreement does not affect the Customers legal relationship with these other companies or individuals.
21.1 The Agreement represents the entire understanding of the parties in respect of the subject matter contained herein, and shall be deemed to supersede all previous agreements, contracts or other representations or understandings in respect of the subject matter. Each party acknowledges that in entering into the Agreement (and any other document to be entered into pursuant to it) it does not rely on any representation, warranty, collateral contract or other assurance of any person (whether party to the Agreement or not) that is not set out in the Agreement or the documents referred to in it. Each party waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation, warranty, collateral agreement or other assurance. Nothing in this clause seeks to limit or exclude either party’s liability for fraud and/or fraudulent misrepresentation.
21.2 No third party shall have any rights under or in connection with this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
21.3 The Customer agrees that Faretext may provide Customer with notices, including those regarding changes to the Agreement, by SMS, email, regular mail, or postings on the Website.
21.4 The Customer agrees that if Faretext does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Faretext has the benefit of under any applicable law), this will not be taken to be a formal waiver of Faretext’s rights and that those rights or remedies will still be available to Faretext.
21.5 The Customer agrees that Faretext will be entitled to assign, sub-contract or sublet this Agreement or any part thereof. The Customer shall not be permitted to assign or sublet this Agreement or any part thereof without the written consent of Faretext.
21.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be severed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue in full force and effect.
21.7 The Agreement shall be governed by English law. The parties agree to submit to the exclusive jurisdiction of the courts of England to resolve any legal matter arising from the Agreement. Notwithstanding this, Faretext shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
21.8 The following clauses shall be deemed to continue to apply following expiry or termination of the Agreement; 2 (Definitions), 7 (Charges), 11 (Data Protection and GDPR), 14 (Proprietary Rights), 18 (Limitation of Liability), 21 (General Legal Terms).