| Please read and understand our terms prior to ordering. |
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In these terms the "Software as a Service" refers to are those you have asked or subsequently ask KODIME Ltd to provide by placing an order in the online store or by otherwise confirming a sales order, for example in the customer center, or by registering for a free trial version.
The Software as a Service is provided by KODIME Ltd, a company registered in England and Wales under Company Number 04431287 and whose main offices are at Unit 6, 50 Canbury Park Road, Kingston KT2 6LX, United Kingdom ("Kodime").
The Client is You, with Your company and contact details as entered when submitting an Online order or as provided otherwise when confirming a sales order.
Please note that these terms and our products are not intended for or offered to private individuals, and that a valid business address is required.
The Use of the Software as a Service, including for trial, automatically binds Client to abide by these terms or any that are validly substituted for them.
RECITALS:
(A) KODIME has developed and makes available Software solutions (the "Software") on a remotely hosted basis as a Software Service. Your Account gives you access to the Software, connections to mobile/carrier networks using shortcode and other numbers, payment gateways and other KODIME systems (the "Connectivity").
(B) Client wishes to open an Account to use and access the "Software as a Service" on the terms and conditions set out below, and to use the Account to enable its own services to Consumers in the UK or any other market as agreed. The Software as a Service may include storage and hosting of mobile data and media content, enabling of data transfer and transactions with consumers via mobile and oher networks, automatic recognition of consumer's mobile handsets and optimized delivery of mobile media content in the form of mobile sites, mobile internet pages, images, tones, other visuals, videos, games, downloads to consumer handsets and other devices, support for any such transactions towards the consumers, provision of storefronts on web, provisioning of mobile marketing capabilities including SMS sending and receiving, SMS to win, SMS to vote, SMS response, SMS to email and other such modules as defined in detail by the respective version of the Software.
1. GRANT OF LICENCE
1.1 Scope of Grant: Subject to the terms and conditions of this Agreement and in consideration of payment to KODIME by Client of the Fees (as defined below), KODIME grants to Client a non-exclusive, non-transferable licence (the "Licence") during the term of this Agreement to use the object code form of the Software hosted on KODIME's servers in accordance with any documentation or other instructions provided to Client by KODIME relating thereto for the purpose of Client's provision of a mobile or other digital service to Client's contacts, customers and consumers.
1.2 Restrictions: Client shall not:(a) sub-license, rent, lease or otherwise distribute or transmit the Software; (b) use the Software for any purpose other than as expressly provided herein; (c) use the Software for the benefit of any other person or entity, or permit any third party to use it; (d) attempt to customise, modify, enhance or otherwise alter the Software; or (e) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Software (except and only to the extent permitted under applicable law).
2. OWNERSHIP
2.1 Intellectual Property Rights: KODIME is the exclusive owner of the copyright and all other intellectual property rights in and to the Software and the related trademarks. Except as expressly set out herein, Client shall not acquire any right, title or interest in or to the Software pursuant to this Agreement. Except as expressly set out herein, neither party shall acquire any rights to Intellectual Property other as a result of the provisions of this Agreement.
2.2 Usage Monitoring: KODIME reserves the right to monitor Client's use of the Software from time to time at its absolute discretion.
2.3 Customer Data: All Customer data including, but not limited to, statistics, phone numbers and other information collected by Client with regards to each sale and messaging transaction, is Clients property and will not be used, exported, sold or for any reason whatsoever be distributed to third parties, without Client's express and written consent, with the exception in clause 2.4. below. Client will in its own agreements with its customers and consumers be bound to strict opt-in and privacy rules, and ensure that any messages sent to consumers using the Software comply with all standard privacy, NO SPAM, opt-in and opt-out rules as defined by applicable laws including guidelines issued by the MMA Mobile Marketing Association and any rules issued by mobile network operators from time to time. It is client's sole responsiblity to ensure his service complies with any applicable rule, and to identify which rule may be applicable to a specific service.
2.4 Mobile Operator Data Requirements: Local network operators from time to time issue new requirements that need to be implemented centrally across all of KODIME's Software. These can include removal of blocked numbers, export of transaction logs to verify correct billing, modification of opt-in and opt-out messages and processes and similar. KODIME will in those cases act upon instruction from the Mobile Operator.
3. FEES, TRIALS, PAYMENTS
3.1 Account Plan Fees: Client shall pay to KODIME the (i) monthly Licence fee, (ii) any additional network Connectivity fees, (iii) any Setup fees, (iv) any Production or Programming fees, and (v) any per Message fees in respect of the total number of outbound mobile SMS messages sent using the Software at the rates and billing details outlined in the online store or issued sales order in accordance with the remaining provisions of this clause 3.
