A. ZINADOO provides certain services by which a customer can send messages to, or solicit messages to be sent by, end-users using third parties' telecommunications networks.
B. The Parties have agreed to be bound by this Agreement for the provision and procurement of such services by ZINADOO for the Customer.
1. Provision of Services by ZINADOO
1.1 Following acceptance of the Customer's order ZINADOO will use all reasonable efforts to provide, or procure the provision of, the Services therein with reasonable skill and care and subject to the provisions of this Agreement.
1.2 ZINADOO may at its sole discretion alter or improve the Services from time to time. ZINADOO shall not be liable to the Customer for any costs or expenses it incurs directly or indirectly as a result of the implementation of any change to the Services.
1.3 ZINADOO may suspend the Services if deemed necessary (e.g. for maintenance work or emergency repairs) and will give the Customer notice where it is reasonably practicable.
1.4 ZINADOO may in its absolute discretion:
(a) bar access to the Systems or part thereof and/or cease to convey any Short Message(s) provided by the Customer and/or withhold payments due to the Customer at any time if:
in which cases, ZINADOO will give the Customer appropriate notice as soon as is reasonably practicable.
(b) temporarily suspend access to the Systems, if at any time the number of Short Messages delivered to the Systems exceeds the Forecasts, or causes, or is likely to cause, congestion to the Systems or part thereof, and ZINADOO will give the Customer notice of such temporary suspension as soon as is reasonably practicable.
1.5 ZINADOO will not be liable to the Customer for any consequence of ZINADOO's actions under Clause 1.4, provided that ZINADOO's rights to bar or suspend access, to cease to convey Short Messages, or withhold payment may only be exercised for such period as is reasonable in all the circumstances.
1.6 ZINADOO has the right to disconnect or bar access to, or reassign a Customer or the Services to, any number during any period of breach or suspected breach of this Agreement by the Customer including, without limitation, a failure to comply with any minimum volume requirement for Services associated with a number set by ZINADOO or any Network Operator.
1.7 The allocation and/or use of any number will be subject to all applicable regulations, directions or instructions issued or given by a Regulator, or a Service Provider, including the withdrawal, termination or suspension thereof.
1.8 Where the use of any number or short code is granted by the Customer to a third party, the Customer agrees to impose conditions of use on such party which are no less onerous than the terms of this Agreement and for the avoidance of doubt, the Customer will be liable to and hold harmless ZINADOO for any misuse of the numbers or short code in breach of such conditions or any breach of the Codes by third parties to whom the Customer grants the use of the numbers or short codes, or sub-contracts the Services.
2.1 The Customer will not use the Services or permit the Services to be used:
2.2 The Customer will at all times throughout the duration of this Agreement:
2.3 The Customer will provide ZINADOO, any Service Provider, competent authority or Regulator with any information or documentation relating to the Customer's use of the Services which it may reasonably require upon request.
2.4 The Customer is responsible for ensuring that any and all information relating to its end-users provided to ZINADOO is accurate and complete.
2.5 The Customer will be solely responsible for all advertising and promotion of the Services to its end-users including compliance with the Codes. The Customer is also responsible for ensuring that in using the Services, any services it is to provide to its end-users are suitable for the end-user's intended purposes.
2.6 The Customer will at all times during this Agreement ensure that prior to requesting or using the Services its own end-users have:
2.7 The Customer will at all times:
2.8 At ZINADOO's discretion, ZINADOO may cease to convey, and if requested by ZINADOO the Customer will promptly cease to transmit, any Short Message which ZINADOO reasonably considers is, will be, or may have been, in breach of this Agreement.
2.9 The Customer will use reasonable endeavours to ensure that no person other than the Customer gains access at any time to the Systems and hereby indemnifies ZINADOO for any loss incurred as a result of a breach of this Clause 2.9.
2.10 The Customer will not convey Short Messages to any end-user, the number and/or frequency of which is excessive in the reasonable opinion of ZINADOO or a Service Provider.
2.11 The Customer will promptly give ZINADOO advance notice of any change in purpose for which it intends to use the Services and comply with the process set out in Clause 1.1 unless otherwise agreed by ZINADOO.
2.12 The Customer acknowledges and agrees that conveyance of Short Messages may depend on factors beyond ZINADOO's control including, but not limited to, factors affecting the operation of the Systems (which may include geographical or topographical shortcomings in a Service Provider's network), and that conveyance to a Service Provider's network may not result in delivery to the Customer's end-user or that an end-user may not be able to send or receive Short Messages depending on their Service Provider's terms and conditions. ZINADOO is not obliged to provide any of the Services where such or similar factors prevent it.
