Terms of Service
PAPERSKY / WHOOSH
STANDARD SERVICE TERMS
1. Contract Terms
1.1 We agree to provide our service or services to you on the following terms. These constitute a contract between us and you and must be read together with any other documents explicitly agreed to be part of this contract. Any other terms and conditions contained in any other document are excluded unless their inclusion is expressly agreed in writing.
1.2 In these terms:
(a) "Authorised Users" means your employees, agents, independent contractors, clients and other people who are given passwords and full access to the Service through you;
(b) "Charges" means the charges the you have agreed to pay us for the Service;
(c) "Customer Data" means all data supplied by you to us under this Agreement;
(d) "Service" means the particular service or services that we have agreed to provide to you; and
(e) "we" and "us" means Papersky Limited a company registered in England under number 07408088 at 65 Dixon Street, Swindon, Wiltshire, SN1 3PS, United Kingdom, and Whoosh Digital Marketing Limited, a company registered in England under number 08893957 at 37 Greenhill Street, Stratford Upon Avon, CV37 6LE, United Kingdom..
2.1 We provide the following services:
(a) Agency Services which include Graphic design for print, online marketing/design and development,
(b) Papersky / Whoosh SMS Messenger for business marketing purposes, and,
(c) Papersky / Whoosh Email Messenger for business marketing purposes.
2.2 The Charges for the Service will be paid for in the following way:
All work carried out providing design and development services will be invoiced at the end of each calendar month for work carried out within that month and is payable within 15 days of invoice unless otherwise agreed.
Papersky / Whoosh SMS Messenger
Texts are sent by purchasing credits in advance, within the UK 1 Credit = 1 Text, and this value is the same for sending to many countries around world. Some international sends will cost slightly more (see our latest price list). Credits do not expire and are non refundable. Dedicated (Virtual) Numbers are paid for in advance for a period of 1, 3 or 6 months. Shortcode Keywords are paid for in advance for a period of 1, 3 or 6 months.
Papersky / Whoosh Email Messenger
There are no monthly subscription fees. Costs are per email sent (see our latest price list). There are no other costs associated with this service.
2.3 Unless agreed otherwise, all our Charges are exclusive of any applicable value added or other tax, which will be added to our invoices sent to you.
2.4 We reserve the right to suspend the Service if our Charges are overdue for payment by you. In the event of late payment we reserve the right to charge interest on the outstanding balance at the Statutory Rate.
We shall keep the Customer Data secret and treat it as confidential. This obligation of confidentiality shall survive any termination of this Agreement. We shall take appropriate technical and organisational measures against unauthorised or unlawful access to the Customer Data or its accidental loss, destruction or damage. We shall only deal with the Customer Data in accordance with your instructions.
4. Your Data
4.1 You shall own all rights in the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use all reasonable endeavours to restore the lost or damaged Customer Data from any back-up of such Customer Data maintained by us or on our behalf. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).
4.3 If we process any personal data on your behalf when performing our obligations under this Agreement, the parties record their intention that you shall be the data controller and we shall be a data processor. In any such case you:
(a) acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order for us to carry out the Service and our other obligations under this Agreement;
(b) shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf; and
(c) shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
4.4 We shall provide you with Customer Data at any time during this Agreement. We shall only hold Customer Data for a period of 30 days after the end of this Agreement.
5. Our Obligations
5.1 We undertake that the Service will be performed with reasonable skill and care.
5.2 If the Service does not conform to its description, we will, at our expense, use all reasonable endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking in the above clause. Notwithstanding the above, we:
(a) do not warrant that your use of the Service will be uninterrupted or error-free; or that the Service and/or the information obtained by you through the Service will meet your requirements; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, any misrouting of email or failure of email and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 Papersky / Whoosh SMS Messenger texts sent out using Premium/Direct routes ensure reliability, campaigns are analysed using the delivery reports. When the percentage delivered is less than 100%, this can mean a recipient handset is off, and the application will deliver as soon as the handset is turned back on and will update reports accordingly, or the recipient number may be incorrect, therefore never delivering to the destination. Unfortunately undelivered texts are non-refundable by us, as we are charged by our suppliers for sending every text message through the Papersky / Whoosh application.