3.2. Trial Versions: These terms apply fully to all Trial Versions, except that the first Billing Date is delayed for the Trial Period stated during Account registration, and Client can terminate the Account Plan at any time during the Trial Period, using the control panel or by sending an email to support@kodime.com. Trial versions may be limited in functionality. SMS credits and upgrades are unavailable for Trial Versions. One Trial per Client.
3.3 Increases: KODIME reserves the right to increase the Fees on giving to Client 60 days notice of such increase. The Client has the right to terminate the Account as per 4.1. below upon receiving such notification.
3.4 Payments: All payments are required in advance. By ordering KODIME's Software Client grants KODIME the right to debit Client's Credit Card, PayPal or bank account unless otherwise agreed and as provided during ordering for the purpose of regular payment. Invoices will be sent to Client via email, upon request invoices can be sent by post or fax, this will occur extra charges. It is Client's sole responsibility to ensure the correct invoicing email address is listed with KODIME.
3.5 If payment on an invoice is overdue for a period of more than one week then KODIME has the right to suspend access to the Software and Connectivity for Client and Client services. Any such suspension will remain temporary for a period of one week, during which time Client access may be activated at anytime, provided all outstanding invoices are paid up as well as a reconnection charge. After this period, any reconnection will occur full account setup charges. It is the customer's sole responsibility to make sure that all Fees invoiced are paid on time via the payment methods made available. Any Client account not settled with 21 days after due date will be passed to a debt recovery agency and occur an additional administration fee of £25. After 21 days of non-payment, any customer data, content, keywords and similar Client data will be deleted from KODIME's systems. Any remittance due under 3. will be retained to offset the amounts owed.
3.6 No Refunds. KODIME are unable to accept cancellation of any orders for the Software, nor offer any refund for such orders, once an Account has been opened. All such sales are final and a sale is confirmed immediately when Client opens Account. Trial Versions and other pre-sales help options are available to assist Client in decision making prior to purchase. SMS Credits purchased do not expire but require an active Account at all times.
3.7 Remittance: for services which generate revenues from consumers, KODIME will pay into Client's designated Credit Card, PayPal account or bank account or via cheque any Remittance due from the sale of Mobile Content and premium SMS services such as SMS Messages, Ringtones, Wallpapers as set out in the Revenue Distribution Schedule and Payout Rates Schedule.
3.8 Taxes: The Fees do not include taxes and/or duties which where applicable shall be payable by Client in addition to any other payments due under this Agreement.
3.9 The Client is not entitled to set off a credit against any amount owed to KODIME under these terms or under any other agreement prior to completion of this agreement.
4. TERM AND TERMINATION
4.1 For Services and Accounts purchased and paid for Online, the Service commences on the day the order is placed in the online store or the date stated on the sales order, and, unless terminated earlier in accordance with the provisions of this clause 4, continues for an initial period of one month, thereafter ongoing on a monthly basis, unless and until terminated by either party giving to the other party at least 30 days notice. For any Services purchased via dedicated Sales Order including via the Customer Center the terms as as stated on the respective Sales Order apply.
4.2 Termination: Either Party may terminate the Service provision at any time if: (a) either Party is in material breach of any term of these Terms; or (b) Party enters into insolvency or bankruptcy or any other equivalent proceedings. KODIME reserves the right to terminate any Client account, at any time, without reason. To terminate an active Account, use the control panel or send a email to support@kodime.com.
4.3 Consequences of Termination: On termination or expiry of these Terms howsoever caused, the Licence granted hereunder shall automatically cease. Client undertakes to cease immediately to promote its related Service, especially any marketing collateral promoting the use of a shortcode and/or long number provided as part of the Connectivity, and suspend all use of the Software and to return to KODIME any documentation provided to Client in relation to its use of the Software, or on the request of KODIME, to destroy such documentation and all copies thereof within Client's control or possession. In the event of termination without cause by KODIME, KODIME shall provide any Client-owned mobile content data and contact data which is stored on KODIME's servers at the date of termination, save for where privacy laws or rules and regulations issued by the mobile network operators prohibit the provision of this data to the Client.
4.4. Where a campaign or other mobile service provided through the Software and Connectivity remains active due to ongoing shortcode or longnumber marketing, as defined by an aggregate of 50 or more valid messages being received to the Client account via a Client keyword in the month after termination, Client is liable for further monthly License Fees. This shall continue until such month in which the treshold with regards to incoming messages is no longer exceeded.
