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A. M:Science is a provider of mobile messaging services.
B. Customer wishes to obtain, and M:Science is willing to provide, such services on the terms of this Agreement.
C. The parties will enter into a discrete Service Addendum in respect of each separate supply of Services under this Agreement.
1 Definitions and Interpretation
1.1 In this Agreement, the following terms shall bear the meanings attributed to them below:
1.1.1 “Agreement” means these operative provisions, together with each of its Schedules and each Service Addendum entered into under it;
1.1.2 “Allocated Number” means any specific telephone or text number or code (such as a short code) to be entered by End-users, allocated to the Customer for the Services, either dedicated to the Customer or to be shared with one or more other customers;
1.1.3 “Billable Event” means
(i) for MT: the acceptance by M:Science of a message submitted to the Platform
(ii) for MO: the receipt of a message on the Platfrm;
1.1.4 “Commencement Date” means the date specified in the Service Addendum for the commencement of the Services to which the Service Addendum relates;
1.1.5 “Customer Rights” means all Intellectual Property Rights subsisting in and in relation to Customer Content;
1.1.6 “Customer Content” means any information provided by or on behalf of the Customer for transmission by M:Science as part of the Services;
1.1.7 “Customer Data” means any personal data (a) comprised in or relating to any message, (b) which is provided by the Customer or any of its direct or indirect customers, or (c) in respect of MO, from any End-user;
1.1.8 “End-user” means any user of the relevant Network Operator’s mobile network;
1.1.9 “Intellectual Property Rights” means all copyright (including but not limited to rights in computer software), patents, trade marks, trade secrets, registered and unregistered design rights, database rights and topography rights, all rights to bring an action for passing off, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
1.1.10 “M:Science Data” means data, excluding (for the avoidance of doubt) Customer Data, which is provided or generated in the course of M:Science’s provision of the Services;
1.1.11 “M:Science Rights” means all Intellectual Property Rights subsisting in and in relation to any aspect of the Services, the Platform or any device, software or data used in connection therewith, including without limitation the M:Science Data;
1.1.12 “MO” (or “Mobile Originated”) means a message received by M:Science from a Network Operator or Aggregator (such as, without limitation, a mobile-originated SMS);
1.1.13 “MT” (or “Mobile Terminated”) means a message sent by M:Science from the Platform to a Network Operator’s mobile network;
1.1.14 “Network Operator” means a mobile network operator which is directly or indirectly engaged in the performance of any of the Services;
1.1.15 “personal data” bears the meaning attributed to that phrase in the Data Protection Directive 95/46/EC (and any national implementation of that Directive) or any successor or supplement to that Directive or national implementation;
1.1.16 “Platform” means the mobile application services platform, and associated systems and network connections, owned and operated by M:Science or by suppliers or partners of M:Science, which is used to provide the Services under this Agreement;
1.1.17 “Protocol Specification” means the protocols to be used by the Customer in order to access the Services, as notified by M:Science to the Customer from time to time;
1.1.18 “PSMS Terms and Conditions” means the Premium SMS Terms and Conditions specified in Schedule 2;
1.1.19 “Regulator” means any relevant regulator or other authority, voluntary or otherwise, including, without limitation, (a) in relation to Premium SMS, the Independent Committee for the Supervision of Standards of Telephone Information Services and/or ICSTIS Limited in the United Kingdom, (b) the relevant Data Protection Authorities in the country where the Customer markets or provides its Services, (c) any Regulator identified in the Service Addendum, and (d) any other legally empowered body or person;
1.1.20 “Revenue Share Payment” (or “Outpayment”) means a payment from M:Science to Customer in the amount specified in the Service Addendum;
1.1.21 “Rights” means the Customer Rights and the M:Science Rights, respectively;
1.1.22 “Service” and “Services” mean the managed mobile infrastructure services and/or other services of M:Science, as defined in the relevant Service Specifications, which M:Science is to supply under any Service Addendum;
1.1.23 “Service Addendum” means a Service Addendum properly executed by the parties under this Agreement in accordance with Clause 2 below;
1.1.24 “Service Interface” means the method to be used by the Customer to connect to the Platform;
1.1.25 “Service Level Agreement” (or “SLA”) means the document of that name attached to this Agreement as Schedule 1;
1.1.26 “Service Specifications” means M:Science’s documentation detailing the features of M:Science’s services, as such Service Specifications may be specified in a Service Addendum, and as they may be updated by M:Science from time to time;
1.1.27 “Subcontractor” means any client or other third party with which the Customer contracts for the provision of any or all of the Services; and
1.1.28 “Term” means the duration of this Agreement, as specified in Clause 13, save as earlier terminated in accordance with the provisions of this Agreement.