6. Your Obligations
6.1 You shall:
(a) provide us with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by us
in order to provide the Service;
(b) comply with all applicable laws and regulations with respect to your activities under this Agreement;
(c) ensure that the Authorised Users use the Service in accordance with this Agreement and you shall be responsible for any Authorised User’s breach of this Agreement;
(d) ensure that your network and systems comply with the relevant specifications provided by us from time to time;
(e) be solely responsible both for procuring and maintaining your network connections and telecommunications links from your systems to us and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
(f) keep secure any identification, password and any other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including but not limited to loss, theft or unauthorised disclosure of your password or other security information;
(g) observe the procedures which we may from time to time prescribe and shall not make use of the Service which is detrimental to our other customers;
(h) use the Service allocated to you only for lawful purposes and to promptly inform us if this clause or any sub-clause of this clause has been breached or you become aware that they may have been breached. In particular:
(i) you will not use the Service in any manner
(A) which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so;
(B) which results, or could result, in damage to property or injury to any person;
(C) to harass, menace or stalk people;
(D) to defame or slander any person, or infringe upon any person’s privacy rights;
(E) which harms minors in any way;
(F) which enables a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to you;
(G) which unlawfully incites discrimination, hate or violence towards one person or group, for example because of their race, religion, gender or nationality;
(H) that involves providing or promoting illegal pyramid schemes or unlawful gambling or gaming activities;
(I) to interfere with the proper operation of the Service or any other part of our systems;
(J) to send, or cause to be sent a commercial electronic message without prior opt-in;
(K) to send, or cause to be sent a commercial electronic message without a clear opt out mechanism;
(L) in connection with any program (including a virus, Trojan horse, worm, cancelbot, time bomb) or activity (including a denial of service attack) that is designed to provide or allow any form of unauthorised control of, or result in an adverse effect, on a computer, a network or data (whether the computer, network or data is ours or anyone else’s);
(M) to access or use our or anyone else’s systems, networks or data (including through open relay, port probing and the use of packet sniffers) without consent, regardless of whether or not such access or use has any adverse effect on the system, network or data;
(N) to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, and,
(ii) you will not upload, post, link to or transmit any material:
(A) which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way; or
(B) which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person anywhere in the world.
7.1 Either we or you shall be entitled to terminate this Agreement immediately by written notice to the other if the other commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 21 days after receipt of a written notice giving full details of the breach and requiring it to be remedied.
7.2 We reserve the right to terminate and deduct credit balance to the value of any unpaid or disputed invoices issued by Papersky / Whoosh.
7.3 We reserve the right to suspend the Service if we reasonably suspect a breach by you under this Agreement. We shall have no responsibility to you for any loss (including without limitation, loss of data) that you may incur if we do so.
7.4 Either we or you shall be entitled to terminate this Agreement immediately by giving notice to the other party.
7.5 Either of us can terminate this Agreement if the other is the subject of a bankruptcy order (or the equivalent in any other jurisdiction) or the other becomes insolvent or make any arrangement of composition with, or an assignment for the benefit of, its creditors or if any of its assets are the subject of any form of seizure. If either of us is a company the other can terminate this contract forthwith if the first party goes into liquidation, either voluntary or compulsory, or if a receiver or administrative receiver or administrator is appointed.
8.1 Nothing in this Agreement shall be construed as restricting or excluding our liability for death or personal injury resulting from our negligence or for fraud.
8.2 Our liability to you under this Agreement shall not exceed the amount paid by you for the Service over the previous 12 months.
8.3 Subject to the immediately preceding sub-clause, we shall be liable to you in respect of all direct loss or damage caused by our acts or omissions and those of our employees, agents or sub-contractors, other than Excluded Loss. In this clause the expression "Excluded Loss" means all special loss (whether or not the possibility of such loss arising on a particular breach of contract or duty has been brought to our attention at the time of making this contract) and loss, corruption or destruction of data or loss of profits, business or anticipated savings, whether incurred directly or indirectly, or any indirect or consequential damage whatever, either in contract, tort (including negligence) or otherwise.
8.4 You defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Service, provided that:
(a) you give prompt notice of any such claim;
(b) we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
(c) you give sole authority to defend or settle the claim.
8.5 We shall defend you, your officers, directors and employees against any claim that the Service infringe any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
(a) we are given prompt notice of any such claim;
(b) you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
(c) we are given sole authority to defend or settle the claim.
8.6 In the defence or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 business days’ notice to you without any additional liability.
8.7 In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
(a) a modification of the Service by anyone other than us; or
(b) your use of the Service in a manner contrary to the instructions given to you by us; or
(c) your use of the Service after notice of the alleged or actual infringement from us or any appropriate authority.
9. Force Majeure
Neither party shall be liable for any breach of this Agreement caused by matters beyond its reasonable control, including, but not limited to, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving such party's employees), failures or interruptions of electricity supplies, weather of exceptional severity or acts of local or central government or other authorities.
10.1 Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
10.2 No waiver or any amendment to these terms shall be effective unless in writing and signed by both you and us.
10.3 A person who is not a party to these terms may not enforce any of them under the Contracts (Rights of Third Parties) Act 1999.
10.4 If any dispute arises out of these terms we will both attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
10.5 This Agreement shall be governed by the laws of England and we both agree to submit to the exclusive jurisdiction of the English Courts.