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 TERMS & CONDITIONS

 A. STANDARD TERMS

 1. DEFINITIONS

 A) These terms shall together with any ‘Specific’ Terms in B. below and any other terms contained in any accepted Order or Contract comprise the whole of the terms (‘the Terms’) of the agreement (‘the Agreement’) between the person/s specified in the Order ( ‘You’ and ‘Your’ as the context admits) and NetSecrets Ltd, Unit 25 Stockwood Business Park, Stockwood, Nr Redditch B96 6SX UK Company registration No. 4439226 (‘NetSecrets’).

B) ‘Data’ means information, graphics, sound and any other form of information supplied as an integral part of any Service or Services.

 

C) ‘Order’ or ‘Contract’ means a signed and dated order received from You or if applicable a signed and dated written contract entered into by You accepting and resulting in the supply or provision by NetSecrets of any Service, Services or Product in accordance with these Terms.

D) ‘Product’ means any additional product (if any) specified or referred to in the Order or Contract and provided as part of or to complement the Service or Services.

E) ‘Service’, or ‘Services’ means any service or services provided by NetSecrets and/or used by you under the Terms.

2. SERVICE

A) The provision of a Service, Services, and/or Product following an Order or Contract shall constitute acceptance of that Order.

2. Any service or services or products must be paid for in full prior to being supplied or by any agreed stages or dates to ensure continued provision.

2. Unless stipulated in a specific written quotation or otherwise agreed in writing by NetSecrets in an authorised order form signed by one of its agents or employees the price payable for the provision of any Service, Services, and/or Product relevant to any Order or Contract will be the quoted list price of NetSecrets at the time of the acceptance of any such Order or the date of any such Contract with You(in each case exclusive of VAT).

D) An Order which has been accepted by NetSecrets and signed by You or Your representative may:

i) (If You are an individual acting outside of the course of any business) be cancelled by You within 7 working days of any Service or Services being supplied to You and/or of any Product being received by You.

ii) (If You are an individual acting within the course and scope of any business) be cancelled by You or Your representative within 7 working days of the signing of an Order provided You indemnify NetSecrets in full against any loss, costs (including the cost of any goods ordered for You by NetSecrets on Your behalf as part of any Product or Service), damages, charges and expenses directly or indirectly incurred by NetSecrets as a result of such cancellation.

E) NetSecrets reserves the right to suspend any or all services until such time as any payment due has been made in full. Non-payment of an overdue account may result in the suspension of all services indefinitely and loss of related credit facilities.

F) All Services and any Product supplied by NetSecrets (including if applicable) domain names which may still be registered in the name of a third party but which belong to NetSecrets shall remain the property of NetSecrets until full and final payment has been made to NetSecrets.

3. USE OF SERVICE

A) Under no circumstances will the storage and transmission of pornographic materials in any form whatsoever be allowed through or on NetSecrets’ servers and data transmission cables. The definition of the term pornographic materials is purely at the discretion of the Directors of NetSecrets and their decision in such matters shall be full and final.

B) You accept sole liability for any information or material including but not restricted to, graphics, data, photographic material, sound and any other form of information supplied to NetSecrets which is subject to copyright or is judged to be of an unlawful nature or is judged to be in violation of UK or international law or regulation.

C) You acknowledge that any given Service or Services and/or Product may only be used for lawful purposes and that any information or Data including but not restricted to any graphic, image, photograph or text which is in violation of any UK law or regulation including but not restricted to material which is obscene, indecent, or adjudged by NetSecrets to be unlawful in the UK and/or abroad, threatening, damaging (including by virtue of the transfer of any computer virus), in breach of copyright or trade secret, is prohibited whether or not You were aware of the content or material and/or the laws pertaining to the material.

D) If the Service or Services to be provided consists of hosting or video streaming then NetSecrets Ltd reserve the right to limit the transfer of Data if such transfer of data are deemed to cause high traffic demands by way of download of files whether through the size of file and/or the number of users of a particular service. You will have the right in the event of any such Data transfer limit being imposed to terminate this Agreement and an appropriate refund will be made which will be a percentage of the initial invoice minus any related administration charges (in each case determined by NetSecrets).

E) NetSecrets will be entitled to suspend and/or terminate any Service or Services if they deem its or their use by you to be illegal and/or an infringement of the rights of any other parties under UK and International laws or regulations whether due to or arising from the transmission of any information or data by You or otherwise and including but not restricted to material transmitted which is obscene, indecent, libellous or subject to copyright and whether or not You were aware of the content or the laws or regulations pertaining to it both in the UK and Internationally.