1.2 References in this Agreement to “M:Science” and “Customer” shall include their respective employees, agents, sub-contractors, consultants and permitted assigns.
1.3 Headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement.
1.4 Unless the context otherwise requires, the singular includes a reference to the plural and vice versa.
1.5 Words and phrases defined in any part of this Agreement, being these operative provisions, its Schedules and the relevant Service Addendum, shall bear that meaning throughout the other parts of this Agreement, save to the extent otherwise expressly provided therein.
1.6 References to Clauses, Paragraphs and Schedules are, unless otherwise provided, references to the clauses and paragraphs of and schedules to this Agreement.
1.7 Unless the context otherwise requires, any reference in this Agreement to any specific statute shall include a reference to any modification or re-enactment thereof.
2 The Services and the Service Addendum
2.1 In consideration of the Customer satisfying its obligations under this Agreement, M:Science shall provide the Services in accordance with this Agreement from the Commencement Date until:
whichever is the earlier to occur.
2.2 The Customer may request additional or amended services by completing a Service Addendum. Each Service Addendum which is accepted, agreed and executed by M:Science will be appended to and form part of the Agreement.
2.3 Each Service Addendum shall address, inter alia:
2.4 Where the Service Addendum specifies Premium SMS Services are being taken by the Customer, then (subject to Clause 2.3(d) above) the PSMS Terms and Conditions shall apply thereto.
2.5 The Customer acknowledges and agrees that:
provided that if such a change causes substantial adverse change to the performance of the Services, or necessitates the incurring of substantial additional expense by the Customer, then the Customer shall be entitled to terminate this Agreement by thirty days’ notice to M:Science.
2.6 M:Science acknowledges that the Customer shall be entitled to on-provide the Services to its Subcontractors, on condition that the Customer continues to comply with all of its relevant obligations under this Agreement.
2.7 To the extent of any conflict or inconsistency between a Service Addendum and the operative provisions of this Agreement, the Service Addendum shall take precedence in respect of the Services and other matters which are the subject of that Service Addendum. Each individual Service Addendum shall be discrete and shall relate only to the Services which are the subject of it, and accordingly the contents of any individual Service Addendum shall not affect the content of any other Service Addendum or the Services which are the subject of the latter Service Addendum, save only as may be expressly provided in either Service Addendum.
3 Customer Commitments
3.1 The Customer warrants and undertakes to M:Science as follows:
3.2 Without limiting Clause 3.1 above, the Customer undertakes not to use the Services or permit the Services to be used:
3.3 M:Science may request:
and the Customer agrees to comply with any such request as soon as reasonably practicable, and with such degree of detail as M:Science may reasonably require.
3.4 The Customer acknowledges that the Network Operators have a base of End-users across all age groups. Customer shall be responsible for the Services delivered to End-users and shall take all appropriate measures to procure that the content of each of the Services is not inappropriate for the End-user.
3.5 The Customer also acknowledges that:
4 Compliance and Regulators
4.1 The Customer agrees:
4.2 In the event that any Network Operator or Regulator:
then M:Science shall be entitled to recover from the Customer the amount thereof, plus any costs or expenses incurred by M:Science in connection with the incurring of such liability or the relevant charge, fine, debit or deduction.
5 Price, Payment and Currency
5.1 The charges for the Services shall be at the pricing set out in the relevant Service Addendum as adjusted from time to time pursuant to this Clause. In the event that the relevant Service Addendum does not refer to any specific pricing, the Services shall be performed at M:Science’s then current standard charges, which M:Science will notify to the Customer upon request.
5.2 M:Science shall be entitled to change the pricing which applies to Services by:
In the event that a Price Change Notice is served, the Customer shall have the rights of termination specified in Clause 12.3(b)(ii) below.
5.3 Where the Service Addendum specifies that the Customer is to pre-pay charges to M:Science for Services provided under that Service Addendum, then:
5.4 All amounts payable under the Agreement are exclusive of any value added tax that may be payable. The Customer will pay all such value added tax at the rate and in the manner required by law.
