Terms & Conditions

Please read carefully the following Terms and Conditions of service. By clicking on the ‘I Accept’ button or equivalent (when accessing these Terms and Conditions online) or by signing and returning the order form or contract or equivalent literature to which these Terms and Conditions relate, it is thereby agreed and acknowledged that upon our acceptance your order or contract you will be bound by the terms of the Agreement and these Terms and Conditions.

Please note that these Terms and Conditions, may be amended from time to time as referred to below, apply in place of and supersede any Terms and Conditions with an earlier issue date and apply to the exclusion of any earlier agreement or understanding between the parties in relation to the same subject matter to which they relate.

Your use of any of the Service will also amount to confirmation of your acceptance of the Terms and Conditions as last published on the date of such use.

We will notify you (which may include email notification and instructions on accessing revised Terms and Conditions on our client area of our website) when we at any time amend these Terms and Conditions.

The latest changes and additions to our Terms and Conditions can be found at <http://www.txtnation.com/terms/>.

In the event that any part of the Agreement (including but not limited to the Service Order, Service Contract or Specification) conflicts with these Terms & Conditions as amended from time to time, these Terms & Conditions, as amended from time to time, shall prevail.

You may also be required to acknowledge any changed terms and conditions within a stated notice period to be able to continue to use our Services and we reserve the right to terminate the Agreement if this is not done. Where no acknowledgement is required your continued use of the Service following notice being given of any changes will constitute your acceptance of those changes to the Terms and Conditions.

1. Definitions

The following definitions apply in these Terms & Conditions:

Agreement:
The Agreement and Specification, Service Order, and Service Contract Additional Terms to which the order for the Services is accepted by txtNation, relates and any other agreement for the provision of our Services which is agreed by us is subject to these Terms and Conditions.
Billing Connectivity Provider / Payment Form:
The End User payment mechanism, including but not limited to SMS billing, credit card, online cheque, 900 number arrangements and equivalent alternative payment platforms.
Chargeback:
A charge to the customer or End-User that is frozen or reversed by the Billing Connectivity Provider.
Client:
The named entity or individual on the Service Order or otherwise contracting with txtNation in order to utilize our services and where appropriate reference to the Client shall include reference to the ‘push’ provider and/or the ‘information provider’ as referred to in the PhonepayPlus Code of Practice.
Content:
Information in electronic format supplied or made available by the Client to the End-Users, whether via the Internet and / or mobile or other similar single or multi function consumer device, whether now known or invented in the future, and any data sent or received by the Client through the Services including without limitation all data, information, material and content, including text, pictures, photographs, video, music, sound and graphics.
End User / User:
Anyone trying to access a Client’s services issued through our software or the Services.
End User Charges:
Amounts to be charged to the End User, whether by the Client or a Billing Connectivity Provider or otherwise.
End User Service:
The services supplied or made available by the Client to End-Users.
Networks:
All communication networks through which Content is delivered.
PhonepayPlus:
The body formerly known as the Independent Committee for the Supervision of Standards of the Telephone Information Services (ICSTIS) and such other regulatory or governmental body or agency or other competent authority as may replace it or assume certain of its responsibilities from time to time.
Penalty:
Any fine, fee (to include any interest charges), levy, assessment, loss or expense brought against txtNation or incurred by txtNation by or in respect of a Billing Connectivity Provider, bank, any state or federal regulatory body, agency or system that is in addition to the normal activity in working with those organisations.
Refund:
Any payment from an End User that is reversed by txtNation, the Client, or a Billing Connectivity Provider.
Services:
The service(s) to be provided to the Client under the Agreement together with any other services which txtNation agrees to provide.
Software:
Relevant links, exchanges and installation required for the Service within i) your Website, and / or ii) your media.
txtNation:
txtNation Limited (registered number 05642278)
Billacombe Road
Plymouth
PL9 7HX
VAT:
Value added tax chargeable under English law for the time being and any similar additional tax.
Website:
The website(s) that utilizes our payment system and/or site access management tools.

A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person’s legal and personal representatives, successors and permitted assignors.

A reference to a statute or statutory regulation/provision taking account of any amendments, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

Any obligation in the Agreement not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

2. End User Pricing Options

You are responsible for ensuring that:

and agree to indemnify txtNation from and against all Refunds, Penalties and other compensation payable by us or other costs and expenses (including professional fees and reasonable management and administration costs) incurred by us as a result of any breach of this obligation by you.

3. Client Obligations

You acknowledge and agree that, in the provision of our Services, txtNation is providing a mechanism for you to operate the End User Services and that txtNation is not in any way authorising, advising upon, endorsing or otherwise approving your End User Services. Accordingly you acknowledge that you will remain responsible for the End User Services and agree that the following conditions and limitations of txtNation’s liability are fair and reasonable in the circumstances.

3.1

The Client shall provide Content and otherwise utilise the Services in accordance with all relevant provisions of the Communications Act 2003 (“the Act”) and the Financial Services and Markets Act 2000 (“FSMA”) and the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (No 544) and all other applicable laws regulations and directions of appropriate regulatory bodies regulating or applicable to the provision of the End-User Services including such requirements of Ofcom and PhonepayPlus and the provisions of the Data Protection Act 1998, the Consumer Protection (Distance Selling) Regulations 2000 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as the same may be modified or re-enacted from time to time (“Laws and Codes of Practice”) as the same are in force from time to time. For the avoidance of doubt, neither the Networks nor txtNation are registered with the Financial Services Authority as e-money issuers and the Client must ensure that the End User Service and Payment Form are fully compliant with such requirements. Further, the Client shall not without the approval of txtNation provide any End User Services which may be defined under the FSMA as ‘e-money’ services and shall not provide any End User Services which, in the reasonable opinion of txtNation, put or may put txtNation or the Networks in breach of their obligations under the FSMA.

3.2

The Client shall at all times throughout the term of the Agreement comply with txtNation’s reasonable directions issued from time to time regarding or relating to the Services.

3.3

The Client shall not cause, or knowingly or recklessly allow others to cause, any nuisance, annoyance or inconvenience, whether to txtNation, the Networks or End Users, by any means including without limitation the sending of any unsolicited communications.

3.4

The Client shall not send or procure the sending of any communication to any End User on any SMS/MMS network or chargeable internet service where six months have elapsed since such End User last requested a billable End User Service and the End User has not expressly requested that communication.

3.5

The Client shall not provide Content which is likely to bring the Networks (at their sole discretion) or txtNation (at its reasonable discretion) into disrepute.

3.6

The Client shall at all times ensure that all publicity and/or promotional material issued by it or on its behalf in respect of or in connection with the Content, the End User Services and any associated services complies in all respects with all Laws and Codes of Practice.

3.7

In any publicity or other promotional activity the Client shall not state or imply any approval by any of the Networks or by txtNation (or any associated company of the Networks or txtNation) of any Content nor refer to the Networks or txtNation without the express written approval of a duly authorised officer of the Networks or txtNation, as appropriate.

3.8

Notwithstanding the foregoing, the Client shall submit to txtNation for prior consideration all proposals for publicity for the End User Services utilising the Services and any associated services from time to time. In particular, the Client shall give txtNation seven working days’ notice in writing before advertising on any media (including television, radio, the Internet, etc) any services associated with the use of the Services. The Client will not commit to going and will not go live before txtNation has agreed the promotion in writing. Any such agreement shall only amount to confirmation that txtNation is prepared to provide the Services in relation to that promotion on these Terms and Conditions and shall not amount to any form of guarantee warranty or other assurance that such material complies with applicable Laws and Codes of Practice or these Terms and Conditions, which shall remain the responsibility of the Client.