2.13 The Customer will not acquire any title or other proprietary right to any intellectual property including but not limited to any patents, know-how, registered or unregistered trademarks, design right or copyright or other intellectual property right, in respect of the Services.
2.14 The Customer agrees:
2.15 The Customer warrants that it has all rights, consents and necessary permissions to use its short code and it shall indemnify and hold harmless ZINADOO against any damages, losses, expenses or claims made by third parties arising out of any failure or omission by the Customer in obtaining any such rights, consents or permissions. If ZINADOO agrees, it shall provision for the use of the short code on the Network on a case by case basis. ZINADOO does not guarantee that it shall provision for further short code for the Customer. If ZINADOO permits the Customer more than one Authorised Source Number after the date of this Agreement the Customer shall be required to complete a standard addendum form and the provisions of this Agreement shall apply mutatis mutandis to such additional numbers.
2.16 The Customer shall notify ZINADOO one week in advance if it intends to send a broadcast containing more than 1000 messages or if there is any change to the details provided in Schedule 1. The Customer will be liable for any loss or damages arising from the Customers failure to provide such notice. ZINADOO may restrict volume of messages at any time.
2.17 The Customer shall be be solely responsible to ZINADOO for its use of the ZINADOO Service and for the content of Data and Short Messages sent to End users (including Client messages) and shall indemnify and hold harmless ZINADOO against any damages, losses, costs, expenses or claims made by third parties arising out of any such use or content. In particular, but without limitation, the Customer shall be solely responsible for obtaining authorisation of relevant third parties to use of any content and for paying all relevant royalties and other licence fees in respect of same. The Customer shall indemnify and hold harmless ZINADOO against any damages, losses, costs, expenses or claims made by any third party arising from the sending of any content via Short Message (including Client messages);
2.18 The Customer shall use best endeavours to ensure that it and its Clients comply in every respect with all applicable laws including all relevant gaming and lotteries, e-commerce, data protection and distance selling laws (including maintenance of all valid and up-to date registrations or notifications required by law) and all other legislation relating in any way to Short Messages In particular, and without limitation of the foregoing, the Customer shall not knowingly or recklessly engage in the sending of unsolicited Data or Unsolicited Messages to third parties for the purposes of direct marketing or otherwise. The Customer shall be responsible for seeking the authorisation or consent of End users to the receipt of Non-Client Messages and shall ensure that it or its Clients seek the authorisation or consent of End users to the receipt of Client Messages. The Customer shall satisfy ZINADOO of its technical ability and processes in this regard and shall satisfy ZINADOO that End users have in fact Requested to receive Short Messages. The Customer shall indemnify and hold harmless ZINADOO against any damages, losses, costs, expenses or claims made by third parties arising out of any failure or omission by the Customer or its Clients to comply with any law, including without limitation, any breach of applicable gaming and lotteries, e-commerce, data protection and distance selling legislation;
2.19 The Customer shall at all times throughout the Term be approved in writing by Regtel to provide premium rated messaging services in Ireland (including the services offered by its Clients) and shall upon ZINADOO's request produce evidence of such written approval.
2.20 The Customer shall not use the ZINADOO Service and shall use its best endeavours to ensure its Clients and other persons do not use the ZINADOO Service:-
(a) to send or cause to be sent to End users junk messages, spam or any Short Messages containing content which those customers have not specifically and expressly Requested via SMS in a manner which is verifiable;
(b) to send or cause to be sent any Short Message which may infringe the rights (including but not limited to the Intellectual Property Rights) of any third party or render ZINADOO liable to the payment of damages to any third party;
(c) to send or cause to be sent any Short Message from numbers other than the long number or short code;
(d) to send or cause to be sent a Short Message that promotes or offers for sale any goods or services which cannot be delivered via Short Message (unless otherwise agreed in advance with ZINADOO in writing);
(e) for any improper, indecent, obscene, unlawful, unauthorised or fraudulent purpose or contrary to any industry or Regtel code of practice or in any way which may bring ZINADOO or its services into disrepute or otherwise be detrimental to the commercial interests of ZINADOO. The Customer shall not state or imply any approval by ZINADOO of any Short Message nor refer to ZINADOO in any way without the prior written consent of ZINADOO;
(f) in any way which may cause the operation of a Network or the operation or quality of the ZINADOO Service to be jeopardised, impaired or interrupted;
(g) to send or cause to be sent any Data or Short Message which contains a virus, trojan horse, worm, time bomb, cancelbot, or any other harmful or deleterious content;
(h) to disguise the origin of any Data or Short Message or impersonate any other person or entity;
(i) in any way which will or may place ZINADOO in breach of any licences, authorisations, provisions or law and/or any directions applicable to ZINADOO and shall co-operate fully with ZINADOO to enable ZINADOO to comply with all of the same;
(j) to send Short Message of a kind not referred to in Schedule 1. There may be no variation of the kinds of Short Messages that may be sent without the prior written consent of ZINADOO;
(k) to send or cause to be sent a Short Message to an End user at a price point other than that which the End user has knowingly agreed to in advance of the message being sent.