5.5 All charges for the Services and the Billable Events shall be calculated by reference to data recorded by M:Science. The unique reference number for a Billable Event retained by M:Science’s records shall, in the event of any dispute, serve as proof of the occurrence of such Billable Event.
5.6 For the avoidance of doubt a message charge is incurred by the Customer each time a Billable Event occurs, at the rates referred to in Clause 5.1.
5.7 Save to the extent otherwise provided in the relevant Service Addendum, the fixed or variable nature of the pricing for Services shall be governed by the relevant terms of the Service Addendum.
5.8 Where an invoice is issued for sums payable to M:Science by the Customer under this Agreement:
5.9 Unless otherwise agreed in writing between the parties;
5.10 Where Outpayments are specified in a Service Addendum and are due to Customer, Customer shall be paid as follows:-
5.11 Where M:Science owes to the Customer any sums, or holds any sums on its behalf (including, without limitation, pre-paid charges referred to in Clause 5.3 above), then M:Science shall be entitled to set off against any such sums any amounts owed to M:Science by, or which M:Science is entitled to recover from or credit against, the Customer under or in connection with any Service Addendum or this Agreement.
5.12 Where M:Science is due to make any payment to the Customer under this Agreement, M:Science shall be entitled, but not obliged, to retain such amounts and pay them to the Customer only once they exceed £1,000.00 (one thousand pounds).
5.13 If an End-user contacts M:Science in relation to the Services M:Science shall redirect or transfer such End-user to the support facilities of Customer, or, if such a transfer is not, in M:Science’s opinion, reasonably practicable, for any reason (including, without limitation, by reason of any unwillingness by the End-user to be redirected to the Customer), then M:Science may itself provide an initial response to the query or complaint. M:Science shall have the right to charge the Customer the sum of £5 in respect of each individual telephone or other contact made by an End-user with M:Science or any agent of M:Science. M:Science does not warrant that any response it gives to End-users as provided in this Clause will be appropriate to the Services, or would be similar to the response which the Customer would give.
5.14 If any Network Operator makes a charge to or deduction from outpayments due to M:Science for calls made to such Network Operator by any End-Users, then M:Science shall be entitled to recover the amount of any such charges or deductions.
5.15 In the event that any payment due under the Agreement is not paid on the due date for payment then M:Science shall be entitled to charge interest thereon at the rate of five percent per annum over the base rate of National Westminster Bank Plc from time to time from the date payment becomes due until payment in full. Such interest shall accrue daily.
5.16 If the pricing for Services in a Service Addendum is expressed in a currency other than pounds sterling, then, in respect of that Service Addendum only, sums expressed in this Agreement in pounds sterling shall, at the relevant time, be converted into that currency at the then-current conversion rate for business transactions of National Westminster Bank Plc.
5.17 Obligations under this Clause 5, other than under Clause 5.12, shall survive any termination of this Agreement.
6.1 For the purpose of this Agreement, “Confidential Information” shall mean all Intellectual Property Rights, drawings, software, data, specifications, processes, testing procedures, customer information, financial information, product and services information and all other technical, business and other information and material relating or belonging to a party or its customers which is in the course of the performance of this Agreement obtained by either party in relation to the other, either directly or indirectly.
6.2 Confidential Information shall not include:
6.3 Each party hereby agrees, other than as permitted by the Agreement, to keep the Confidential Information of the other in complete confidence and not to disclose the same to any third parties (except as set out above), nor use it for any purposes other than for the performance of its duties under the Agreement (the “Specific Purposes”). Either party may disclose the Confidential Information of the other to its employees but only to the extent reasonably necessary for the Specific Purposes and subject to the recipient being subject to obligations of confidentiality relating to that Confidential Information no less stringent than the requirements of this Clause. Each party hereby agrees to use reasonable endeavours to ensure that all such employees do not disclose Confidential Information of the other party to third parties or use the same otherwise than as reasonably required for the Specific Purposes. The provisions of this Clause shall continue in full force and effect notwithstanding the termination of the Agreement for any reason whatsoever.
7 Warranties / Liability
7.1 M:Science warrants that the Services will be performed with reasonable care and skill with the objective of meeting the requirements of this Agreement, including (without limitation) the Service Specifications and the Service Level Agreement.