3.9

The Client shall not at any time provide any Content where the provision of which is or may be a criminal offence or which infringes or may infringe any third party intellectual property rights or is or may otherwise be unlawful under or by virtue of any rule of common or equitable law or under any enactment for the time being and from time to time in force or involves a wrong actionable at the suit of any person and the Client will immediately cease to provide, at txtNation’s expressed oral or written request, any Content which txtNation reasonably considers may have been provided in breach of these Terms and Conditions.

Without prejudice to the generality of the foregoing, the Client shall not, without the written permission of txtNation, at any time provide any service on any Website hosted by txtNation or which may otherwise be subject to these Terms and Conditions or the provision of which may in any way be associated with txtNation (i) as a means of contracting for the sale of, or billing End Users for goods; or (ii) for facilitating, promoting or operating competitions, lotteries or prize draws; or (iii) where the Content provided by the Client is not supplied directly and in its entirety to the End User’s receiving device. Under no circumstances may the Client advertise or market any of its End User Services which have not been solicited by the recipient.

3.10

The Client shall ensure that before any Content is made available by the Client all such rights, authorisations, licences, consents and permissions have been obtained or granted and all such requirements of Law and Codes of Practice or of any regulatory body or any other requirements of any competent authority or public body have been complied with as may be necessary and sufficient to enable txtNation to provide End User access to the End User Services. txtNation shall have no obligation whether under these Terms and Conditions or otherwise to make available to the Client any equipment, facilities or Services until such time as the Client has complied with all of its obligations under this Clause 3.10 to the satisfaction of txtNation.

3.11

The Client shall provide to txtNation such assistance and/or information as txtNation may reasonably require in order to comply with all or any requirements at any time and from time to time imposed by Laws and Codes of Practice in the UK or by any authorisation given under an Act or by any regulatory body or by its contractual obligations to the Networks, or instruction given by a Billing Connectivity Provider, regulatory body, or by any other competent authority or public body which are or may be applicable to or affect the provision of or the Client’s use of the Services.

3.12

The Client shall not provide End User Services to End Users so that the total cost to the End User is, in the reasonable opinion of txtNation, excessive whether in respect of the cost of any individual End User Service or by reason of such End User Service being provided in a manner that renders the End User liable to receive large numbers of chargeable Content or other charged for services which it may not reasonably anticipate the scale of the cost or have the opportunity to terminate prior to incurring such cost.

3.13

The Client shall not at any time assign, transfer or sub-contract the Agreement or any of its rights or obligations under these Terms and Conditions or any part thereof to any other person without the prior written consent of txtNation.

3.14

The Client shall ensure that no person other than the Client gains access to the Client’s accounts for the Services.

3.15

The Client must not send adult content on non-adult short code or any other non-adult service or technology platform facilitated or provisioned by txtNation under any circumstances. The Client will be responsible for and will indemnify txtNation in respect of all administrative costs involved in investigating and dealing with any issues centred on the Client’s use of adult content on a non-adult short code, service or technology platform including but not limited to operator fees, regulatory fines, legal costs and all reasonable associated costs that may from time to time arise in connection with any breach of this provision.

3.16

The Client agrees to cover the full cost of sending Mobile Terminated (MT) One-Way Bulk messages via txtNation systems or systems authorised for Client’s use by txtNation in a timeous manner unless otherwise agreed by txtNation in writing.

3.17

Clients purchasing a unique or dedicated shortcode or shortcodes will be liable for all fees for this or these effective immediately from the day the contract is entered into, regardless of the date upon which the code is activated. The Client acknowledges that Networks, carriers or third-party providers have varying activation dates and that the fees chargeable by txtNation for the said shortcode or shortcodes are due from the start date of the relevant contract period and not any later activation date.

3.18

The Client shall promptly upon request provide txtNation with such information relating to any Content or use of the Services and associated Services by the Client and provide such access to the Website and the Software (including allowing the incorporation into the Website of such hyperlinks and other information for End Users) as txtNation may reasonably request for the proper provision by txtNation of the Services in accordance with the Agreement and these Terms and Conditions. txtNation reserves the right to hold in a secure database any such information (including but not limited to screenshots of client websites and applications) reasonably required to track, monitor and evaluate Client Content and Services for compliance with the laws and regulations applicable to said Content and Services.

3.19

The Client shall promptly upon request provide to all regulatory bodies (including without limitation Ofcom and PhonepayPlus) such information or material relating to any End User Service or future service the Client may provide as the regulatory body may request (whether from either txtNation or the Client) in order to carry out any investigation in connection with (i) such Service; or (ii) the Client’s relationship with any other entity with whom it may contract in relation to such Services. The Client acknowledges that txtNation may charge an administration fee, currently 150 GBP plus VAT per hour, for correspondence and other communications and administration time expended in dealing with each regulatory body regarding such requests.

3.20

The Client shall on request at any time, and from time to time, produce evidence satisfactory to txtNation that:

3.21

The Client hereby acknowledges that the base of End Users on the Networks covers all sexes, age groups, sexual orientations and ethnic and religious groups. The Client shall be responsible for the Content provided to End Users and shall take all reasonable and appropriate measures to ensure that the Content is not inappropriate for the End User. For the purposes of these Terms and Conditions, “inappropriate” shall mean anything that violates the rights of a third party including but not limited to privacy, publicity, copyright, patent, trade mark or any other intellectual property and it also applies to Content and/or associated End User Services that could reasonably be interpreted as illegal, obscene, defamatory, libellous, or discriminatory to groups including but not limited to ethnic, religious and sexual orientations.

3.22

The Client shall provide to txtNation forthwith upon request such information as txtNation may from time to time require in order to verify to its satisfaction the compliance by the Client with the provisions of this Clause 3. Notwithstanding anything to the contrary in these Terms and Conditions, txtNation shall be entitled to pass such information (or any part thereof) to any regulatory body or any other competent authority or public body who may require the same.

3.23

Without prejudice to txtNation’s rights under these Terms and Conditions the parties hereby expressly agree that any breach of the provisions of this Clause 3 shall entitle txtNation to suspend Client and/or End User access to the Services and/or to cease to provide the Services in whole or in part at any time and without notice and txtNation reserves the right to regard any breach of the provisions of this Clause 3 as a material breach of these Terms and Conditions for the purposes of 23 hereof.

3.24

The Client shall be liable to pay txtNation, on demand, all reasonable costs, charges or losses sustained or incurred by txtNation (including direct, indirect or consequential losses, loss of profit and loss of reputation and those arising from injury to death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement, subject to txtNation confirming such costs, charges and losses to the Client in writing.

3.25

Upon signature the Client shall be liable for all associated set-up costs and the full contractual term of the Agreement, to also include in the event that Services are not supplied due to the Client’s non-payment of associated set-up costs inclusive of the first monthly fee.

3.26

Information provider undertaking (“Undertaking”) in accordance with paragraphs 8.3.4 and 8.7 of the PHONEPAYPLUS Code of Practice, 11th Edition and other regulators Codes of Practice where applicable (the “Code”), between txtNation and Client.

Words and phrases used in this Undertaking take the meanings attributed to them in the Code and (where the context permits) the Master contract between txtNation and Client. This Undertaking is given by the Client (referred to below as the “information provider”) in consideration of txtNation agreeing to perform the provisioned services (the “txtNation Services”).