5. OBLIGATIONS
5.1 Client shall:
(i) provide to KODIME any information required by KODIME to provide the Software as a Service in accordance with the terms of this Agreement;
(ii) ensure all individual Client user details are correct at any time, including Invoice and Payment details, and notify KODIME promptly on any user leaving Client company or for any other reason no longer be authorized to access and use the Software;
(iii) ensure that all required third party permissions with respect to the Mobile Content/ Service made available through the Software are obtained as necessary including copyright and other Intellectual Property Rights;
(iv) be solely responsible for any copyright associated fees, royalties, related costs, clearances and liabilities;
(v) confirm as required it owns or has adequate licences or ownership in and to the copyright and any so-called related rights in all content and materials supplied and delivered pursuant to this Agreement, and that the use and exploitation of such content and materials (whether by Client or consumers) in accordance with this Agreement shall not infringe the rights of any third party;
(vi) grant KODIME a worldwide non-exclusive royalty free right and license to use, display and reproduce Client trademarks and other owned Intellectual Property Rights as agreed solely in connection with our delivery of Software;
(vii) ensure Client's mobile service does not enable, promote, generate or contain any content including any messages that is defamatory, violates laws regarding harassment, discrimination, privacy or contempt, is intentionally false or misleading, constitutes an infringement of intellectual property rights or other copyright, is abusive or offensive, including obscenity, blasphemy and racial vilification;
(viii) explicitly confirm that for each SMS or other message it sends to Mobile Subscribers via the KODIME software, the client has the prior consent of the recipient of each message before the message is sent;
(ix) ensure all marketing and promotional materials promoting or endorsing use of the Client service enabled through the Software comply with all relevant and applicable rules and regulations, especially with regard to consumer advertising;
(x) provide copies of all marketing and promotional materials promoting or endorsing use of the Client service enabled through the Software by email to support@kodime.com;
(xi) ensure any relevant consumer terms & conditions are properly referenced and available to any consumer prior registering or using Client's Mobile Content/Services;
(xii) not use the Software to send consumers or other recipients messages inviting the mobile end user to call back a premium rate number;
(xiii) ensure that any Mobile Site operated and hosted using the Software complies with all relevant laws and obligations.
5.2. KODIME shall:
(i) provide the Software and related Services;
(ii) provide the Connectivity using shortcode and/or longnumbers;
(iii) notify Client 30 days prior to any changes with regard to shared shortcode numbers or longnumbers;
(iv) enable the Client to market to and transact with Consumers using KODIME's Software according to our Standard Consumer Terms where part of the ordered Software;
(v) secure Client campaign and service approval with mobile network operators upon Client request and subject to fees;
(vi) be permitted to disconnect any Consumer from the Service in the circumstances set out in the applicable Standard Consumer Terms;
5.3. Either Party shall:
(i) shall comply with the provisions of the UK Data Protection Act 1998 and any other relevant and applicable data protection regulations in relation to the use of the Software, including, without limitation, obtaining any necessary consents from data subjects for the use by Client of their personal data;
(ii) comply with all relevant legislation, regulations or industry codes of practice in relation to the use of the Software, especially with any rules issued by mobile network operators.
5.4 Client's Responsibilities:
(i) For the avoidance of any doubt, the parties agree that Client is entirely responsible for (i) any data gathered and all mobile content stored by Client and hosted on KODIME's servers; (ii) any messages sent or received using the Software and related connectivity; (iii) any charges occurred on Consumers phone bills, credit card or PayPal accounts as a result of using a Client service enabled through the Software; (iv) any content provided using the Software; (v) any use made by Client of data; (vi) any complaints or requests for refund received by Consumers arising from the Client service; (vii) any use whatsoever made by Client of the Software and Connectivity.
5.5. No Spam
KODIME operates a strict NO SPAM policy. A Client account reported or caught abusing the Software to send unsolicited messages of any means to consumers or other recipients that have not opted in to receive such information will be immediately terminated. The Client will not be issued a refund, and will no longer be granted access to any data in the terminated account. KODIME reserves the right to pursue a Client violating the NO SPAM policy for damages to the full extent available under law. In case any claim is brought against KODIME by a third party including but not limited to a mobile network operator, any regulatory, advertising or trading body or similar authority due to Client's breach of the undertakings laid down in these terms, Client shall indemnify and reimburse KODIME for all liabilities, costs, losses and damages arising from such claim.
6. CONFIDENTIALITY
6.1 Confidentiality Obligations: Each party may from time to time disclose (the "Disclosing Party") to the other party (the "Receiving Party") certain information of a confidential nature (which information may include, without limitation, details of recipients of SMS messages, information relating to the products and/or services of the Disclosing Party, and any other information designated at the time of disclosure to be confidential (the "Confidential Information"). The Receiving Party shall not: (a) disclose the Confidential Information of the Disclosing Party (except as expressly permitted in this Agreement or to the extent required by law); nor (b) use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement.