7.2 M:Science shall be liable as expressly provided in the Agreement, but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise.
7.3 Nothing in the Agreement shall exclude or restrict M:Science’s or the Customer’s liability for death or personal injury resulting from its negligence.
7.4 Subject always to Clause 7.5, M:Science shall be liable for direct loss or damage only, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, arising out of or in connection with this Agreement and whether caused by its act or omission or that of its employees, agents or subcontractors. M:Science’s aggregate liability during any successive period of twelve months, the first of which shall be deemed to begin on the Commencement Date (each a “Year”) shall be limited to the greater of (a) the aggregate of the charges paid or payable by the Customer to M:Science under this Agreement in respect of such Year, or (b) £10,000 (ten thousand pounds).
7.5 M:Science shall not be liable to the Customer or any other person or entity, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:
howsoever caused or arising, whether through non-supply or late supply of Services or other non-performance of the Agreement or otherwise.
7.6 Except as expressly stated elsewhere in the Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, save in the case of fraud.
7.7 M:Science shall have no liability to the Customer or any other person for or in respect of any Customer Content, Customer Data or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other act or omission of the Customer
7.8 M:Science will use reasonable endeavours to meet any dates agreed between the parties in writing for the commencement of the Services.
7.9 If M:Science shall fail to meet any service level or other requirement specified in the Service Level Agreement, then M:Science’s entire liability, and the Customer’s entire remedy, shall be for M:Science to use reasonable endeavours to correct such failure in future deliveries of the affected Services.
7.10 The provisions of this Clause 7 shall survive the termination or expiry of the Agreement.
8 Intellectual Property Rights
8.1 Ownership of all M:Science Rights shall vest in and remain with M:Science.
8.2 M:Science shall license to the Customer for the term of the Agreement such use of M:Science Rights as is directly and unavoidably required by the Customer to use the Services (including any documentation or software which M:Science makes available to the Customer for use pursuant to this Agreement).
8.3 The Customer shall license to M:Science, on the basis set out in this Clause, the Customer Rights in order that M:Science is enabled to provide the Services in accordance with this Agreement.
8.4 Any licence granted under this Clause 8 shall be non-transferable, non-sublicensable, non-exclusive and royalty-free and shall be limited to the Term in respect of the Services to which the licence relates and shall be granted only for the purpose of fulfilling the respective party’s rights and obligations under this Agreement.
8.5 Each party warrants to the other that it is the owner of its respective Rights or is entitled to license its respective Rights as provided under Clauses 8.2 or 8.3, as applicable.
8.6 Neither party shall reverse engineer, decompile or disassemble any software comprised in the other party’s Rights save to the extent expressly permitted by applicable law.
9 Non-solicitation of Employees
Both parties agree, during the Term and for a period of six (6) months thereafter, not directly or indirectly (other than by general advertising) to solicit employ or engage, or endeavour to do so, any employees of, or any contractors used by the other party in the performance of its obligations under this Agreement without the prior written consent of the latter party.
10 Non-assignability and Third Party Rights
10.1 The Customer may not without M:Science’s prior written consent, transfer or assign or otherwise deal with any or its rights and obligations under this Agreement. Notwithstanding any subcontracting by the Customer of any of its obligations under this Agreement, the Customer shall remain liable for performing those obligations.
10.2 The Customer acknowledges that M:Science shall be entitled, by notice in writing to the Customer, to assign any or all of its rights and obligations under this Agreement to any third party.
10.3 The parties to this Agreement do not intend that any terms of this Agreement should be enforceable by any person or entity who or which is not a party to this Agreement.
The Customer shall indemnify M:Science and keep M:Science fully and effectively indemnified against all costs, claims, demands, liabilities, actions and proceedings made by any person or entity (including, without limitation, any Regulator) arising out of or in connection with (a) any breach of this Agreement by Customer, or (b) the provision or use of the Services by any person or (c) the conduct of Customer's business.
12 Suspension and Termination
12.1 M:Science may in its sole discretion suspend provision of the Services at any time in the event that:
12.2 Where M:Science determines in its discretion it is practicable to do so, then M:Science shall effect any such suspension only in respect of those Services which are affected by the matters referred to in the above sub-Clauses.