The Undertaking given by the information provider is as follows:

  1. The information provider hereby accepts full responsibility for:
    1. each service – including (without limitation) all short codes, tariffs, service types, service mechanics and messages – that uses the txtNation Services;
    2. the promotion of each such service; and
  2. The information provider hereby undertakes that, in the event that a breach of the Code is established in relation to any such service or its promotion, and a sanction and/or administrative charge is imposed, the information provider will be responsible for compliance with that sanction and the payment of that administrative charge.

3.27

Client hereby agrees to register with the PhonepayPlus Registration Scheme (“the Scheme”) prior to making Content or Services accessible to End Users in the United Kingdom. Client must provide to txtNation the registration number and date of registration with the Scheme such that txtNation is able to verify the said registration details prior to facilitating or supplying Content or Services such that they are accessible, or can be made accessible by Client, to End Users. Failure to comply with the Scheme will subject Client account to suspension or cancellation of Content or Services at txtNation's sole discretion.

3.28

txtNation reserves the right to charge Client or deduct from Client balance or revenues owing any such Network charges as may arise for processing a message upon a second or subsequent attempt (such messages hereby referred to as “Retries”) where the initial attempt had failed to charge the End User. Client should make all reasonable efforts to avail themselves of the latest Network charges for Retries by requesting a charges schedule from their account manager.

3.29

As default txtNation manage a retry policy for you. The policy frequency varies by the country, the service type, billing type, delivery report availability and also according to data analysis, aiming to extract the most money with as few retries as possible. Because there are no fees on txtNation managed retries, and because of the manual work involved when processing and analysing the process, successfully retried messages are paid out at 50%, and the money goes into a holding account balance for an additional 6 months after the normal payout date in case the user disputes the retried transaction, e.g. should a user top-up and re-purchase via a new transaction, the successfully retried transaction will be refunded. You can request for this to be switched off, or should txtNation identify that you are performing retries on failed messages, we will switch this off on your behalf. For more information about this please contact your account manager.

3.30

txtNation takes the fraudulent use of its platform, non-compliance and breaches of its Yellow and Red Card Policy very seriously and there may be a prohibitive charge made by txtNation to the Client of up to but not exceeding £5,000 (GBP), $10,000 (USD) or €7,500 (EUR) (“Fraud Prevention Charge/Non-Compliance Charge”) per incident in cases where Client has committed fraud or non-compliance or knowingly facilitated or allowed others to commit or facilitate fraud or non-compliance via txtNation’s platform. The Fraud Prevention/Non-Compliance Charge shall be charged following an investigation by txtNation and/or the relevant Network or Networks and/or third party detection service and may be deducted from the Client’s account balance or otherwise demanded of the Client following such investigation.

4. Our Obligations

4.1

Subject to compliance by the Client with its obligations under the Agreement and these Terms and Conditions, including payment in full by their due date of all sums due from the Client, we shall provide the Services with reasonable care and skill and permit the Client access to the Services.

4.2

On acceptance of the Client’s order we will endeavour to select and use only third party suppliers in connection to the provision of such services whom we reasonably consider capable and competent and who will respect each Parties and End Users confidential and sensitive data. However, txtNation will not accept any liability nor give any warranty as to the availability or provision of such connected services and will not be held accountable for such liability in action whether it brought in tort or contract.

4.3

We shall use all reasonable endeavours to maintain the Services 24 hours in every day during the term of the Agreement, but txtNation does not warrant that the Services or the Networks or txtNation’s internet connection or any Public Network will be fault-free or free of interruptions. txtNation shall not be liable for any failure to maintain the Services in such manner despite the use of such endeavours whether this arises from a technical or other such failure in the Services, at Network level or otherwise.

4.4

txtNation may from time to time to improve or alter the Services as it deems appropriate but shall not do so without your prior consent unless such changes do not substantially affect the nature of the Services or where such changes are necessary to comply with any applicable Laws and Codes of Practice.

4.5

txtNation reserves the right to suspend access to part or all of the Services as required for the purposes of remedial or preventative maintenance or improvement of the Services provided that txtNation shall use all reasonable endeavours to keep such suspension to a minimum.

4.6

If it deems appropriate the Networks and/or txtNation may promote their value added services on their websites. However, txtNation agrees that it shall not (and shall use reasonable endeavours to procure that the Networks do not) without the written consent of the Client (such consent not to be unreasonably withheld or delayed) make reference in its and/or their published information to the Client as a client of txtNation or to the Services provided to the Client.

4.7

txtNation shall accept urgent fault reports by email to faults@txtnation.com, through our dedicated support system at http://www.txtnation.com/sd/ or by telephone on +44 (0)175 2273490. There shall be no charge by txtNation for receipt of urgent fault report calls, and no limit on the number of urgent fault report calls logged in respect of any Client. For the removal of doubt, general business enquiries about a Client’s account should be referred in the first instance to the designated account manager; and general technical enquiries should be entered into our dedicated support system at http://www.txtnation.com/sd/ where such enquiries are ordinarily dealt with on a first-come, first served basis.

4.8

txtNation shall (at the Client’s expense) provide all reasonable cooperation to the Client in respect of any investigation by any regulatory body or other competent authority (including without limitation PhonepayPlus) regarding the End User Services or the Services.

5. Credit Checks and Deposit

5.1

txtNation reserves the right to carry out credit reference checks from reputable organisations in respect of Clients. txtNation may, subject to satisfactory credit reports and references being received by it in respect of the Client, offer to the Client credit terms, such as instalment payments and payment terms for a period after the date of invoice, as txtNation considers appropriate.

5.2

Where credit terms are provided to the Client, such terms may be withdrawn or modified at any time by txtNation on notice to the Client in the event that credit references or reports unsatisfactory to txtNation are received by it in respect of the Client or the Client fails to make any payment when due.

5.3

txtNation shall be entitled to require a payment in advance (and as appropriate replenishing of) by the Client of a deposit of such sum representing up to 12 months’ fees (as determined or reasonably estimated by txtNation). In addition, txtNation may appropriate sums otherwise due to the Client for the purposes of using the same towards payment of such a deposit.

5.4

txtNation will be entitled to retain the deposit or any part of it until the discharge of all liability of the Client under the Agreement and these Terms and Conditions or under any other agreement between txtNation and the Client and may from time to time appropriate and pay the deposit or any part of it in or towards payment of any sums due from the Client to txtNation or to a regulatory body or other competent authority.

5.5

Upon repayment of any part of the deposit or, if earlier, where any part of the deposit has been retained for more than one year, txtNation shall account to the Client a sum by way of simple interest calculated by reference to (less costs and management expenses incurred) the amount of interest actually earned by txtNation on such deposit monies.

6. Services, Use of the Services, and Database rights

6.1

The Services covered by these Terms and Conditions include all txtNation flagship products (including but not limited to mBILL, mENABLE, mFUSION, mVERIFY, mCHAT, and mPUSH) billing, content, campaign, and connectivity solutions, mobile services, bespoke development projects and site administration tools (including but not limited to our Client Control Panel and our support system) comprised in or associated with the Services. txtNation offers various levels of Service which attract differing levels of charges and it is the Client’s responsibility to ensure that the Services requested meet its requirements. The Client shall be responsible for the payment of the applicable charges for the Services comprised in the Agreement. Further details are available on request.