2.21 The Customer shall:-
(a) cease and procure that its Clients cease to send Data and/or Short Messages to any SMS Recipient who so requests. ZINADOO may also from time to time advise the Customer not to send or attempt to send Data and/or Short Messages to certain End users or to certain End user numbers and the Customer shall comply with any such instruction. The Customer will satisfy ZINADOO of its technical ability and processes in this regard;
(b) keep accurate records at all times of which End users avail of the services offered by the Customer or its Clients (broken down on a per-service basis). The Customer shall also keep records of all Requests by End users to receive Short Messages and to un-subscribe therefrom, the Customer shall, on the occasion of customer queries or disputes received by ZINADOO, make these records available to ZINADOO upon its request;
(c) provide ZINADOO promptly with all necessary support, information and co-operation that may reasonably be required to enable ZINADOO to carry out its obligations to the Customer hereunder;
(d) not use a End user number for any purpose whatsoever other than to provide the End user (to whom that number has been allocated) with the Short Message it has Requested pursuant to this Agreement;
(e) not to harvest or collect information about End users or sell or licence or disclose any list of End user numbers to third parties for any purpose whatsoever without the express consent of those customers;
(f) not sell, assign, transfer or otherwise permit an Authorised Source Number to be used by any third party whatsoever without the prior written consent of ZINADOO;
(g) notify ZINADOO immediately of any unauthorised use of the ZINADOO Service or any breach of security or any claim or legal proceedings against the Customer or its Clients in relation to the ZINADOO Service;
(h) be solely responsible for advertising and marketing its services and shall do so in accordance with all applicable advertising and marketing codes of practice and laws. All advertising and promotional materials shall make reference to those matters referred to in Schedule 1.
3.1 The Customer, not ZINADOO, will pay VAT on all Charges at the current prevailing rate.
3.2 ZINADOO reserves the right by giving one (1) month notice to the Customer to increase the Charges (including but not limited to reflect increases in national and international interconnection costs).
3.3 ZINADOO reserves the right to distribute mobile advertisements throughout the *.zinadoo.mobi mobile websites. ZINADOO will endeavour to keep advertisements contextual however there is not guarantee. All revenues from advertisements on the mobile websites will be the property of ZINADOO.
4.1 This Agreement will be deemed to have commenced on the Commencement Date and will continue (subject to the termination provisions set out below) until terminated by either party.
4.2 Either party will have the right to terminate this Agreement immediately without notice if:
4.3 ZINADOO may terminate this Agreement forthwith in the event that any relevant regulation or legislation is implemented or modified such that it is no longer commercially viable or possible for ZINADOO to provide the Services or the Customer ceases to be fully approved in writing by Regtel to provide premium rated messaging services in Ireland or there is at any time a material change in the management or ownership of the Customer and either: -
(a) ZINADOO reasonably regards such change as affecting or being likely to have an effect on the Customer's ability to carry out its obligations under this Agreement; or
(b) the change is such that ZINADOO believes that ZINADOO's position under the Agreement may be compromised for example if the Customer became managed by a competitor of ZINADOO.
4.4 Termination of this Agreement for any reason is without prejudice to any rights that either party may have against the other under the terms of this Agreement which have accrued up to the date of termination and those provisions of this Agreement capable of surviving termination will continue in full force and effect.
4.5 On termination of this Agreement:
5.1 The parties will at all times keep confidential all information acquired as a consequence of this Agreement in respect of the Customer and its business, ZINADOO, any Service Provider or the Systems, except for information which they are bound to disclose under compulsion of law (or where requested by regulatory agencies), or to their professional advisers (where reasonably necessary for the performance of their professional services).
5.2 Notwithstanding Clause 5.1, ZINADOO reserves the right to disclose to any person any information relating to the Services and the associated services of the Customer where such disclosure is made for the purpose of assisting any civil or criminal investigations or proceedings or as otherwise required by law or regulation.
5.3 Each party will comply with any data protection, privacy or similar laws including, but not limited to, the Data Protection Act 1988 as amended, that apply in relation to any personal data, including the Data List processed in connection with this Agreement ('Protected Data').