12.3 The Agreement may be terminated prior to expiration of the Term by notice in writing as follows:
12.4 Upon termination or expiration of the Agreement the Customer shall deliver to M:Science all material containing any of the Confidential Information of M:Science within fourteen (14) days of such termination or expiration or (at the option of M:Science a statement confirming that such copies have been destroyed) and M:Science shall return to the Customer all material provided in documentary form by the Customer to M:Science containing information in the nature of Confidential Information of the Customer which it holds; provided that (a) M:Science shall not be obliged to return such material to the Customer where in doing so M:Science would be likely to compromise the confidentiality of any other person’s confidential information); and (b) M:Science shall be entitled to retain and use all Confidential Information of the Customer including but not limited to MSISDN numbers provided by the Customer to M:Science as part of the Customer Data or Customer Content notwithstanding termination of the Agreement for so long as is required by M:Science in connection with the performance by M:Science of obligations owed to third parties or in order to satisfy legal or regulatory requirements.
13.1 This Agreement shall continue in force until the expiry or termination of all of the Service Addenda entered into under this Agreement.
13.2 Unless otherwise specified therein, unless earlier terminated in accordance with this Agreement, each Service Addendum shall continue until the service by either party of at least ninety (90) days’ written notice to the other party, such notice to expire no earlier than the first anniversary of that Service Addendum’s Commencement Date.
Any public announcement regarding the Agreement and/or the subject matter of the Agreement shall be agreed in writing in advance by the Parties.
15 Data Protection
15.1 The Customer warrants and undertakes that:
16 Force Majeure
16.1 Either party’s performance of any part of the Agreement, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:
16.2 If any such force majeure condition occurs, the non-performing party shall make reasonable efforts to notify the other party of the nature of any such condition and the extent of the delay, and shall make reasonable, good faith efforts to resume performance as soon as possible.
17.1 The Agreement including its Attachment and each Service Addendum constitutes the entire agreement between the parties and supersedes any prior discussions, writings, agreements and negotiations with respect thereto.
17.2 Any amendment to the Agreement must be in writing signed by or on behalf of both parties.
17.3 No waiver of any provision of the Agreement by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of the Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
17.4 The Agreement shall be governed by the laws of England, and the parties hereby submit to the exclusive jurisdiction of the English courts for the resolution of any dispute which may arise in connection herewith.
17.5 Any notice under this Agreement shall be in writing and sent:
17.6 If any portion of the Agreement is determined to be or becomes unenorceable or illegal, such portion shall be deemed eliminated and the remainder of the Agreement shall remain in effect in accordance with its terms as modified by such deletion.
1.1 “Available” means capable of being accessed substantially in accordance with the Service Specification.
1.2 “Delivery Latency” means the average time it takes for the first delivery attempt of a message, measured from entry into the Platform to first delivery attempt to an End-user’s mobile phone handset.
1.3 “Excluded Time” has the meaning attributed to it in Paragraph 2.3 below.
1.4 “Failure” means any failure of the Services to operate in accordance with the Service Specification, save arising during or as a result of any Excluded Time.
1.5 “Latency” means the average time it takes for a message to pass through the Platform measured from entry into the Platform to first submission into a Network Operator’s network for delivery.
1.6 “Long Number” means the MSISDN Allocated Number(s) provided by M:Science to Customer for receipt of text messages by the Platform.
1.7 “Network Operator Mobile Network” means the network of a Network Operator in a Subscribed Country.
1.8 “Notionally Available Time” means the total amount of time in a given period, minus all Excluded Time.
1.9 “Planned Maintenance” means maintenance of which M:Science provides to the Customer at least 48 hours advance notice.
1.10 “Platform Availability” means the proportion, expressed as a percentage, of the Notionally Available Time during which the Platform is Available.
1.11 “Short Code” means the Network Operator short code provided for the receipt of text messages by the Platform.
1.12 “Subscribed Country” means a country for which the Customer has expressly ordered Services under a Service Addendum.
1.13 “Throughput” means the average number of messages per second the Platform is able to receive from Customer (for MT messages) or pass to Customer (for MO messages).
2.1 M:Science will make the Platform available to the Customer and will pass messages to and accept messages from the Customer, provided they are submitted and received using the M:Science SMS Server product v5 or later.