6.2

The Client agrees to compensate txtNation for all or any damages, claims and costs which may arise from the Client’s account usage. txtNation reserves the right to withhold revenues to the value of £10 per "Escalation" and suspend or terminate the Client’s use of the txtNation Services or any part of them and/or to remove and discard any Content if in txtNation’s reasonable opinion "Escalations" such as reasons contributing to violations of txtNation’s Acceptable Use Policy and/or the Agreement and/or any other Service Agreement or Contract with txtNation, a misuse of the Services, or high volumes of Chargebacks, excessive returned items, excessive Refunds, Regulator Enquiries, Billing Connectivity Provider Enquiries or End User complaints. The Client agrees that "Escalations" are serious customer care enquiries that fall outside of any customer care package that may have been purchased.

6.3

txtNation may from time to time begin charging for additional Services reasonably required as a result of your instructions, lack of instructions or breach of any provisions of the Agreement or these Terms and Conditions. txtNation also reserves the right to offer new Services that are not covered by the Agreement, which may be subject to additional charges if the Client chooses to use them. Such additional charges will not be raised until the Client has been made aware of them and has accepted the additional Services to which the charges relate.

6.4

txtNation at their sole discretion can perform live testing from handsets in certain countries. The cost for txtNation performing testing of billed messages is £5.00 per test plus the cost of the premium message(s) charged to the handset. This charge will settled by it appearing as a chargeback on your purchase order and will be deducted from your revenue outpayment.

6.5

Those Client’s who opt to have their own billing facilities (e.g. a clients own paypal account) integrated into any of the Services provided to them by txtNation understand and agree that a 15% processing charge will be payable to txtNation which is to be paid either as a monthly invoiced fee or as an offset against any monthly revenue which would be payable at the end of each relevant payment period.

6.6

In order to provide the highest level of service to all clients, data provided by End Users for access will be combined with data from other client End Users. The combined database will be used for risk analysis of the Client’s and other clients’ transactions. Ownership of all copyright, database right and other intellectual property rights in the combined database remains with txtNation. Credit card information and other personal data from txtNation’s database will not, unless required by law, be provided to the Client or to any other party during the term of the agreement or after its termination but shall be kept securely in accordance with the regulations set out in the Data Protection Act 1998. The Client is responsible for maintaining a record of all user ID information for its own use as well as for backup in the event of a system failure that requires restoration as in order to protect End Users accounts txtNation is unable to supply this information to the Client.

6.7

Notwithstanding the foregoing, txtNation reserves the right to transfer its database in the event of a transfer of its business or a relevant part of it or a change in its ownership.

6.8

Any unauthorized attempt to gain access to txtNation’s database, services or systems by the Client, or anyone directly or indirectly associated or related to the Client or on its behalf, however remotely, will constitute a material breach of this Agreement and Terms and Conditions. In the event of any such attempt to gain access, txtNation may immediately terminate this Agreement, and the Client will immediately return to txtNation (or, at its request destroy and verify to its satisfaction the destruction of) all copies of any information obtained by this access.

6.9

Subject to clause 10.4, upon such termination as referred to in the preceding clause, the Client will immediately uninstall or otherwise destroy all copies of txtNation’s software, hyperlinks, and other property and data belonging to txtNation or its Network service providers and any accompanying documentation and to certify the same to txtNation’s satisfaction.

7. Fees and Variation of Charges

7.1

txtNation will charge, and Client agrees to pay, the applicable fees for the Services provided in accordance with the Agreement and these Terms and Conditions. txtNation shall have the right to change the fees stated in the Agreement in accordance with clause 7.2. Fees shall be charged ongoing until the Agreement is cancelled in writing by the Client in accordance with the Agreement and these Terms and Conditions.

7.2

Subject as follows, txtNation shall be entitled to review and if it so desires vary from time to time the charges payable for the Services and/or introduce new charges such varied or new charges to take effect four weeks after the date of written notice to the Client or such later date as specified within that notice.

7.3

txtNation shall be entitled to vary its existing charges for each of the Services by up to 10% within any one year period without prior consent of the Client. In the event that txtNation wishes to increase its existing charges by more than 10% within any such period or wishes to introduce new charges for any existing Services then, notwithstanding any other provision of the Agreement or these Terms and Conditions, the Client shall be entitled to terminate the Agreement on not less than seven days’ written notice to txtNation of its intention to do so, provided that such notice expires not later than the effective date of the varied or new charges.

7.4

The Client agrees that txtNation can, on notice to the Client, reasonably increase transaction charges to reflect any increases in the Billing Connectivity Provider’s charges or if it is necessary to switch to a more expensive channel upon an old channel ceasing to become available.

7.5

txtNation reserves the right to deduct all fees and other sums due to it from the Client from funds held on behalf of the Client, including deposits, before payment of the balance to the Client. txtNation shall also be entitled to set-off against any sum owing by it to the Client the amount of any sum owing by txtNation to the Client and deduct such amount from any sum due from txtNation to the Client in satisfaction thereof whether or not then invoiced by or to the Client.

7.6

In addition to the fees, txtNation reserves the right at any time to deduct from the deposit and other sums due to the Client any Refunds, returned items, Chargeback’s, End User compensation, and/ or Penalties (collectively "Refund/s") imposed directly or indirectly on and/ or by txtNation and its acquiring bank, card and other payment processing associations, regulatory bodies and other competent authorities, or the Billing Connectivity Providers to the extent that such sums relate to or arise as a result of the End User Services or txtNation’s provision of the Services in accordance with the Client’s instructions and the Agreement and these Terms and Conditions. In addition, a £10 administration charge will be deducted from deposit or other sums for each individual End User Refund facilitated by txtNation or its partners.

7.7

For 30 day trial accounts txtNation may collect a down payment of an amount reasonably estimated by txtNation as the likely costs to be incurred by it in setting up and operating the account for the trial period. If at the end of this period the Client chooses to terminate the Services they shall not be entitled to any refund of any of the down payment. In the event that the actual fees chargeable to the Client in respect of the trial period exceed the amount of the down payment, txtNation shall be entitled to seek payment of the excess.

7.8

The Client shall be liable for and shall indemnify txtNation from and against any damage, including indirect or consequential damage, for inadequate End User protection (including but not limited to spam, phishing, and fraud) and legal violations that result from the End User Service, the Client’s improper use of the Services, the Client’s instructions, or other fault of the Client or its agents or contractors.

8. Payments Terms and processing of Refunds and Outpayments

8.1

The Client acknowledges and agrees that payments to it in respect of revenue generated by the Services for the Client are paid in arrears and are dependent upon receipt by txtNation of the appropriate cleared sums from its Billing Connectivity Providers and other third parties responsible for collection of payments for the End User Services from End Users over which txtNation has little or no control. The Client acknowledges that such revenue, net of any deductions under these Terms and Conditions, will typically become payable 90 days following the end of the month in which they are generated and may be later depending upon speed of receipt of cleared funds by txtNation from Billing Connectivity Providers and other third parties.

8.2

All payouts are subject to specific thresholds. Purchase order balances of less than £1000 will not be paid out until this figure is met or exceeded. If the £1000 threshold is not met or exceeded within two (2) years, you forfeit your revenues to txtNation. The Client agrees to request a purchase order no less infrequently than each quarter year to enable us to process your outpayment(s). Clients who do not request a purchase order and then submit the relevant invoice within six (6) months from when the traffic was generated surrender their funds to txtNation. In addition, you must generate revenues equal to or exceeding £50 per month on each network credit line in order to receive an outpayment for that credit line for that month.