5.4 Each party will indemnify the other and keep the other indemnified against all claims and proceedings made or brought by or on behalf of any person by reason of any wrongful disclosure or use of Protected Data by that Party.
5.5 For the avoidance of doubt, ZINADOO will treat the Data List of the Customer as confidential and will neither disclose it to any third party nor use or copy any part of it except as expressly authorised by Customer under this Agreement or as otherwise agreed.
6.1 Nothing in this Agreement will limit ZINADOO's or the Customer's liability for death or personal injury caused by their negligence or that of their employees or agents.
6.2 Neither party will in any circumstances be liable in contract, tort or otherwise for any loss of profit (whether direct or indirect) or for any indirect, consequential or economic loss including, but not limited to, loss of business, anticipated savings or goodwill or claims by third parties, whether foreseeable or not
6.3 ZINADOO does not make any representation or warranty as to the quality, availability or timeliness of the ZINADOO Service or the accuracy, correctness, suitability or completeness of any Data or Short Message sent via the ZINADOO Service. In particular ZINADOO does not make any representation or warranty that Data or Short Messages shall be transmitted within any particular period of time or at all; delays or transmission failures may occur and the Customer accepts that ZINADOO shall not be liable for such delays or failures.
6.4 Each party acknowledges that in entering into this Agreement it does not do so on the basis of, or rely on, any representation, warranty or other provision except as expressly provided in this Agreement, and accordingly, all conditions, warranties or other terms implied by statute, common law or implication are hereby excluded to the fullest extent permitted by law. Without prejudice to the generality of the foregoing, ZINADOO does not warrant that the ZINADOO Service will be timely, secure, uninterrupted or error free or that any particular volume of Data or Short Messages can or will be sent or that the ZINADOO Service will meet the requirements of the Customer or its Clients.
6.5 The Customer warrants that it is (a) the sole owner of all rights in the Data List, or (b) that it has obtained all necessary rights and permissions, consents and waivers from, and made all associated payment to, all relevant third parties to enable it, ZINADOO and its agents or subcontractors to use the Data List for the purpose of the this Agreement.
6.6 The Customer warrants that nothing contained in a Short Message conveyed by, or on behalf of, the Customer or its end-users (a) will infringe the rights of any third party, including, without limitation, copyright, right of privacy and performing rights, or (b) which is of a defamatory, illegal, offensive, abusive, obscene or menacing character (c) the accessing, holding, transmission or supply of which is, or would be, a criminal offence or otherwise unlawful in any relevant jurisdiction.
6.7 Neither party will be liable for any delay or non-performance of this Agreement to the extent that such delay or non-performance is due to any event which is outside its reasonable control including, but not limited to, fire, lightening, flood, exceptionally severe weather, explosion, war, civil disorder, industrial disputes, fuel or power supply failures or shortages, acts or omissions of other persons (including any third party or Service Provider) acts of government or other public or regulatory authorities, or congestion or non-operation of the Systems.
6.8 The Customer shall indemnify and keep ZINADOO fully indemnified against all liabilities, costs, and expenses in relation to the Customer's obligations under clauses 6.5 and 6.6 to the extent that those liabilities, costs, and expenses are attributable to the acts or omissions of the Customer, its officers, employees, agents or subcontractors or Clients. The remedies contained in this clause are without prejudice, and in addition, to any remedies or other rights for the benefit of ZINADOO otherwise provided by law or under this Agreement
6.9 Neither party shall exclude or limit liability to the other party for death or personal injury due to its Default. Neither party shall be liable to the other for the following losses or damage howsoever caused and even if foreseeable:-
(a) special, indirect, incidental or consequential losses;
(b)economic loss which shall include loss of data, profits, revenue, business, anticipated savings, contracts or goodwill;
(c) losses or damage arising from the other party's Default;
(d) losses or damage arising from any delay or failure in the conveyance or termination of Data or Short Messages or any suspension of the ZINADOO Service.
6.10 For the avoidance of doubt: -
(a) ZINADOO shall not be liable to the Customer for any losses or damages arising out of any claim made against the Customer by any other person (including but not limited to its Clients and end users) in respect of the ZINADOO Service; and
(b) nothing in this Clause 6 shall limit or exclude the Customer's liability for Error Messages, Unsolicited Messages or failures to respond to requests.
The Customer shall effect and maintain suitable and adequate liability insurance to cover all risks that may arise pursuant to this Agreement and shall produce to ZINADOO on demand, a copy of the policy of insurance together with a receipt for the current premium.