2.2 M:Science will use reasonable endeavours to ensure that, during each month:
For the purposes of (a), the Platform will be deemed not Available during time other than Excluded Time when the Platform has either a lower average Throughput than the level specified in (b) above or a higher average Latency than the level specified in (c) above.
2.3 In this Service Level Agreement, Excluded Time means any time during which:
(b) a substantially equivalent failover platform is made available by M:Science to the Customer.
2.4 M:Science will use reasonable endeavours to ensure that Network Operators’ network changes do not affect the performance of the Service.
3 Failure Classifications
3.1 All Failures shall be reported by the Customer to M:Science in accordance with Paragraph 4 below, stating the nature of the Failure and information required for its resolution. For the purposes of this SLA, a Failure will be deemed to have been reported at the earlier of (a) when M:Science’s Service Desk receives a report of it in accordance with Paragraph 4.1, either through e-mail or by telephone, or (b) when M:Science opens a ticket in the M:Science system to track the Failure.
3.2 Once a Failure has been reported and M:Science has performed initial investigations, M:Science will respond to the Customer by email with the following information:
3.3 M:Science will classify Failures as follows:-
3.4 Economy Products. All Severity I or II Failures on Economy Products will be treated as Severity III under this SLA. The relevant Service Addendum will specify whether Services are Economy Products.
3.5 Failures will be closed when M:Science reasonably determines that closure of the Failure has occurred.
4 Failure Reporting
4.1 Customer shall report Failures to M:Science using the following methods:
5 Target Response & Fix Times
Note that all times quoted are expressed in Working Hours.
|Failure Severity||Target Response Time||Target Maximujm Fix Time|
|I||1 Hour||4 Hours|
|II||2 Hours||1 Day|
|III||1 Day||2 Days|
|IV||1 Day||5 Days|
Target Maximum Fix Time applies only to Failures within the direct control of M:Science; no Target Maximum Fix Time shall be deemed to apply to any other types of Failure.
6 Escalation Matrix
|Severity I||Severity II||Severity III||Severity IV|
|Level I||Immediate||1 Day||2 Days||5 Days|
|Level II||4 Hours||2 Days||4 Days||10 Days|
|Level III||8 Hours||4 Days||8 Days||15 Days|
7 Contact Details and Escalation Paths
|Level I||Support Manager||Account Manager|
|Level II||Development Manager||Sales Director|
|Level III||Technical Director||Managing Director|
The above matrix is followed internally by M:Science. If the Customer wishes to escalate, the Customer must inform the Service Desk or Account Manager who will escalate to the relevant person.
8 Throughput and Latency for SMS Services
8.1 For MT Premium Rate Messages, M:Science’s target is that the Platform:
8.2 M:Science’s target is to pass messages to the Customer at the rate received by M:Science from the relevant Network Operator Mobile Network at a Throughput of up to 2 messages per second.
9 Conditions for Throughput and Latency
Throughput and Latency targets in this SLA:
9.1 are conditional upon the Customer sending and receiving messages at the relevant rate;
9.2 for MO Premium and MO non-Premium services, are conditional upon the relevant Network Operator(s) sending messages to M:Science at the relevant rate;
9.3 for non-Premium MT SMS services to non-GSM networks and MT Premium Rate Messages to any network, Throughput is conditional upon the relevant Network Operator(s) being able to receive messages from M:Science at this rate;
9.4 refer to the aggregate Throughput for all Services which are the subject of a specific Service Addendum; and
9.5 apply discretely to the Services which are the subject of any given Service Addendum, and are independent of Throughput and Latency targets for the Services which are the subject of any other Service Addendum.
9.6 M:Science will work with Network Operators with the object of arranging for sufficient capacity in the Network Operator Mobile Networks to meet any agreed MO traffic and message throughput forecasts.
9.7 If so requested by M:Science in respect of MO applications expected by either the Customer or M:Science to exceed 2 messages per second, such forecast will be derived from a capacity model provided by Customer and agreed in writing by M:Science. At the Customer’s request, M:Science will assist in development of such capacity model. If changes to an existing capacity model and/or forecast are agreed between M:Science and the Customer, then M:Science will work with Network Operators to implement the changes which are required as a result as soon as is reasonably practicable.
9.8 M:Science will use reasonable endeavours to work with Network Operators with the objective of fixing any problems encountered in the receipt of messages by the Platform.