8.3

The net amount of payment to the Client for any accounting period will be the amount of End User Charges less Service fees and charges, Network fees, End User commission (EUC), currency fluctuation deductions, and Refunds, Chargebacks, returned items, payment delivery fees, taxes, and penalties not processed in previous payments, and any additional security deposit amounts required, and any non-payments or other sums due to Billing Connectivity Providers. Standard EUC is 1% of End User revenue before deduction of other fees, charges or other deductions howsoever named in this clause 8.3. The Client accepts that it shall be responsible for and shall indemnify and reimburse to txtNation or its Billing Connectivity Providers any End User non-payments or underpayments. txtNation reserves the right to satisfy any of the above deductions out of any deposit held on account in respect of the Client and to require the Client to replenish the deposit to a level reasonably deemed appropriate by txtNation or the Billing Connectivity Provider.

8.4

txtNation will make every effort to make payment in a timely manner but cannot be held liable for any delay in payment due to the errors, procrastination or otherwise of Billing Connectivity Providers or other third parties. txtNation shall have no liability for any non-receipt of End-User payments by any Billing Connectivity Providers or other third parties or for non-payment of revenues generated for the Client as a result. txtNation will use its reasonable endeavours to collect any revenues generated in this situation. The Client and txtNation agree that:

8.5

txtNation takes the risk of the improperly instigated Chargebacks very seriously and will investigate Chargebacks made against charges debited from Client credit cards or credit accounts. txtNation will work with relevant financial institutions endeavouring to ensure that Chargeback issues are resolved swiftly. In the event that it is determined that a Chargeback has been improperly made in respect of a Client credit card or credit account, txtNation reserves the right to charge a reasonable administration charge for each such Chargeback, which is currently set at the sum of 15% of the amount of the Chargeback, or £10 per chargeback whichever is the greater. The administration fee is additional to the Client’s obligation to pay the amount of the Chargeback improperly made.

8.6

http://www.txtnation.com/payout.php are subject to change and we advise that you therefore check this site regularly to avail yourself to the latest outpayment details. In cases where outpayments may change substantially, txtNation will endeavor to advise you of such changes with reasonable notice, reserving the right to do so at their sole discretion.

8.7

In order to resolve complaints and disputes, the Client agrees that txtNation may, acting reasonably, issue Refunds without the Client’s prior knowledge or approval. txtNation may also include the End User in its database of blocked accounts if there is an indication of fraud or any inappropriate use of the End User’s account or information by the End User or anyone else. Should the money value of refunds be higher than revenue generated in respect of the Client’s account with txtNation, the Client will be liable to pay any excess to txtNation.

8.8

The Client hereby agrees, upon txtNation becoming aware of any investigation by Ofcom or PhonepayPlus or other applicable governmental or regulatory body in respect of any potential or alleged breach of any Laws and Codes of Practice in connection with any End User Services or End User account where it is reasonably considered by txtNation that a Chargeback Refund or End User compensation may be made or payable as a result, txtNation may withhold a reasonable amount of the Client revenues until conclusion of any such investigation or when it becomes apparent that no Chargeback Refund or End User compensation will be made or be payable as a result. txtNation shall then account to the Client in respect of such withholding less any Chargebacks, Refunds or End User Compensation made in respect of or paid out of such withholding.

8.9

txtNation reserves the right to withhold full revenues or part revenues at its sole discretion where such revenues have been flagged as fraudulent. txtNation and related Billing Connectivity Providers use monitoring technology to highlight potential Client and/or End User fraud connected directly or indirectly to the End User Service. Client may be presented with reports or information on potential fraud arising from txtNation and/or Billing Connectivity Provider monitoring and Client will be required to send to txtNation within five (5) business days further information to confirm or disprove the reports. txtNation will evaluate the reports and Client responses to the reports prior to forming a decision on the contested revenue. In cases where txtNation believes that Client revenues or part revenues are likely to be fraudulent or otherwise illegitimately generated by the Client and/or End User, contested revenues will be withheld in perpetuity.

8.10

The Client should appreciate that due to the fluctuating nature of End User receipts and other Client revenues and the possibility of delays in payment by Billing Connectivity Providers, currency fluctuations, Refunds and Chargebacks being made in respect of or against such sums, live account balance and outpayments information on the client administration website (“control panel”) or elsewhere on related txtNation systems are a guide only and not an accurate record of the Client outpayments received. The displayed account balance is based solely on the best available reports from the Billing Connectivity Providers and txtNation takes no responsibility for the accuracy of these reports.

8.11

The Client agrees to request a purchase order for revenues due to it under these Terms and Conditions no less infrequently than each quarter year to enable txtNation to process the Client’s outpayment(s). txtNation has an obligation to submit VAT returns quarterly to HM Revenue and Customs and requires that Clients submit their invoices to txtNation in a timeous manner.

8.12

If all or part of the Service is cancelled, for whatever reason, the associated revenue or part of it, including any deposit, due to the Client may be held by txtNation until a final reconciliation has been completed by txtNation. txtNation will endeavour to complete the final reconciliation as soon as possible, but which will be subject to its receipt of final balances and statements from Billing Connectivity Providers.

8.13

Standard generated revenues are deposited into a Great British Pounds Sterling (GBP) bank account prior to payment to the Clients. The Client will be paid in GBP to its nominated bank account. The Client acknowledges and agrees that although payouts due to the Client may be displayed in its domestic currency, its revenues are subject to currency fluctuations. txtNation takes no responsibility for such fluctuations. Options for other worldwide bank deposits in other currencies are also available on request.

8.14

We do not issue refunds on services already provisioned for your use because of the administrative and technical costs associated with activating those services. We may incur minimum service terms with our partners or subsidiaries that limit our responsibility to honour a refund request. It is your responsibility to ensure that services are appropriate for your needs, and that you have sought advice from your account manager, before signing an agreement with us.

9. Termination

9.1

Without prejudice to any other rights or remedies which the parties may have, Client may terminate the Agreement on giving written notice in accordance with this section (9) and with due regard to the notice period outlined in the relevant clause of the Client’s individual Service Agreement. For its part, txtNation may terminate the Agreement without liability immediately on giving notice to the Client if the Client repeatedly breaches any terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.

9.2

Notice of cancellation or termination must be given in hardcopy written form to txtNation’s registered office address at the date of issue of such notice. No other form of communication will be accepted by txtNation as a form of notice of cancellation. Each contractual term will become due in full in the event that no cancellation or termination is received by txtNation.

9.3

txtNation may suspend its provision of the Services or terminate the Agreement immediately upon notice to the Client if the Client commits any form of material breach of these Terms and Conditions or violates txtNation’s Acceptable Use Policy (AUP). In cases of minor violations, txtNation will consider giving the Client a reasonable opportunity to become compliant, however txtNation reserves the right to terminate the Agreement or take any other such action it feels is appropriate and lawful should the Client not comply within this stipulated period.

9.4

All payouts are subject to specific thresholds. Purchase order balances of less than £1000 will not be paid out until this figure is met or exceeded. If the £1000 threshold is not met or exceeded within a two (2) years, you forfeit your revenues to txtNation. The Client agrees to request a purchase order no less infrequently than each quarter year to enable the process of such outpayment(s). Clients who do not request a purchase order and then submit the relevant invoice within six (6) months from when the traffic was generated surrender their funds to txtNation. In addition to clause 8.10, you must generate revenues equal to or exceeding £50 on each network credit line in a month in order to receive an outpayment for that credit line for that month.