F) You acknowledge and accept sole liability for and You agree to pay for and indemnify NetSecrets Ltd against any loss, costs, damages or other claims arising from or attributable to any such illegal or improper use by you of any Service or Services as is mentioned in any of items 3A) to 3E) above.

4. NETSECRETS RESPONSIBILITY

You acknowledge and accept that NetSecrets does not:

A) check, scan or verify content of information and data transmitted.

B) make judgments with regard to the appropriateness of material for transmission.

C) guarantee the nature, content, truth, accuracy or reliability of any such material.

D) warrant or guarantee the security or confidentiality of any such information or data.

E) offer any opinion or express any view on the nature or content of any such information or data.

5. LIMIT ON LIABILITY

Any liability on the part of NetSecrets arising from any breach if its obligations under these Terms, including but not restricted to damages caused or allegedly caused by any failure to provide the agreed Service or Services and/or Products, error, omission, interruption of service and or delay of transmission of service, loss of electronically stored information due to, theft, fire, destruction, unauthorised access to electronic information stored on NetSecrets equipment or third party providers utilised by NetSecrets or by any other means and to the extent (if at all ) recoverable under these Terms shall be restricted to a maximum of the amount paid or payable by You for the Service or Services in any 12 month period under this agreement.

6. PERSONAL DATA

A) You agree that NetSecrets may hold your names and other relevant information in a computerised database. You agree that such data may be processed and may, in certain circumstances, be supplied to and processed by our suppliers, to enable the provision and maintenance of the Service and/or Services and/or Products and any relevant equipment.

B) You acknowledge and accept that we may, from time to time, be required under regulations and/or legislation to co-operate with and/or disclose Customer data to, government or other bodies and/or authorities.

7. TERMINATION

Without prejudice to any rights that have accrued under this agreement or any of its other rights or remedies, NetSecrets may terminate this agreement either with or without notice as NetSecrets sees fit without liability to You if:

You fail to pay any amount due under this agreement on the due date for payment (an essential rm); o

You commit a material breach of any other material term of this agreement and (if such breach is remediable) fail to remedy that breach within a period of 7 days after being notified to do so (an essential term) ; or

You repeatedly breach any of the terms of this agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to discharge your obligations under or give effect to the terms of this agreement; or

Any event occurs, or any proceeding is taken, with respect to You in any jurisdiction to which you are subject as a result of which:

You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of either section 123 or section 268 of the Insolvency Act 1986 as appropriate or (being a partnership) have any partner to whom any of the foregoing apply

You are the the subject of a winding up or bankruptcy petition as appropriate

One or more of Your creditors or encumbrancers 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 Your assets and such attachment or process is not discharged within 14 days; or

(if you are acting within the course and scope of your business) you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business; or

(being an individual), You die or, by reason of illness or incapacity (whether mental or physical), are or become incapable of managing your own affairs or are or become a patient under any mental health legislation.

8. GENERAL

A) No terms, conditions, reservations or variations whether stipulated by You or arising in the course of dealing shall annul, vary or add to any of these conditions unless expressly agreed to in writing by NetSecrets.

B) This Agreement and these Terms represent the entire agreement and understanding between You and NetSecrets with regard to the supply of the Service and/or Services or of any Product to you by NetSecrets, to the exclusion of all prior agreements, arrangements and understandings.

C) You acknowledge and agree that:

i) any other term which might be implied or incorporated into the Agreement, by statute, at
common law or otherwise, is excluded, to the fullest extent permitted by law.

ii) the Company shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control.

iii) time shall not be of the essence in respect of any of the Company’s obligations under this agreement.

iv) in entering into the Agreement you have not relied upon any oral or written representation, statement or understanding (whether negligently or innocently made) by any of our employees, agents, sub-contractors or representatives other than as expressly set out in the Agreement.

iv) You will have no remedy in respect of any untrue representation innocently or negligently made by NetSecrets or any of its employees, agents, sub-contractors or representatives prior to entering into the Agreement upon which you may claim to have relied in entering into the Agreement whether such representation was made orally or in writing.

v) the only remedy available to you for a breach by NetSecrets of these Agreement shall be for breach of contract under the terms of the Agreement or for fraudulent misrepresentation.

D) The Agreement shall be governed by and construed in accordance with the laws of England and Wales and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales.

E) In the event that this Agreement is translated into any other language, the English language version shall prevail.