9.9 M:Science will use reasonable endeavours to ensure that there is sufficient network capacity for the Platform to receive messages at a Throughput of 2 msg/sec.
9.10 M:Science will ensure that the Platform makes the Allocated Number(s) available for receipt of messages from the Network Operators.
10.1 M:Science may require short periods of unavailability of Services for maintenance reasons and in order to implement changes and upgrades.
10.2 M:Science will use reasonable endeavours to perform maintenance which requires the unavailability of the Services, or which is reasonably likely to have an adverse effect upon the Services between the hours of 19:00 to 06:00 UK Time
10.3 In the case of un-planned maintenance M:Science shall provide 24 hours notice whenever reasonably practicable, and in the case of emergency maintenance M:Science shall provide as much advance notice to Customer as is reasonably practicable.
10.4 M:Science will use reasonable endeavours to give the Customer:
10.5 M:Science shall use its reasonable endeavours to conduct maintenance under this paragraph so as to minimise adverse impact on customers.
11 Termination conditions
The following shall constitute events giving rise to a right of the Customer to terminate a specific Service Addendum and the Services provided thereunder under Clause 12.3(b) of the Agreement by 30 days’ notice in writing to M:Science given during the 30 day period following the end of a calendar month during which:
11.1 more than 3 Severity I Failures are properly reported by the Customer; and
11.2 more than 5 Severity II Failures are properly reported which adversely affect at least 25% of the Customer’s messages sent under the relevant Services.
SCHEDULE 2 - PREMIUM SMS TERMS AND CONDITIONS
1.1 “Customer Care Form” means a document in the form notified to the Customer by M:Science from time to time that details information that the Network Operators’ customer care departments need to respond adequately to End-users who call in with complaints or queries about the Services.
1.2 “MO Premium Rate Message” means an SMS text message sent by an End-user to an Allocated Number.
1.3 “MT Premium Rate Message” means a mobile-terminating premium rate SMS message sent by Customer through the Platform to an End-user in response to a Service Request.
1.4 “Multiple Request” means a request from an End-user (capable of Validation as originating from such End-user) to Customer or to M:Science to prompt a certain (or indefinite) number of MT Premium Rate Messages to be sent to such End-user’s mobile phone at predetermined intervals, or upon the occurrence of predetermined events.
1.5 “Permitted Premium Rate Services” means the provision of such Premium Rate Messages as are:
in each case, such approval not to be unreasonably withheld.
1.6 “Premium Rate Message” means MO Premium Rate Message and MT Premium Rate Message, and either of them.
1.7 “Service Request” means a Single Request or a Multiple Request.
1.8 “Single Request” means a request from an End-user (capable of Validation as originating from such End-user) to Customer or to M:Science to prompt a single MT Premium Rate Message to be sent to such End-user’s mobile phone.
1.9 “Validation” means a process (acceptable to M:Science in accordance with Paragraph 3.4 below) by which Customer can prove that a Service Request originated from the End-user to whom the relevant MT Premium Rate Message was sent.
2 Customer Commitments
Customer accepts full responsibility for obtaining permission from End-users to send MT Premium Rate Messages to them and charge them money for receiving such messages using the Service including responsibility for any Network Operator or Regulator-imposed fines that may result from non-compliance with this or other conditions.
3 Matters relating to the sending of MT Premium Rate Messages
3.1 Customer shall be entitled to provide Permitted Premium Rate Services to End-users provided that:
3.2 Customer shall not provide any Premium Rate Message services to End-users which are not Permitted Premium Rate Services.
3.4 Methods of Validation which are acceptable to M:Science shall be stipulated in writing to Customer from time to time. In the event that Customer wishes to use any other method, it shall first obtain the prior written approval of M:Science (which approval M:Science shall not unreasonably withhold), absent which such method shall be deemed invalid for the purposes of this Paragraph. Current methods of Validation must include either:
3.5 Customer shall procure:
3.6 Breach of any part of this Paragraph 3 by Customer will entitle M:Science to suspend immediately all Services run by Customer under this Agreement until such time as it is satisfied, acting reasonably, that such breach will not be repeated in the future.
4 Revenue Share Payments
4.1 In the event a Network Operator is unable to collect funds from an End-user, no payment will be due to the Customer for that End-user.
4.2 Calculation of Revenue Share Payments shall be made with reference to Network Operator billing information and accordingly in the event of any dispute, Network Operator billing information shall be conclusive.