9.5

txtNation reserves the right to terminate the Agreement or any Services, immediately, if the Client suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts within the meaning of section 123 Insolvency Act 1986 or (being a natural person) is deemed either unpayable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning 268 Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply. Is the subject of a bankruptcy order, becomes insolvent, makes any arrangement or composition with or assignment for the benefit of its creditors, goes into voluntary or compulsory liquidation, has a receiver or administrator appointed over its assets, if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to it, or if it ceases or threatens to cease to carry on its business or if in txtNation’s reasonable discretion the Client’s End User Services are creating excessive complaints. A floating charge holder over the assets of the Client has become entitled to appoint, or has appointed, an administrative receiver, or a person becomes entitled to appoint a receiver over the assets of the Client or a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days.

9.6

Unless otherwise agreed by txtNation, delivery of the Services will normally be made available online within 2 working days of txtNation’s acceptance of the Client’s order and receipt of payment of any initial sums required from the Client. Due to the highly involved nature of administration, setup and support, refunds cannot be provided once a Client order has been accepted by txtNation.

9.7

On termination of the Agreement for any reason the Client shall immediately pay to txtNation any and all outstanding payments and interest in respect of Services supplied.

9.8

On termination of the Agreement for any reason the accrued rights and liabilities of the parties as at termination and the continuation of any provision, shall not be affected and clauses 13, 14, 18, 20, 24 and 25 of these Terms and Conditions shall survive and continue in full force and effect.

10. The End User Services and Our AUP

10.1

The Client agrees to use the Services for the sale of legal content and services from its Website or promotion of its business. The Client will not use the Services for the sale of goods or items that cannot be downloaded or accessed by its End Users.

10.2

The Client also agrees to abide by these Terms and Conditions and our Acceptable Use Policy (AUP).

10.3

txtNation reserves the right to manually or electronically review the Client’s Website(s) to ensure there are no violations of these Terms and Condition or the AUP.

10.4

On signup, txtNation will plainly show the End User the price(s) the Client is charging and all terms and conditions of the purchase (as each is notified to txtNation by the Client). The Client is responsible for the accuracy of all such information provided to txtNation. If the Agreement is terminated by either txtNation or the Client for any reason then, notwithstanding any other provision of these Terms and Conditions, the Client must leave the ability for End Users to cancel their purchases through our Services until there are no more active recurring memberships.

10.5

The Client has the responsibility to provide support for End Users’ technical or billing enquiries and to make every attempt to resolve issues promptly and amicably. txtNation provides end-user support at its discretion via its online support system in addition to Client’s end-user support. Availability of end-user support is not guaranteed unless otherwise agreed in writing between the Client and txtNation. For the removal of doubt, certain products including the txtNation mBILL platform do not come with txtNation end-user support and the Client must ensure that they have adequate resources to provide such support.

10.6

The Client may change the End-User prices and subscription options for its End User Services whenever it wishes provided that it gives txtNation sufficient notice of such changes to enable txtNation to update its information and any information displayed to End Users as part of the Service and to make appropriate revised arrangements with the Billing Connectivity Providers. The correctness, functionality, and accuracy of these changes are the Client’s responsibility, as failure to do so could result in its Services being suspended whilst rectifications are made to bring their Agreement back in line with regulatory conditions. The Client also agrees to indemnify txtNation for any fines incurred by them from such regulatory organisations in respect of the breach.

10.7

The Client will not use txtNation Services to pay for or receive payment for any narcotics, controlled substances, steroids, prescription drugs or any other goods or services disallowed by txtNation’s Billing Connectivity Providers or by law.

10.8

The Client will not use txtNation Services to receive payment for any sexually obscene materials from countries whose local laws prohibit the distribution of such materials to the End User and the Client will take all reasonable and reasonable steps to confirm the age identity and location of End Users accessing any materials that are restricted to persons of a certain age or by locality.

10.9

It is a requirement to display all relevant daily maximum billing amounts for each country where their Service is available. The Client also understands that this requirement should also be visible in their terms and conditions to make clear to the user what their maximum billing amount is per day and for each country.

11. Authority

11.1

By placing an order with txtNation the person doing so on the Client’s behalf is stating and warranting to txtNation that it is duly authorised to contract on the Client’s behalf and in its name and that it and the Client are of legal age in the state or country where the business is located to enter into this agreement and have obtained all the necessary licenses and certificates required to perform their obligations under the Agreement and these Terms and Conditions, including obtaining all necessary intellectual property rights and licences for the provision of the End-User Services via the Services.

11.2

The Client also agrees that if it does not comply with a reasonable request from txtNation to remove any material which the Client does not have, or which txtNation reasonably believes the client does not have, the right to use or display or which infringes or txtNation reasonably believes infringes the intellectual property rights of any third party then txtNation may at its discretion block access to End-User Services making use of or who are capable of accessing such material. txtNation reserves the right to terminate the Agreement of any Client that txtNation reasonably considers to be a repeat infringer of third party intellectual property rights.

12. Taxes

Each party will be responsible for any and all taxes that are properly imposed on it or its respective business. If txtNation agrees to forward any payment to a relevant tax authority on the Client’s behalf or is required by law to do so, the Client will immediately reimburse in full txtNation the amount of such taxes and any fines, penalties and interest levied in connection with them, and agrees that txtNation may, if the same are not paid directly by the Client, deduct such sums from payments otherwise due from it to the Client.

13. Limitation of Liability

13.1

TXTNATION PROVIDES ITS SERVICES WITH ALL DUE CARE AND ATTENTION, ULIISING ALL ITS SKILL AND COMPETENCIES TO MAINTAIN ACCEPTABLE PERFORMANCE OF ITS SERVICES, BUT SAVE AS EXPRESSLY SET OUT IN THE AGREEMENT OR THESE TERMS AND CONDITIONS (AND WITHOUT SEEKING TO EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM TXTNATION’S NEGLIGENCE, WHICH IS UNLIMITED), TXTNATION GIVES NO FURTHER WARRANTY OR ASSURANCE AND HEREBY EXCLUDES ALL OTHER WARRANTIES CONDITIONS AND ASSURANCES TO THE FULLEST EXTENT PERMITTED BY LAW INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

13.2

Without limitation to the foregoing, and due to the complexity, variability and number of intermediaries/third parties involved with the provision of our Services, Internet connection, the development and speed of development, along with the spread of malicious code over the Internet, txtNation cannot give any guarantees as to the provision or constant provision of services, services being available by any particular time, or integrity of data stored or transmitted via our system or the Internet. txtNation will use all reasonable efforts to ensure that its systems are secured from any and all unauthorised access or the effects of any malicious code, but will not be held liable for any or all inadvertent disclosure of, corruption or erasure of any or all data transmitted, received or stored on its systems despite their efforts.

13.3

Without limitation to the foregoing, txtNation will not be liable to the Client or any of its customers or End-Users for any claims or damages which may be suffered by it or them, including, but not limited to, indirect or consequential loss or damage or other losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client’s Website (including as a result of hacker activity failure to keep passwords secret password trading or malicious code), inability to access the Internet, or inability to transmit or receive information, where any such matter is caused by, or results from, delays, non-delivery, or service interruptions caused by reasons beyond txtNation’s reasonable control or not forming part of the Services.

13.4

Without limitation to the foregoing, txtNation will not be responsible for the Client’s service not being accessible on the Internet due to circumstances not under txtNation’s direct control (such as individual Internet user’s own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations) and shall have no liability to the Client in respect of loss of revenues or other damages or losses arising therefrom.

13.5

txtNation shall not be liable for any of Client’s loss of profits, loss of business, loss of use or loss of data, interruption of business, nor for indirect, special, incidental or consequential damages of any kind whether under the Agreement or otherwise whether or not caused by txtNation’s fault or negligence or that of its agents or contractors and even if txtNation has been advised of the possibility of such loss. In no case will Client be liable for any representation or warranty made by txtNation, or any agent of txtNation, unless expressly set out in the Agreement or these Terms and Conditions.