F) If any provision, clause or sub-clause of the Agreement or the application of it to any person shall, for any reason, be held or adjudged by any competent authority to be void, voidable, illegal, invalid or otherwise unenforceable, but would be valid and/or enforceable if any part of such provision, clause or sub-clause were deleted or modified, then that provision, clause or sub-clause shall apply with such deletion or modification as may be necessary to make it valid and/or enforceable and such judgement shall not affect the remainder of the Agreement which shall continue in full force and effect.

G) In the event of any inconsistency between the Standard and Specific Terms then the Standard Terms shall prevail

H) References to:

i) the singular include the plural and vice versa.

ii) one gender includes all other genders and vice versa.

I) A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or
remedy of any third party which exists or is available apart from that Act.

J) Neither You nor NetSecrets may commence any court proceedings or arbitration in relation to any dispute arising out of any alleged breach of this agreement) until whichever of us alleges a breach has occurred has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by any delay in this respect or (if NetSecrets has the right to issue) the only alleged breach involves the non-payment of monies properly owing to NetSecrets but not paid by You.

8. NOTICES

A) You agree to keep the contact details which you have provided to us up to date. Any notice or other information to be served by us on you in accordance with this agreement will be validly served if in writing and sent either by first class post or email to your last known postal or email address.

B) Any notice sent by first class post will be deemed served two days after posting. Any notice sent by email will be deemed served on the day that it is sent if evidenced by a valid delivery receipt.

C) Any notice to be served on us must be in writing and sent either by pre-paid first class post to our registered office or to such other address as may be specified by us to you for this purpose from time to time. Any notice sent in accordance with this sub-clause will only be deemed served if and when you have received a written acknowledgement from us.

Revision History:

Rev 4 – 30/06/2008

B. SPECIFIC TERMS - MSISDN/Virtual Reply Number (‘VRN’): Subscription

1. Annual Contract

This includes:

1. Access to an allocated 11 digit dedicated UK virtual reply number (VRN). ⁱ

2. This allows a user to receive inbound SMS text messages to their FASTSMS account.

3. Additional features included in the annual rental fee include forwarding of all inbound text messages to multiple email addresses and/or a URL. FASTSMS cannot guarantee the time in which the messages will be forwarded as they pass through systems that we have no control over. ⁱⁱ

4. An additional feature not included in the annual rental but available at additional cost (See ‘Costs’ below), is the forwarding of the inbound messages to a mobile phone handset.ⁱⁱⁱ

2. Expiry of Annual Contract and Loss of FASTSMS Service:

1. A FASTSMS VRN is rented on an annual basis with a minimum contract term of 1 year.

2. Please note that VRNs are a subscription-based service that needs to be renewed and paid for by you 14 days prior to the expiry date of your annual contract (‘expiry date’).

3. FASTSMS will use its best endeavours to remind you of the expiry date of your annual contract. However ultimately responsibility rests with you to diarise and not miss the expiry date.

4. If the VRN is not renewed this will result in its permanent removal from your FASTSMS account. All your inbound text messages and related data will then be lost. FASTSMS can accept no responsibility for the loss of any such messages or any related data.

5. In addition even if you re-subscribe after the expiry date there is no guarantee that the same VRN will be available. The network could take the number back or we shall be entitled to and may re-allocate it to another client. ^iv

6. It is your sole responsibility to update FASTSMS of any changes in your contact details.

7. In view of their importance your responsibilities to notify us on a timely basis of the above are essential terms of your contract with us.

3. Withdrawal of service:

1. FASTSMS reserves the right to replace a client’s VRN if for example, the network operator demands the return of a number or if the quality of the VRN service is not, in the opinion of FASTSMS, at a satisfactory level. A replacement VRN will always be provided.

2. FASTSMS can accept no responsibility for any costs, inconvenience, loss or damage of any kind which you may experience as a result of the changing of a VRN. ^vi

3. If your VRN is not renewed in time (as above), FASTSMS will remove the VRN from your account within 24 hours of the expiry date.

4. Costs:

1. Annual subscription cost for a dedicated UK Virtual Reply Number: £99 + VAT per annum

2. The annual subscription cost is subject to change however it will only change when you next renew your subscription. You will be alerted of any price chances 1 month prior to your next renewal date.

3. The cost of sending a text to your virtual reply number for the sender will be the sender’s standard network rate. However, if the sender’s network is T-mobile or 3 it is likely to cost more as these networks do not recognise VRN’s as UK mobiles so charge an international text message fee.

4. The cost of transferring on VRN messages to a mobile phone will be charged at our current rates as specified in our Price List or on our website.

5. General

1. In the event that any of the above service details and terms alter all changes will be recorded on your Order/Renewal Form.

2. The explanatory footnotes below form part of and relate to these terms