4.3 For shared Allocated Number services, Revenue Share Payments from Network Operators will be pro-rated across all users of the Allocated Number based on message volumes, in order to calculate the sum due to the Customer.
4.4 Any SMS delivery costs or other charges made to M:Science by the Network Operator in the event of non-collection of funds from an End-user will be deducted from payments due to the Customer.
5 End-user support
5.1 Customer’s right to launch a new Premium Rate Service is conditional upon Customer first completing and returning electronically to email@example.com (or other such email address as notified to Customer by M:Science) a Customer Care Form which satisfies the relevant mobile Network Operators that the Services will be run in accordance with the terms of this Agreement. At its discretion, M:Science may require tests to be run on a new Premium Rate Service before deciding whether or not it can go live. Customer shall continue to be obliged to keep M:Science informed (promptly) of any changes to the details on the Customer Care Form throughout the term of this Agreement.
5.2 Customer shall be responsible for ensuring that adequate support (for instance, the provision of a telephone support help line relevant to the Services to be operational during business hours) is provided for all End-users in relation to the Services and shall be required to inform End-users of any related routes of contact in relation to the Services.
5.3 Customer accepts all responsibility and liability for any payments made to End-users in compensation for Premium Rate Message that are not solicited (that is, not properly sent in accordance with the terms of this Agreement) or sent after an End-user has exercised the right to cancel described in Paragraph 3.5(e). This liability extends to any ex-gratia payment made by the Network Operator where a failure by Customer to respect cancellation by an End-user has occurred. For the avoidance of doubt:
5.4 Customer agrees promptly to reimburse M:Science for any charges levied by Network Operators for actions undertaken in relation to the Customer or any End-Users (such as, without limitation, charges for calls made to call-centres by End-Users). M:Science shall include an invoice for any such payments as part of the billing information provided to Customer.
5.5 Where an End-user is entitled to any refund in respect of Premium Rate Services or MT Premium Rate Messages, Customer shall be obliged to refund such End-user the amount that such End-user paid for such Services or MT Premium Rate Messages, and not just the relevant Revenue Share Payment received by Customer. This provision shall be enforceable by M:Science on behalf of End-users.
6 Association of Services with M:Science
6.1 Customer must ensure that the Services are of a quality and kind likely that is not likely to bring M:Science or the Network Operators into disrepute. Whether or not the Services comply with this Paragraph shall be a matter to be determined by M:Science in its sole discretion, albeit M:Science will act reasonably.
6.2 Customer must not state or imply any approval by M:Science or the Network Operator of the Services or refer to M:Science without the express and prior approval in writing of M:Science. Notwithstanding the foregoing, Customer is entitled to refer to M:Science or the relevant Network Operator and its services to the extent necessary in order to inform End-users or potential End-users about the Services and their use and in order to fulfil its obligations under this Agreement, applicable laws and/or regulations.
7 Network issues
7.1 The Customer shall consult with M:Science (at M:Science’s request) with a view to ensuring that the number of attempted Service Requests (via SMS) and Premium Rate Messages at any time does not significantly exceed M:Science’s capacity or the relevant Network Operator’s SMS capacity.
7.2 In the event that (a) such capacity is exceeded, or (b) M:Science believes, acting reasonably, that such capacity is likely to be exceeded, then upon receipt of any notice thereof given by M:Science to the Customer, the Customer shall promptly take all reasonable steps to prevent such excess.
7.3 The Customer acknowledges that if M:Science is unable to contact Customer for the purposes stated in Paragraph 7.2 or the Customer fails promptly to prevent such excess, M:Science shall be entitled to take whatever action it deems appropriate to prevent such excess, including temporarily suspending the availability of the Services to End-users, as provided in Paragraph 7.5.
7.4 The Customer shall give to M:Science at least 14 days' written notice before advertising any of the Services on television, whether by terrestrial, cable, satellite or otherwise.
7.5 Without prejudice to M:Science’s other rights under this Agreement, any breach of Paragraph 7.2 by Customer, and in any event any exceeding of M:Science’s or the relevant Network Operator’s SMS capacity, will entitle M:Science to suspend all Services under this Agreement immediately, and to keep them suspended until such time as it is satisfied, acting reasonably, that such breach or excess will not be repeated in the future.