13.6

In the event that txtNation is liable to the Client, its maximum aggregate liability to the Client for claims relating to any calendar year of provision of the Services shall not exceed the total of txtNation’s fees charged to the Client during that year. If the Client requires a higher level of liability protection, txtNation will be happy to discuss such requirements with the Client and may be able to agree to increase its potential liability subject to agreement of any higher fees chargeable in respect of such higher assumption of risk and/or txtNation being reimbursed the costs and expenses of any additional liability insurance that it may consider appropriate.

13.7

txtNation acknowledges that it is at all times acting as an independent contractor and, except as expressly set out in the Agreement or these Terms and Conditions or as may be necessary for the proper provision of the Services, txtNation shall not have any right or authority to make any representation or warranty on behalf of the Client, nor in any manner to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, nor act for, nor bind the Client in any respect.

13.8

The Client acknowledges:

  1. The Client and End Users may be subjected to email, instant messages, video, and other Content, which is objectionable to the Client or End User for which txtNation is not liable and over which it has not control or editorial responsibility;
  2. The Client is solely responsible for ensuring that the Content, and any transmission, storage or processing of the Content, does not violate the Intellectual Property Rights of third parties; and
  3. In all the circumstances, including without limitation the factors at clause 13.2 above and sub-clause (1) above, the exclusions and limitations of liability in this clause 13 and otherwise in these Terms and Conditions are fair and reasonable and if the Client required additional assurance it has had the opportunity to request the same from txtNation.

13.9

The Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to this Agreement or any agreement, arrangement, understanding, liability or obligation arising under or in connection with this Agreement, except that pursuant to section 1 of the Contracts (Rights of Third Parties) Act 1999 PhonepayPlus may directly enforce any relevant terms of this Agreement.

14. Indemnification

14.1

The Client agrees that it is solely responsible for its End-User Services, any associated website and all website Content, for its advertising and promotion, and that of anyone referring others to the Client’s End-User Services. The Client is also responsible for ensuring that it is the rightful owner or licensee for any copyrighted material, trademarks, or other such intellectual property items that appear on its website or offline material. The Client will take all necessary measures to preclude txtNation from being made a party to any lawsuit or claim regarding any Content or other materials provided by the Client or any one else on behalf of the Client and hereby agrees to indemnify txtNation and hold it harmless from any and all claims of whatever nature brought by anyone against it in respect of any breach of this provision by the Client.

14.2

The Client shall indemnify and keep fully and effectively indemnified txtNation and all members, officers, servants and agents of txtNation against all liabilities (including professional fees, reasonable administration and management costs and all other damages, expenses and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever arising directly or indirectly out of or in consequence of the use by the Client of the Services and/or the access or use by any End User of the associated Services of the Client (other than in respect of any errors in or omissions from any lawful use of the Services caused by a fault in the Services or act or omission of txtNation or its contractors or agents). txtNation shall, as soon as reasonably possible, give notice to the Client of any such liability, action, proceedings, claims or demands.

14.3

The Client hereby agrees to reimburse txtNation for any and all costs, damages and expenses associated with it being involved with any civil, criminal, regulatory or investigatory actions brought against it (other than for its breach of contract, negligence, or tortuous acts in respect of which judgment is obtained against it) in relation to any acts or omissions carried out in accordance with the Client’s instructions or authorized by the Client. The Client agrees that txtNation may deduct some or all of those costs damages and expenses from monies otherwise due to or held on account from the Client.

15. Force Majeure

15.1

Neither the Client nor txtNation shall be liable in respect of any breach of the Agreement due to any cause beyond its reasonable control including but not limited to an Act of God, inclement weather, flood or escape of water, lightning or fire, industrial action, lockouts, an act or omission of Government, any regulatory body or other competent authority, war, military operations, terrorism, riot, or any congestion or non-operation of the Networks and the public networks or any of them, or interruption or failure of any utility service, including but not limited to electric power, gas or water.

15.2

The Client agrees that its inability to use any of the Services by reason of failure of equipment or services not provided by txtNation shall not relieve it from its obligation to make payment of txtNation’s charges.

16. Relationship of Parties

16.1

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties other than as expressly provided by this Agreement. The Client will have no authority to make or accept any offers or representations for or on behalf of txtNation and shall not represent that it has such authority. The Client is not an agent of txtNation and txtNation expressly disclaims responsibility for any conduct by the Client in breach of the terms of the Agreement or these Terms and Conditions.

16.2

The Client agrees that txtNation expressly prohibits the Client from using txtNation’s trading name or registered service marks, trademarks or any other intellectual property anywhere on the Client’s Website or otherwise unless otherwise agreed by txtNation. Requests for non-standard copy must be in writing and include a copy of the layout of the web page and copy that will be used. txtNation may for any reason, and without having to assign a reason for this, refuse any use of its service marks, trademarks, trading name or any other such intellectual property.

16.3

The Client is aware that txtNation operates a Referral Program for qualifying affiliates. Approved referrers can earn a percentage of the revenues generated by their referral should that referral become a Client of txtNation. The maximum total payout to be received by the referrer is £5000 (GBP) unless the Client makes separate arrangements with txtNation at time of signing up to the Referral Program. Payouts of this will be made to the referrer alongside their regular payout schedule as long as their minimum monthly figure is achieved. The Referral Program is operated by txtNation at its sole discretion and the terms under which the Referral Program operates are subject to change without notice. Client should consult with txtNation’s business development team to ensure they have the most up to date information about the program.

17. Term

This agreement will continue for the term as set out in the Agreement unless and until terminated by either party under the provisions of the Agreement or these Terms and Conditions. Unless otherwise agreed and subject to earlier termination as provided in the Agreement or these Terms and Conditions, all contracts for txtNation Services shall run for a minimum period of 12 months from the date of contract.

18. Confidentiality and non-solicitation

18.1

Neither party shall without the prior consent of the other disclose, publish or make use for its own purposes any confidential information concerning the other which may come to its knowledge as a result of the discussions leading to the Agreement or anything done pursuant to it provided that this provision shall not apply to the disclosure or publication of any confidential information to any person having a legal right or duty to obtain or require such confidential information in or for the purpose of any legal proceedings or arbitration to which txtNation, the Networks or the Client may be a party or where such confidential information has been disclosed or published to the general public (other than as a result of a previous unauthorised disclosure) and for the avoidance of doubt this clause shall remain in full force and effect notwithstanding the termination of this Agreement howsoever caused.

18.2

Upon termination of the Agreement, the Client will promptly return any and all of txtNation’s property in its possession.

18.3

The Client agrees to treat as confidential and not disclose to any other person (save as necessary for the receipt of the Services and provided that the recipient is under an equal or stricter duty of confidence to the Client or otherwise as required by law and save to the extent that such information is already in the public domain through no fault of the Client) the terms of the Agreement and all details of the systems, processes, and procedures used by txtNation in the provision of its Services or other commercially sensitive information of txtNation which may come to the knowledge of the Client by reason of the Agreement.