6.2 Announcements. Both parties agree not to disclose to any third party, other than their respective bankers or professional advisers on condition of confidentiality, the fact of or details of these Terms. The text of any press release or other communication to be published by or in the media concerning the matter of these Terms shall require the approval of each party. KODIME reserves the right to mention the Client's use of its Software in its own marketing materials, unless advised otherwise.
6.3. The Client accepts that KODIME will put its company, billing and user details on its internal company systems for the purpose of providing the Service, and will provide product information and other advertising materials unless Client informs KODIME in writing it does not wish to receive such information.
6.4. KODIME will not pass on any Client details and information to any third party without asking for prior written consent.
7. WARRANTY AND DISCLAIMER
7.1 Express Warranty: KODIME warrants to Client that the Software's performance will substantially conform with the applicable documentation provided by KODIME to Client.
7.2 KODIME warrants it own the Software and all related rights, and that by using the Software Client shall not be infringing any other party's rights.
7.3 Exclusion: KODIME's warranty at clause 7.1 is void if the failure of the Software is wholly or partly the result of abuse, misapplication, accident, faults in third party software and/or hardware, use with erroneous or incomplete data, or lack of availability of mobile networks for whatevere reason.
7.4 Warranty Disclaimer: Except as expressly stated in clause 7.1, the Software is provided "as is" without warranty of any kind, express or implied, including, without limitation, warranties of performance, satisfactory quality, fitness for a particular purpose and non-infringement. KODIME does not warrant that the Software or the functions contained in the Software will meet Client's requirements, operate without interruption or be error-free, or completely secure. The Software is used by Client at its own risk.
7.5 Disclaimer of actions caused by/under control of third parties: KODIME does not and cannot control the flow of data between and amongst Client's servers, or KODIME's network and other portions of the internet, or the Connectivity with mobile communications network service providers. Such flows depend on the performance of internet and other network services provided or controlled by third parties. The actions or inaction of such third parties may impair or disrupt Client's connections to the internet (or portions thereof) and Client's receipt or transmission of mobile communications. Although KODIME will use reasonable efforts to take actions it deems appropriate to avoid or remedy such events, KODIME cannot guarantee that such events will not occur, and accordingly KODIME disclaims any and all liability resulting from or related to such events.
8. LIMITATIONS OF LIABILITY
8.1 Limitation: To the fullest extent permitted by applicable law, in no event shall KODIME be liable for any special, incidental, indirect or consequential damages, damages for loss of profits, business interruption, loss of business information, claims by third parties (including, without limitation, Client's customers, rights owners, consumers who have subscribed to Client's Services provided in accordance with Client's Licence granted hereunder), or any other pecuniary loss arising out of the use of or inability to use the Software, even if KODIME has been advised of the possibility of such damages. In any event, the maximum liability of KODIME under or in connection with these Terms and howsoever arising, shall be limited to the amount of the Licence Fees paid by Client to KODIME under this Agreement.
8.2 Exclusions from Limitation: Nothing in these Terms attempts to exclude or limit KODIME's liability for death or personal injury caused by its negligence or liability in the tort of deceit.
9. GENERAL PROVISIONS
9.1 Assignment: These Terms are personal to Client and may not be assigned, transferred or sub-licensed by Client without the prior written consent of KODIME.
9.2 Notices: Any notices sent in accordance with this Agreement shall be in writing and shall be deemed to have been given when sent by first class post, five days after posting, when sent by fax, on receipt of a successful transmission slip provided a copy is sent by post within 24 hours of transmission by fax, and when sent by email, 24 hours after transmission, or on receipt of a successful delivery message, whichever is earlier. Notices shall be sent to the addresses set forth at the beginning of this Agreement, or such other addresses as either party may specify in writing.
9.3 Force Majeure: Neither party will be liable for any delay in performing or failure to perform its obligations (other than a payment obligation) under these Terms due to any cause outside its reasonable control. Such delay or failure will not constitute a breach of these Terms and the time for performance of the affected obligation will be extended by such period as is reasonable.
9.4 Severability: If any part of these Terms & Conditions is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of these Terms which will continue to be valid and enforceable to the fullest extent permitted by law.
9.5 Waiver: No delay or failure by either party to exercise any of its powers, rights or remedies under these Terms will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing. The remedies provided in these Terms are cumulative and not exclusive of any remedies provided by law.
9.6 Entire Agreement: These Terms constitute the entire agreement between the parties and supersedes all previous agreements and understandings between the parties in relation to the subject matter hereof. Any alterations or additions to these Terms must be made in writing signed by the duly authorized representatives of each of the parties.
9.7 Governing Law: The Terms will be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the Courts of England and Wales.
KODIME Ltd. |
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