7.1 Neither party will delegate, sub-contract or assign either in whole or in part any of its rights or obligations hereunder without the other party's written consent, with the exception of ZINADOO which may delegate, sub-contract or assign any or all of its rights or obligations to an Associated Company.
7.2 This Agreement constitutes the entire agreement between the parties and supersedes all promises, representation, warranties or other statements whether written or oral of any document given by one party to the other concerning such subject matter provided that nothing in this Clause will operate to exclude either party's liability for any fraudulent misstatement or fraudulent concealment.
7.3 ZINADOO may vary the content of the Schedules from time to time. Otherwise, no amendment to this Agreement will be valid unless agreed in writing by the parties, except as provided in this Agreement.
8.1 Any notices or other document to be given under this Agreement will be given in writing to the addressee at its last known address and will be deemed to have been received within 48 hours of posting or 24 hours if sent by electronic mail to the correct electronic mail number of the addressee.
8.2 Any failure by a party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement will not be a waiver of those terms or conditions or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
8.3 Nothing in this Agreement will be deemed to constitute a partnership between the parties nor constitute any party the agent of the other party.
8.4 The Customer's agents are not authorised to make any representation concerning the Services and no representations will bind ZINADOO unless they have been confirmed in writing by a director of ZINADOO.
8.5 In the event that any of these terms or conditions are held to be invalid or unenforceable this will not affect the validity and enforceability of all remaining provisions.
8.6 Where this Agreement relates to more than one Service or instance of Services, this Agreement will be deemed to be a separate and severable agreement in respect of each Service.
8.7 In the event of any inconsistency or conflict between any of the documents which comprise this Agreement such documents will be deemed to have the following order of precedence to the extent required to resolve such inconsistency or conflict: these terms and conditions, the Schedules.
8.8 This Agreement will be governed by and construed in accordance with the laws of Ireland and the parties hereby submit to the exclusive jurisdiction of the Irish Courts.
9.1 In construing this Agreement:
Agreement means these terms and conditions, the Schedules hereto, and any other conditions or schedules which the Customer and ZINADOO may agree from time to time, in writing, will constitute part of this Agreement.
Associated Company' means any company which is, or is a subsidiary of, the ultimate holding company of the relevant company, where 'subsidiary' and 'holding company' having the meanings ascribed to them in section 736 of the Companies Act 1985.
Charges' means all the charges associated with the Services, including charges of any Service Provider as used by ZINADOO, described in any schedule to this Agreement or as otherwise advised by ZINADOO.
Client' means a client or customer of the Customer which wishes to send Short Messages to end-users via the Services;
Codes' means all applicable codes of practice, guideline, rulings or regulations of any competent authority relating to the Services which may be introduced or made from time to time during the term of this Agreement and compliance with which is obligatory on the part of the Customer or to which it has agreed to be bound (including but not limited to those issued by Regtel).
Data List' means the mobile telephone numbers of Customer's end-users who, as a consequence of supply of the Services, will send or be sent Short Messages;
Forecast' means a forecast of Short Message traffic expected to be sent by the Customer through the Services.
Protected Data' has the meaning set out in Clause 5.3.
Regulator' means the relevant national telecommunications regulatory authority or any other body with competent jurisdiction from time to time.
Service Provider' means any third party used by ZINADOO to provide the Services including any operator of a telecommunications network.
Service Revenue' means the sums payable (if any) to the Customer by ZINADOO in accordance with Schedule 1 after deducting all applicable taxes and Charges.
Services' means the services to be provided by ZINADOO to the Customer under this Agreement, as described in Schedule 1 and in accordance with the service levels also set out in Schedule 1, and any other services ZINADOO agrees to provide.
Short Message' means a message comprising numerals and/or text and any other form of message ZINADOO agrees to provide.
Systems' means the facility made available from time to time by ZINADOO for the purpose of conveying Short Messages and supplying the Services and may include a Service Provider's network.
Reverse Billing' means that the owner of the recipient phone rather than the message sender is charged for the cost of the message received. It is also called MT (Mobile Terminated) Billing. Reverse billed messages are only sent if specifically requested by the phone owner. A daily horoscope alert is an example of a service where owner receives regular reverse-billed messages.
Web Phone Book
Text Poll Service
ZINADOO makes no warranties or representations about the quality or reliability of the Services other than those which set out in this Agreement.
Any connection
to the Systems which is via the public internet is at the Customer's
risk and ZINADOO accepts no liability
for the performance or maintenance of the public internet or the Customer's
connection to it.
ZINADOO makes
no warranty or representation as to the
performance of the Systems to which connections
are made or the actual delivery of an SMS Message to an end-user or
Customer.