18.4

txtNation’s employees upon employment enter into restrictive covenants to protect its confidential and trade secret information, including where appropriate following termination of their employment. The Client acknowledges that it may prejudice txtNation’s legitimate commercial interests if the Client were to engage any managers or technical employees or former managers or technical employees of txtNation and such engagement could cause or encourage the manager or employee to breach these restrictive covenants as agreed to in their employment contract with txtNation. The Client therefore agrees that it will not engage or enter into a contract of any kind for or in connection with the provision of any services in competition with any of the business of txtNation and its affiliated companies with any person who has at any time in the preceding 24 months been a manager or technical employee of txtNation or any company affiliated with it save with txtNation’s prior written approval (not to be unreasonably withheld or delayed). txtNation will on reasonable request confirm whether this provision applies in relation to any particular individual.

18.5

The Client further acknowledges and agrees that in order to provide its Services to its clients, txtNation has engaged the services of a number of established commercial relations with a number of third party service and goods providers which txtNation has a legitimate commercial interest in preserving and which the Client may come into contact with or become aware of by reason of the Agreement. The Client agrees that it shall not without the prior written consent of txtNation at any time during the term of the Agreement nor for a period of 12 months thereafter directly or indirectly solicit the services or custom of or form business relations with any clients/customers, suppliers, contractors or associates of txtNation in relation to any business or service which competes with or may interfere with any of the services then provided or offered by txtNation. txtNation shall not unreasonably withhold or delay the provision of its written consent.

18.6

Without prejudice to the generality of the foregoing txtNation reserves the right and the Client hereby irrevocably authorises txtNation to disclose to any person any information relating to the Services, any Content and the associated services of the Client in circumstances in which such disclosure is made for the purpose of assisting any civil or criminal investigations or proceedings or for the purpose of assisting or advising any regulatory body or other competent authority or as otherwise required by law.

19. Invalid or Unenforceable Provisions

19.1

If any provision of the Agreement or these Terms and Conditions is held to be void, voidable, invalid, illegal or otherwise unenforceable, in whole or in part, by a court of competent jurisdiction, then the remaining provisions or parts will nevertheless remain in full force and effect.

19.2

Each party agrees to negotiate in good faith with a view to agreeing new provisions or to replace any term so held unenforceable and to be bound by any mutually agreed to substitute provision.

20. Disputes

20.1

Each party agrees in the first instance to attempt to resolve any or all disputes arising out of the Agreement in a spirit of cooperation without formal proceedings.

20.2

Any dispute which cannot be so resolved (other than the collection of money due on Client unpaid fees) will be subject to arbitration under the provisions of the Arbitration Act 1996, the arbitrator to be nominated on the application of either party to the president for the time being of the Chartered Institute of Arbitrators. If the nominated arbitrator is at any time unwilling or unable to act, the person nominating him or her may appoint a replacement. Each party will cooperate fully and promptly with all requests for information and documents that may be received from the arbitrator.

20.3

The applicable law of the arbitration shall be English law and the place and language of the arbitration shall be in England and English respectively.

20.4

The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the Agreement or these Terms and Conditions.

20.5

The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was decided.

20.6

Judgment upon the arbitration award, if any, may be entered in any court having competent jurisdiction to do so.

20.7

The provisions of this clause 20 may only be modified with the agreement of both parties.

21. Entire Agreement

21.1

The Agreement and these Terms and Conditions constitute the entire Agreement and understanding of the parties relating to the subject matter of the Agreement and supersede all prior oral or written agreements, representations, understandings or arrangements between the parties relating to that subject matter.

21.2

The Client acknowledges that it is not relying on any agreement, understanding, arrangement, warranty, representation or term which is not set out in the Agreement and these Terms and Conditions and that all terms which would otherwise be implied into the Agreement by law, including without limitation as to skill and care or time for performance, are to the fullest extent permissible (and without limiting or excluding liability for death or personal injury arising from our negligence) hereby excluded.

21.3

Nothing in the Agreement or these Terms and Conditions shall operate to:

  1. exclude any provision implied into this Agreement by English law and which may not be excluded by English law;
  2. limit or exclude any liability, right or remedy to a greater extent than is permissible under English law.

21.4

Nothing in this clause shall limit or exclude any liability for fraud.

22. Insolvency of txtNation

The Client acknowledges that its account balance with txtNation represents an unsecured debt (subject to deductions as provided in these Terms and Conditions) of txtNation and is at risk in the event of txtNation’s insolvency and is not covered by the Financial Services Compensation Scheme or any other public or private insurance scheme.

23. Client information

23.1

“Client Information” is defined as any information the Client or someone on its behalf provides to txtNation or other users under the Agreement, for registration or payment process, or for the use of other features of the Service, including Content.

23.2

Except in so far as is required by UK data protection legislation, the Client is solely responsible for the accuracy, security and content of the Client Information. The Client authorises txtNation, directly or through third parties, to make any inquiries txtNation reasonably considers necessary to validate Client Information. This may include verifying the information against third-party databases. However, txtNation does not make any representation relating to any End User’s identity or the performance of or ability to perform their commercial transactions with and obligations to the Client.

23.3

The Client warrants to txtNation that all Client Information supplied by or on the Client’s behalf, including for payments and receipt of payments through the Service shall not:

  1. be false, inaccurate or misleading;
  2. be fraudulent or involve the sale of counterfeit or stolen items;
  3. consist in providing to the Client or any other person a cash advance from that person’s own credit account;
  4. breach txtNation’s Acceptable Use Policy;
  5. infringe any third party’s copyright, patent, trade mark, trade secret or other property rights or rights of publicity or privacy;
  6. breach any law, statute, contract or regulation (including, but not limited to, those governing financial services, consumer protection, unfair competition, antidiscrimination, or false advertising);
  7. be defamatory, threatening or harassing or liable to harass any person;
  8. be obscene or contain child pornography; or
  9. contain any viruses, Trojan horses, worms, cancelbots, “easter eggs” or other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, data or other personal information. If, as a result of the Client’s actions, instructions or Client Information there is any tampering, hacking, unauthorised modification or other corruption of the security or functionality of txtNation’s systems or services, or any attempt to do so, the Client account will be terminated and the Client will be subject to damages and other Penalties, including criminal prosecution where applicable.

24. Passwords

The Client must not reveal its account password(s) to anyone except its authorised employees as required for the purposes of receiving the Services, nor may it use anyone else’s password to access any of txtNation’s systems or Services. txtNation is not responsible for losses incurred by the Client including, without limitation, the use of its account by any person other than the Client or its authorised employees, arising as the result of misuse of or poor security in respect of its passwords.

25. Web Services

25.1

The Client acknowledges that our website contains robot exclusion headers.

25.2

The Client agrees that:

  1. it will not use any robot, spider, other automatic device, or manual process to monitor or copy txtNation’s web pages or the content contained therein without txtNation’s prior express written permission;
  2. it will not use any device, software or routine to interfere or attempt to interfere with the proper working of txtNation’s sites and/or Services;
  3. it will not copy, reproduce, communicate to the public, alter, modify, create derivative works, publicly display or frame any content (except for Client Information) from txtNation’s website without txtNation’s prior express written permission or that of the appropriate third party; and
  4. it will not take any action that imposes an unreasonable or disproportionately large load on txtNation’s infrastructure.

26. Privacy

txtNation views the protection of users’ privacy as a very important principle. txtNation understands clearly that protecting Client Information is its most important responsibility. txtNation stores and processes Client Information on computers located in the United States that are protected by physical as well as technological security devices. If the Client objects to Client Information being transferred or used as described in the privacy policy, please do not use txtNation’s Services.

In providing Client Information to txtNation, the Client confirms that it has received all necessary End User and other consents as required for the transmission of personal data out of the jurisdiction in which it may originate to the jurisdiction in which txtNation stores and processes Client Information.